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Humanitarian and Compassionate Applications (s.25 IRPA) – Understanding the Legal Test – Post Kanthasamy

This month, the Honourable Justice McHaffie granted the judicial review of DAMIAN v. MCI IMM-5202-18, 2019 FC 1158. Wennie Lee who litigated the matter before the Learned Justice, noted several passages of the decision which are important in the determination of Humanitarian and Compassionate (H&C) applications pursuant to s. 25 of the IPRA.

The Learned Justice started the analyses with the following;

[1]  A child who is brought to Canada by a parent cannot be faulted for remaining in Canada without legal status as a child. If that child, grown to adulthood, applies for permanent residence, it is unreasonable for an immigration officer to hold it against them that the time they spent in Canada during their childhood resulted from a disregard of immigration law.

[2]  The immigration officer reviewing Maria Damian’s application for permanent residence on humanitarian and compassionate [H&C] grounds did just that. While recognizing Ms. Damian’s establishment in Canada, the officer noted that her establishment was “based on a wilful disregard of Canadian immigration law” and that she assumed those establishment efforts being “fully cognizant that her immigration status was uncertain.” In reaching this conclusion, the officer did not take into account that Ms. Damian was a minor for seven and a half of the almost ten years she was in Canada.

Further, the Court concluded that the:

[3]  …. The refusal was also unreasonable as it discounted Ms. Damian’s concerns regarding the dangers of returning to Colombia because her exposure to violence would be “no greater than others in Colombia.” This Court has been clear that the H&C analysis does not require an applicant to demonstrate a greater risk than the general population. The decision is therefore quashed and Ms. Damian’s application is returned for redetermination by another officer

Moreover, the Court in its analysis examines the important question of the test that is to be applied when determining H and C applications. While the court notes that the findings are not determinative of the matter at bar, they are educative.  The Honourable Court made the following observation:

[19]  First, relief under subsection 25(1) can be described semantically as “exceptional”, in that it provides an exception to the requirements of the IRPA, and as “extraordinary”, in that granting such relief is not in the ordinary course. Indeed, counsel for the applicant conceded as much. To this extent, the use of “exceptional” can simply indicate that, to use the language of Justice Moldaver in dissent in Kanthasamy, section 25(1) “was meant to operate as an exception, not the rule”: Kanthasamy at para 94. The majority in Kanthasamy agreed that this was the case, adopting language from Chirwa that confirms that the section is not “to be applied so widely as to destroy the essentially exclusionary nature” of the IRPAKanthasamy at para 14.

[20]  The question is therefore whether the use of “exceptional and extraordinary” language goes beyond being merely descriptive to create a heightened standard or test for assessing an H&C application. On this issue, the dissent in Kanthasamy argued that the “exceptional” nature of the relief justified a more stringent standard: “As the Minister is empowered to grant an exceptional remedy, the test should also convey the level of intensity that those factors must reach — that is, the stringent threshold for relief.” [Emphasis added]: Kanthasamy at para 100. This stringent threshold took the form of the “simply unacceptable” standard proposed by the dissent: Kanthasamy at paras 63, 101-104. The majority did not adopt this approach, as the dissent recognized: Kanthasamy at paras 106-107.

[21]  Thus, to the extent that words such as “exceptional” or “extraordinary” are used simply descriptively, their use appears to be in keeping with the majority in Kanthasamy, although such use may not add much to the analysis. However, to the extent that they are intended to import a legal standard into the H&C analysis that is different than the Chirwa/Kanthasamy standard of “exciting in a reasonable person in a civilized community a desire to relieve the misfortunes of another, provided those misfortunes justify the granting of relief,” this would appear to be contrary to the reasons of the majority. Given the potential for words such as “exceptional” and “extraordinary” to be taken beyond the merely descriptive to invoke a more stringent legal standard, it may be more helpful to simply focus on the Kanthasamy approach, rather than adding further descriptors. [emphasis added]

Indeed, departing from the Kanthasamy standard would not be in keeping with majority decision of the Supreme Court of Canada.

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