Date: 20241113

Docket: IMM-11475-23

Citation: 2024 FC 1799

Vancouver, British Columbia, November 13, 2024

PRESENT: Mr. Justice Diner

JUDGMENT AND REASONS

[1] The Applicants seek judicial review of a decision made by an immigration officer [Officer] refusing their permanent residence [PR] application on humanitarian and compassionate grounds [Decision] under subsection 25(1) of the Immigration Refugee Protection Act, SC 2001, c 27 [IRPA]. For the reasons that follow, I will grant this judicial review.

I. Background

[2] The Applicants are a married couple along with their three children, who were 17, 15 and 11 years old at the time of their application for PR on humanitarian and compassionate [H&C] grounds. They are citizens of Nigeria.

[3] The Applicants first arrived in Canada in May of 2019 and made a claim for refugee protection shortly thereafter, which was rejected by the Refugee Protection Division, as was their appeal before the Refugee Appeal Division [RAD] in December 2020. This Court upheld the RAD decision in May of 2021 by dismissing the Applicants’ application for leave.

[4] The Applicants then filed their application for PR based on H&C grounds, which was held in abeyance pending a decision on their further application for PR under the Temporary Resident to Permanent Resident Pathway program, a temporary public policy which was a limited time pathway to PR for individuals who had worked in essential occupations and health services fields during the pandemic. However, their application failed to meet the minimum requirements related to work experience and it was refused in December 2021.

[5] The Applicants made their application for PR on H&C considerations based on the following factors: (i) the best interests of a child [BIOC], (ii) the adverse country conditions, and (iii) the hardship they would face should they be sent back to Nigeria, including health considerations.

[6] The Officer, in an unusually lengthy decision (of over 20 pages of single-spaced reasons), in response to an unusually voluminous submission package, considered the factors presented by the Applicants and gave some minimal weight to their establishment in Canada and to the BIOC. The Officer gave no weight to the adult Applicants’ employment during the COVID-19 pandemic because he noted that H&C relief is not a “reward for one’s contribution.” The Officer found insufficient evidence that the Applicants would face risk, adverse country conditions and hardship were they to return to Nigeria. The Officer concluded that the Applicants personal circumstances did not warrant the relief sought.

II. Analysis

[7] The Applicants contend that the Officer erred in assessing: (i) the BIOC, (ii) establishment and (iii) hardship. They submit that the Officer failed to grapple with the extensive evidence of their establishment. The Respondent countered that the Decision was reasonable, having weighed these various factors appropriately, and given due consideration to the evidence in the record.

[8] The Applicants have persuaded me that despite the detailed Decision, the Officer erred in assessing the BIOC, as well as establishment and hardship.

[9] Firstly, although I acknowledge the Respondent’s submission that a BIOC analysis will not in every case be determinative of an H&C application (Gordon v Canada (Citizenship and Immigration), 2023 FC 927 at para 9), an application for PR under H&C grounds must be considered from a humanitarian and compassionate lens, and particularly the BIOC (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paragraphs 37-40 [Kanthasamy]; Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 [Baker]).

[10] Certainly, one does not have to go back a decade to see these principles enunciated and followed. In recent months, it was observed that in both Baker and Kanthasamy, the Supreme Court of Canada determined that “the humanitarian and compassionate component must be central in the officer’s assessment: given its central importance, the failure of an officer to have properly considered the BIOC goes beyond a minor misstep or peripheral issue that can be overlooked in favour of the other factors considered” (Francis v Canada (Citizenship and Immigration), 2024 FC 1287 at para 7 [Francis]; see also Henry-Okoisama v Canada (Citizenship and Immigration), 2024 FC 1160 at para 26).

[11] In the case under review, the Officer predominantly focused the BIOC analysis on country conditions in Nigeria and the fact that the children would be leaving Canada to return with their parents. In doing so, the Officer failed to examine or engage with the individual circumstances of the children, to properly assess what is in their best interests, or to conduct a personalized evaluation assessing the key factors (similarly, see Francis at para 12).

