[1] This is an application for judicial review of a decision by a Senior Immigration Officer [Officer] dated October 25, 2023 [Decision]. The Officer acts as a delegate of the Minister in this case and exercised the powers of the Minister. The Officer refused the Applicant’s application for permanent residence on Humanitarian and Compassionate [H&C] grounds made under s 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] Briefly, the Applicant arrived in Canada as a “tourist”
from the Philippines in 2013 and has lived and worked here unlawfully for the past 12 years. He says his agent misrepresented that he could work after arriving in Canada, that he found out after his arrival that is untrue, but decided to stay anyway and eventually applied for permanent resident status on H&C grounds. His application was primarily based on BIOC, especially his 15 year-old son, and hardship on his mother and three daughters who live in the Philippines and to whom he has been remitting some $2600 dollars a month. He also claimed establishment and hardship such as climate change in the Philippines on his return.
[3] Notwithstanding the very able submissions of counsel for the Applicant, this application will be dismissed primarily because it asks the Court to reweigh and reassess virtually all and certainly a great deal of the record, which and with respect, was reasonably reviewed by the Minister’s Officer already. Such reweighing and reassessing forms no part of judicial review according to the Supreme Court of Canada and our Federal Court of Appeal, unless there are exceptional circumstances which is not the case here.
II. Facts
[4] The Applicant is a 53-year-old male citizen of the Philippines.
[5] This is a redetermination of his second H&C application. His first was refused in June 2022. His second was refused in June 2023, but reopened for determination after he applied for leave for judicial review.
[6] The Applicant entered Canada in 2013 on a tourist visa. He says he obtained this visa through an agency which he paid about $10,000 through a loan from the bank. He says this agency told him he could work in Canada on this visa, and found out this was not true after arriving. He says he previously attempted to come to Canada in 2011 through a different agency who scammed him out of another $2,300. He decided to stay unlawfully and to work unlawfully in Canada anyway.
[7] The Applicant now expresses remorse for living and working in Canada without authorization for more than a decade, but says he felt he had no choice but to do so because he only realized his lack of status after he arrived. I say at the outset this makes no sense. Knowing what he was doing was wrong, he should have left and applied from outside Canada and waited as so many thousands of others do for his case to be decided on its merits, or by lottery or as might be determined by the Minister.
[8] The Applicant’s spouse, three adult daughters (students), and one minor child reside in the Philippines. He earns good money in Canada and sends them about $1,600 per month. This money goes to his children’s tuition, food and clothing, and his wife’s bills. He also sends about $2,000 every two months for his elderly mother’s medications.
[9] The Applicant’s wife and eldest daughter also work in the Philippines but earn approximately $400 per month. His other children are still in school. Notably, his son and youngest child attend a private high school. His son’s letter of support, provided with his H&C application, states this is because the Applicant and his wife wanted to keep him from getting involved in drugs.
III. Decision under review
[10] The Officer’s analysis was based on the Applicant’s establishment in Canada, hardship upon return, and BIOC. The Decision held that while the BIOC factor was “compelling”
in relation to the son, it was not sufficient to warrant an H&C exemption, whether alone or in conjunction with the other factors.
[11] I note the Applicant simultaneously applied for a temporary residence permit [TRP] under s 24 of IRPA. The Officer refused the TRP request because the Applicant did “not explain the basis for the TRP request outside of what is already stated in the H&C application and which [the Officer] found was insufficient to grant an exemption under H&C grounds.”
A. Establishment
[12] Overall, the Officer gave moderate weight to the Applicant’s establishment notwithstanding his decision to stay and work illegally for so long.
[13] The Decision notes the Applicant had resided in Canada (at the time) for approximately 10 years and was well adapted to Canadian life. While the Officer gave favourable consideration to his civil record and community ties, they did not find his establishment to be out of the ordinary. The Officer found his social connections are not “characterized by a degree of interdependence that it would be detrimental to the parties involved,”
and noted the possibility of maintaining these ties “through various communication technologies, much like the applicant has maintained communication with his family in the Philippines over the years.”
[14] The Officer also found the Applicant had not stayed in Canada for reasons beyond his control (which is not disputed), and gave negative weight to his working and remaining in Canada for a decade without authorization. The Decision cites Joseph v Canada (Minister of Citizenship and Immigration), 2015 FC 904 at paragraph 29, which states:
[29] … In my view, the Applicants cannot expect to profit from the years they lived and worked here illegally. Spending more time underground does not entitle those here illegally to achieve greater success on an H&C application. Allowing this argument to succeed would encourage those here unlawfully to remain without regularizing their status, such that the longer they delay, the better they are positioned in terms of H&C relief. Allowing the Applicants’ argument could encourage some not yet in Canada to arrive and go underground, and the longer the better, as occurred here. Those who disrespect and refuse to follow Canadian laws cannot by their misconduct become better placed than those who respect Canadian immigration laws and processes.
B. Adverse country conditions and hardship
[15] The Officer considered the applicant’s age, family status, time away from the country and economic conditions in the Philippines, as well as the Applicant’s financial support of his family. However, the Officer found these factors were insufficient to grant H&C relief:
At the same time, I note the applicant himself was able to obtain a post-secondary education without the benefit of remittances from abroad and worked as an accountant, his wife also works as he has stated. I note that three of his four children are adults now there is little reason why they could not contribute to their own financial situation. While the applicant will likely earn more money in Canada, I point out that an H&C application is not meant to make up for differences in country conditions. Further, it is important to remember that the applicant must demonstrate special circumstances to be permitted to apply from within Canada for Permanent Residence. I note that there are many people who are waiting in their countries for their applications to be processed as required by the Immigration laws of Canada. I do not find that his situation is substantially different from others who would like to come to this country to earn a better income than what they can in their home countries. Finally, I note that high inflation has affected many countries in recent times and is not exclusive of the Philippines. In all, for the reasons stated, I am not of the opinion that the economic factors presented by the applicant are insufficient to grant the applicant an exemption under section A25.1 of the IRPA.
[Emphasis added]
[16] The Officer also considered and gave no weight to the impacts of climate change on the Philippine economy. The Officer found “this issue affects everyone around the world and is not an exclusive problem in the Philippines,”
noting the Applicant did not work in the agriculture industry and did not provide “sufficient personalized evidence that he or his family or more prone to the effects of climate change than anyone else in the Philippines or for that matter around the world.”
C. Best interest of the child
[17] On the BIOC, the Decision states:
The applicant has one minor child who was 15 years old when this application was submitted. Counsel submits that it is in the best interest of the applicant’s son that his father remains in Canada because without the applicant’s remittances the family will not be able to pay for school. The applicant worries because many of his son’s peers are involved in “drug use” and “partying,” he does not want his son to follow that lifestyle. Submitted is a heartfelt letter from his son advocating for his father’s permanent residence in Canada and stating how the remittance his father sends allow him to attend school and have other material belongings such as new clothes and school supplies.
I recognize that the applicant wants to provide his son with financial stability and worries about his teenage son taking a path of “drug use” and “partying”; it is a sentiment that many parents share. I recognize that the applicant wants his son to get a good education and sends his son to a private school. I accept that the child may benefit materially from his father being allowed to remain in Canada. Also, in such a case, the applicant could sponsor his son to come to Canada and I have given weight to these factors.
However, I find that it is usually in a child’s best interest to be close to both their parents; further, I find at times there are less tangible, but equally important, benefits to having his father physically close to him at a pivotal time in his life. In addition, I find that sending his son to a private school is a choice the family makes. According to the US Department of state report (2022), education is free and compulsory through age 18 in the Philippines, albeit, the quality was often poor, especially in rural areas. In all, as I noted in the previous section, I find that even though the applicant may earn less in the Philippines, I find that insufficient personal evidence to establish that the applicant would not be able to find work in the Philippines or that the child could not continue to support his son financially while he working in the Philippines [sic]. Whether the applicant stays here or goes back to the Philippines the child would still have access to an education and other needs, except that in the Philippines he would also be physically together with his father.
The factors concerning the best interest of the applicant’s son constitute a compelling aspect of the application before me, and I have accordingly given them very careful consideration. I conclude, however, that the potential negative impact to the best interests of the applicant’s child that would be occasioned by a refusal of this application is not sufficient to warrant an exemption, either alone or when considered, globally, in conjunction with establishment and other factors cited.
[Emphasis added]
IV. Issues
[18] The Applicant states the following issues:
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1.The standard of review is reasonableness;
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2.The Officer is insufficiently alert, alive and sensitive to the BIOC; and
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3.The Officer’s assessment of hardship is unreasonable.
[19] Respectfully, the issue is whether the Decision is reasonable.
V. Standard of review
[20] The parties agree, and I concur, the standard of review is reasonableness.
A. Reasonableness
[21] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued contemporaneously with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[22] Per the Supreme Court of Canada’s more recent judgment in Mason v Canada (Citizenship and Immigration), 2023 SCC 21, the purpose of reasonableness review is to uphold the rule of law while according deference to administrative decision-makers:
[57] Vavilov explained that the purpose of reasonableness review is “to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law” (para. 82). Reasonableness review starts from a posture of judicial restraint and “a respect for the distinct role of administrative decision makers” (para. 13), arising from the legislature’s institutional design choice to give administrative decision makers rather than courts the jurisdiction to decide certain issues (para. 24). Reasonableness review also serves to “maintain the rule of law” (para. 2) and “to safeguard the legality, rationality and fairness of the administrative process” (para. 13). Thus, the purpose of reasonableness review is to uphold “the rule of law, while according deference to the statutory delegate’s decision” (Canada Post, at para. 29).
[Emphasis added]
[23] Vavilov makes it abundantly clear the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances.”
The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[24] The Federal Court of Appeal held in Doyle v Canada (Attorney General), 2021 FCA 237 likewise confirms the role of this Court is not to reweigh and reassess the evidence unless there is a fundamental error:
[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.
[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.
[Emphasis added]
B. H&C relief under s 25(1) of IRPA
[25] In Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy], the Supreme Court of Canada outlines the test for H&C relief under s 25(1) of IRPA as “whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought”
(at para 101).
[26] In Lewis-Asonye v Canada (Citizenship and Immigration), 2022 FC 1349 Justice Kane summarizes the purpose of H&C exemptions and relevant jurisprudence:
[38] … [S]ubsection 25(1) provides that permanent resident status or an exemption from applicable criteria or obligations of the Act may be granted if justified by H&C considerations. In the present case, the H&C application, if granted, would result in permanent resident status for Ms. Lewis-Asonye while remaining in Canada, rather than returning to Nigeria and again seeking to apply to immigrate to Canada.
[39] In Kanthasamy, the Supreme Court of Canada provided extensive guidance about how subsection 25(1) should be interpreted and applied. The Court endorsed the approach previously set out in Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 IAC 338 [Chirwa], which described H&C considerations as referring to “those facts, established by the evidence, which would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another—so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act.” In Chirwa, the Immigration Appeal Board acknowledged that this definition implied “an element of subjectivity,” noting that there must also “be objective evidence upon which the relief ought to be granted” (Kanthasamy at para 13, citing Chirwa, at p 350).
[40] In Kanthasamy, at para 23, the Court noted that “[t]here will inevitably be some hardship associated with being required to leave Canada,” which on its own is generally not sufficient to grant relief, adding that the H&C exemption was not intended to be an alternative immigration scheme.
[41] The Court explained that what will warrant relief under subsection 25(1) varies depending on the facts and context of each case. The significant aspects of Kanthasamy are the Court’s clear directions to avoid imposing the threshold of unusual, undeserved or disproportionate hardship, which had been applied in previous cases, to consider and weigh all of the relevant facts and factors, and to “give weight to all relevant humanitarian and compassionate considerations in a particular case” (at para 33; see also para 25) [emphasis in original].
[42] In Mursalim v Canada (Citizenship and Immigration), 2018 FC 596, relied on by Ms. Lewis-Asonye, Justice Norris considered the guidance in Kanthasamy and found on the facts of that case that the Officer had applied the wrong test by considering hardship alone and by imposing the “unusual, undeserved and disproportionate” hardship standard rejected in Kanthasamy. At para 37, Justice Norris found:
While the question of hardship is of course germane under s 25(1), and various forms of hardship were emphasized in the applicant’s submissions, the officer used the language of “unusual and undeserved or disproportionate hardship” in a way that limited the officer’s ability to consider and give weight to all relevant humanitarian and compassionate considerations in the applicant’s case (cf. Kanthasamy at para 33; Marshall at paras 33-37).
[43] Although the jurisprudence confirms that the H&C exemption remains “exceptional” (see for example, Huang at para 17), it should not be impossible to obtain.
[44] In Huang, the Chief Justice addressed what is required to meet the Chirwa “test” to warrant an H&C exemption, noting at para 19:
Section 25 was enacted to address situations in which the consequences of deportation “might fall with much more force on some persons … than on others, because of their particular circumstances …”: Kanthasamy, above, at para 15 (emphasis added), quoting the Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, at p. 12. Accordingly, an applicant for the exceptional H&C relief provided by the IRPA must demonstrate the existence or likely existence of misfortunes or other H&C considerations that are greater than those typically faced by others who apply for permanent residence in Canada.
[Emphasis in the original]
[45] In Shackleford v Canada (Citizenship and Immigration), 2019 FC 1313 at para 16, Justice Roy noted that:
Nothing in Kanthasamy suggests that H&C applications are anything other than exceptional: the Chirwa description itself, the fact that it is not meant to be an alternative immigration scheme, the fact that the hardship associated with leaving Canada does not suffice are all clear signals that H&C considerations must be of sufficient magnitude to invoke section 25(1). It takes more than a sympathetic case.
[46] In Turovsci v Canada (Citizenship and Immigration), 2021 FC 1369, Justice Roy noted, at para 26, that the jurisprudence confirms that decision-makers err by using the “language of ‘unusual and undeserved or disproportionate hardship’ in a way that limits their ability to consider and give weight to all relevant Humanitarian and Compassionate considerations in a particular case.” Justice Roy added, at para 30, that “[h]ardship must by necessity be a relevant consideration, but it must not be the only consideration” noting that other H&C considerations may be at play.
[47] In summary, Kanthasamy and the post-Kanthasamy jurisprudence provides the following guidance:
• An H&C exemption is a discretionary and exceptional relief;
• Reviewing courts must not substitute their discretion for that of the Officer;
• While undue, undeserved and disproportionate hardship is not the standard, hardship remains a relevant consideration;
• Some hardship is the normal consequence of removal and that hardship, on its own, does not support granting the exemption;
• Applicants must demonstrate with sufficient evidence that the misfortunes or hardships they will face are relatively greater than those typically faced by others seeking permanent residence in Canada;
• All other relevant H&C factors—not just hardship—must be considered and weighed; and,
• The best interest of the child is an important consideration but is not determinative of an H&C application.
[48] Although the jurisprudence clearly states that an H&C application is not an alternative immigration scheme, where an H&C exemption is justified and is granted, it could be regarded as an alternative to other avenues or ways of immigrating to Canada because it exempts an applicant from other requirements of the Act or overcomes some ineligibility. While the H&C process is not intended to be an applicant’s first option to seek permanent residence, there is no impediment—other than as stated in the Act—to seeking the exemption where other avenues of immigration are not available, or have been exhausted, and where sufficient H&C factors justify the exemption. The Supreme Court of Canada’s guidance in Kanthasamy and adoption of the Chirwa test permits “the misfortunes of another” to be relieved where justified by the “facts established by the evidence.” As noted, while an applicant must demonstrate that their misfortunes are relatively greater than those of others, the misfortunes of not achieving immigration status through other means could be relevant H&C considerations.
[27] A BIOC analysis must “be applied in a manner responsive to each child’s particular age, capacity, needs and maturity”
(Kanthasamy at para 35). An officer must be “alert, alive and sensitive”
to the child’s best interests (Kanthasamy at para 143, citing Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para 75 [Baker]). An H&C decision will be unreasonable “if the interests of children affected by the decision are not sufficiently considered”
(Kanthasamy at para 39, citing Baker at para 75).
VI. Relevant legislation
[28] As noted above, s 25(1) of IRPA governs H&C considerations. It states:
Humanitarian and compassionate considerations — request of foreign national
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Séjour pour motif d’ordre humanitaire à la demande de l’étranger
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25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35, 35.1 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35, 35.1 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
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25 (1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le statut de résident permanent et qui soit est interdit de territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35, 35.1 ou 37 —, soit ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35, 35.1 ou 37 — qui demande un visa de résident permanent, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché
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[Emphasis added]
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[Je souligne]
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VII. Submissions of the parties
[29] The Applicant submits the Decision is unreasonable because the Officer’s BIOC and hardship assessments ignore or inadequately address central arguments and evidence.
[30] The Applicant does not contest the Officer’s findings on establishment.
[31] That said, I decline to endorse the suggestion (which was made) that this Court should ignore or disregard the unfairness the Minister creates, in granting relief in cases like this, to the many thousands of foreign nationals who apply for immigration status, and lawfully stand in lines that may be very long waiting patiently for the Minister’s decisions.
[32] The Respondent submits the Officer reasonably considered all the evidence and the Applicant has not demonstrated a reviewable error.
A. Best interests of the child
[33] The Applicant submits the Officer was not alert, alive, or sensitive to the Applicant’s son’s situation and their analysis fails to live up the standard set out by the Supreme Court in Kanthasamy (at para 39).
[34] The Applicant points to Nagarajah v Canada (Citizenship and Immigration), 2023 FC 806 at paragraphs 2830 [Nagarajah], where the Court per Justice Southcott held:
[28] As explained above, the IAD found that it would be in the Applicant’s daughter’s best interests if he were to return to Sri Lanka to reunite with her there. As such, the BIOC factor militated against granting H&C relief. However, as the Applicant submits, the Decision fails to engage intelligibly with the Applicant’s argument that it would be in his daughter’s best interests if his request for H&C relief was granted, so that he could remain in Canada and she could join him here. While the IAD recognized the daughter’s expressed preference for them to live together as a family in Canada, the Decision contains no analysis of that possibility or explanation why the IAD rejected the Applicant’s position that this outcome would be in his daughter’s best interests.
[29] To be clear, the IAD was not required to agree with the Applicant’s position that his daughter’s best interests would be served by reuniting the family in Canada. Moreover, even if the IAD had agreed with this position, such that the BIOC factor favoured granting H&C relief, the IAD was not required to treat this factor as determinative. However, as explained at paragraph 128 of Vavilov, a decision-maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision-maker was actually alert and sensitive to the matter before it. In the present case, the Applicant and the Court are left unable to understand the reasoning underlying the IAD’s conclusion that BIOC favoured reunification in Sri Lanka rather than Canada.
[30] In my view, the Applicant’s position on the important BIOC factor was a sufficiently central argument in his H&C submissions that the IAD’s failure to engage intelligibly with that argument renders the Decision unreasonable (see Vavilov at para 100). As a result, this application for judicial review will be granted, the Decision set aside, and the matter returned to a differently constituted panel of the IAD for redetermination. It is therefore unnecessary for the Court to consider the other issues raised by the Applicant.
[Emphasis added]
[35] The Respondent submits Nagarajah is distinguishable because in that case the IAD ignored the child’s submissions, while in the case at bar the Officer considered and gave weight to the possibility of the Applicant’s son being sponsored to Canada and found the BIOC was compelling but not sufficient to warrant relief in the circumstances in this case. I agree that the case is distinguishable because the Minister’s Officer clearly identified the possibility of sponsorship in the case at bar, as emphasized above.
[36] Indeed, many cases were cited by both sides but given the many and increasing thousands of immigration cases decided annually, and that they are factually suffused with little precedential value, I consider it best to decide this case in line with the jurisprudence cited and not on the bases of what are most likely distinguishable one-off comparisons pointing this way or that.
[37] The Respondent submits the Officer considered the Applicant’s evidence and submissions concerning the BIOC and found this factor was not sufficient to warrant an exception under s 25(1) of IRPA. The Respondent emphasizes the BIOC factor is not determinative for H&C applications, With respect, this law is not in dispute and I agree with Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at paragraph 12, Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at paragraph 24; Habtenkiel v Canada (Citizenship and Immigration), 2014 FCA 180 at paragraph 46.
[38] On this point and with respect the Applicant invites the Court to reweigh and reassess the evidence which however, higher courts instruct it not to do. In my view the Officer was alert, alive and sensitive to the BIOC, and in my view the Applicant’s submission otherwise is untenable. Therefore, I find the Applicant must accept this aspect of the Decision of the Minister’s Officer.
B. Hardship
[39] The Applicant submits the Officer’s hardship analysis is unreasonable because it ignores and/or negates numerous factors. The Applicant submits there is no consideration of the potential hardship on the Applicant’s adult children, especially with regard to “their ability to finish their studies, their future earning potentials, or the emotional hardship of having to give up on their dreams prematurely.”
[40] The Applicant further submits the Officer erred by giving no weight to inflation and climate change because somethings that will impact the entire population of a country must still be given weight if it is a hardship that the Applicant or his family will face as a result of refusing the H&C: Sasi v Canada (Citizenship and Immigration), 2022 FC 1557 at paragraph 18; Cezair v Canada (Citizenship and Immigration), 2019 FC 1510 at paragraph 40; Emamian v Canada (Citizenship and Immigration), 2018 FC 533 at paragraphs 42-47.
[41] I am not persuaded. I agree with the Respondent the Officer reasonably considered the evidence and found the Applicant had not established personalized hardship: Paul v Canada (Citizenship and Immigration), 2017 FC 744 at paragraphs 23-25; Nashir v Canada (Public Safety and Emergency Preparedness), 2020 FC 147 [Nashir].
[42] In Nashir I held and repeat here:
[39] In response to the Applicant’s argument that the IAD applied the wrong standard when considering hardship, the Court has been consistent in articulating the principle that an applicant must show a link between the generalized risk in a country to a personalized risk that the applicant states they will experience. In this respect, the Respondent relies on Dorlean v Canada (Citizenship and Immigration), 2013 FC 1024, per Shore J at paras 35-36:
[35] The case law of this Court has repeatedly confirmed that H&C applications must present a particular risk that is personalized to the applicant (Lalane v Canada (Minister of Citizenship and Immigration), 2009 FC 6, 338 FTR 224; Ye v Canada (Minister of Citizenship and Immigration), 2012 FC 1072, at paragraph 10). The Court refers to the observations in Lalane, above:
[38] The allegation of risks made in an H&C application must relate to a particular risk that is personal to the applicant. The applicant has the burden of establishing a link between that evidence and his personal situation. Otherwise, every H&C application made by a national of a country with problems would have to be assessed positively, regardless of the individual's personal situation, and this is not the aim and objective of an H&C application. That conclusion would be an error in the exercise of the discretion provided for in section 25 of the IRPA which is delegated to, inter alia, the PRRA officer by the Minister…
[…]
[36] There must necessarily be a link between evidence supporting generalized risk and that of personalized risk. Thus, the onus is on the applicant to demonstrate a link between the risk and her personal situation. Even if generalized risk could be proven in this case, this is not enough to succeed in an H&C claim (see Paul v Canada (Minister of Citizenship and Immigration), 2009 FC 1300, [2010] 1 FCR 232; Ramotar v Canada (Minister of Citizenship and Immigration), 2009 FC 362; Chand v Canada (Minister of Citizenship and Immigration), 2009 FC 964).
[Emphasis added]
[43] In these respects the Applicants failed to persuade the Officer, whose decision cannot be set aside except by reweighing and reassessing the evidence. As noted, this I cannot do because there are no fundamental or exceptional circumstances in this case. The jurisprudence also establishes H&C applications are subjective and discretionary matters for officers to act in the name of the Minister – see e.g. Zlotosz v Canada (Citizenship and Immigration), 2017 FC 724 at paragraph 18, per Diner J which states:
[18] In the case at hand, the Officer effectively found that neither of the two key criteria mentioned in Kanthasamy at para 13 – namely (i) the basis for warranting of special relief, nor (ii) the objective evidence – to be sufficient. And as the SCC held above in Kanthasamy, the exercise of H&C discretion ultimately requires a subjective analysis. In other words, another officer might have concluded differently by weighing the evidence differently. Certainly, this reality is not exclusive to section 25 H&C determinations; it applies equally to the discretion exercised by the Immigration Appeal Division of the Immigration and Refugee Board (see, for instance, Canada (Citizenship and Immigration) v Gallardo, 2017 FC 714 and Ugwueze v Canada (Immigration, Refugees and Citizenship), 2017 FC 713.
[Emphasis added]
[44] On balance, in addition to finding no merit to the Applicant’s submissions, the Decision below is intelligible, transparent and justified on the record including restraining law per Vavilov.
VIII. Conclusion
[45] Therefore, this application for judicial review will be dismissed.
IX. Certified question
[46] Neither party proposes a question for certification, and I agree none arises.
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