[12] In addition, the Officer also went astray by focusing the BIOC analysis on hardship, without considering the evidence submitted regarding the reasons why counsel had asserted that the BIOC favoured the Applicants remaining in Canada.

[13] As a result, the Officer was not alert, alive and sensitive to the evidence (Marshall v Canada (Citizenship and Immigration), 2017 FC 72 at para 33). As this Court has consistently held, while an officer can certainly consider hardship as part of the BIOC analysis, hardship alone must not replace a BIOC analysis (Li v Canada (Citizenship and Immigration), 2020 FC 848 at para 33).

[14] One manifestation of this problematic analysis in this Decision arose with respect to the Officer’s seizing on the IFAs identified by the RAD, and adopting those findings for the purposes of the BIOC analysis.

[15] First, I note that an H&C is completely distinct from a refugee analysis. Indeed, section 25 clearly delineates the H&C purpose from that of a refugee claim. Its provisions create restrictions on having both applications simultaneously, and even sets a 1 year bar from the date of the final outcome of a refugee claim, such that the Minister may not examine a request if it is made within 12 months of an applicant’s claim for refugee protection being rejected (see subsection 25(1.2)). However, it is also interesting – and relevant – to note that Parliament created an exemption from this one year bar when the removal of an applicant would have an adverse effect on the BIOC (see paragraph 25(1.21)(b)).

[16] The difficulty arising from the Officer’s approach of conflating the RAD IFA findings with the BIOC analysis in this case is twofold. First, as alluded to above, the Officer failed to give effect to the purpose of section 25 of the IRPA, which is to allow for the mitigation of “the rigidity of the law in an appropriate case” (Sivalingam v Canada (Citizenship and Immigration), 2017 FC 1185 at para 9 citing Kanthasamy at para 19).

[17] Again, viewing the BIOC through an IFA lens arising out of the refugee claim outcome does not provide responsive justification for the voluminous submissions made with respect to the children’s interests, based on the affidavits, letters and other documentation, referenced in counsel’s detailed submissions which accompanied the H&C application.

[18] Second, most of the Officer’s analysis is devoted to the situation of families generally in the Nigerian IFAs identified and the risks their children face in those cities, instead of looking at the particular circumstances of the minor Applicants in this case in light of the evidence that they presented with their application. Had a meaningful assessment in this regard been done, I would have been able to make a finding about whether the Officer’s reasons were justified. Rather, we are left with high-level statements comparing life for children in Nigeria and the fact that the situation in Canada will almost invariably be better in removal situations.

[19] In short, although comments about country conditions could be a valid part of a BIOC analysis, the sole focus on it obscures the consideration that the minor Applicants, having been in Canada for four years at that time, had spent a considerable amount of their lives here, and had put in considerable evidence going to their interests. The Decision lacks transparency in this area.

[20] Third, I have already noted that the BIOC analysis lacks justification and transparency, and would add that there is an element to the reasoning that lacks intelligibility as well, based on two observations. To begin with, there is an internal inconsistency: the Officer notes that the BIOC will be best served by the children returning to Nigeria with their parents, as they have no family in Canada. However, the Officer also notes that the Applicants have no family in the IFAs. To then conclude that this is in the best interests of the children lacks intelligibility.

[21] To compound the problem of intelligibility, the Officer attributed positive weight to the BIOC and the establishment of the Applicants. There is no indication of neutral or negative weight relating to any of the H&C factors in the Decision. As the Officer found that the constituent H&C factors including establishment, hardship and the BIOC all had positive weight vis-à-vis the application, with no factors being given negative or neutral weight, the ultimate finding that the Applicants did not establish a case for H&C relief lacked intelligibility, or at minimum, transparency.

[22] In light of the above, I am allowing this application for judicial review and remitting the matter for redetermination by a different officer.

JUDGMENT in IMM-11475-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is granted. The matter is remitted for determination by a different officer.

2. There is no question for certification.

3. No costs will issue.

“Alan S. Diner”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: