Date: 20250304
Docket: IMM-9766-23
Citation: 2025 FC 404
Vancouver, British Columbia, March 4, 2025
PRESENT: Justice Andrew D. Little
BETWEEN: |
PURANDEEP SINGH PRABJOT KAUR |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision dated July 17, 2023. An officer refused the applicants’ request for permanent residence in Canada with an exemption for humanitarian and compassionate (“H&C”
) grounds under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”
).
[2] The applicant submitted that the decision should be set aside as unreasonable under the principles set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[3] The issues raised on the H&C application included the best interests of the applicants’ four-year-old son, who is on the autism spectrum, and the applicants’ establishment in Canada. The officer concluded, based on the evidence filed by the applicants, that their circumstances did not warrant H&C relief under IRPA subsection 25(1).
[4] For the following reasons, I conclude that the H&C decision was reasonable. The officer’s decision did not err in law and respected the factual constraints in the evidence filed by the applicants to support their request for H&C relief.
New Evidence on this Application
[5] The applicants filed two affidavits in this judicial review proceeding, which contained new information including reports related to their son that were not before the officer when the H&C decision was made. In my view, the new evidence is not admissible on this application. It falls under the general rule that the evidentiary record before a reviewing court is restricted to the evidentiary record that was before the administrative decision maker when the impugned decision was made: see e.g., Terra Reproductions Inc. v. Canada (Attorney General), 2023 FCA 214, at para 5; Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, at para 19. I am not persuaded that any of the exceptions to the general rule apply to the new evidence in this case.
The H&C Decision was Reasonable
[6] The standard of review of the officer’s substantive H&C decision on a judicial review application is reasonableness, as described in Vavilov. See Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at paras 42-44. Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Vavilov, at paras 12-13 and 15; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras 8, 63. The starting point is the reasons provided by the decision maker, which are read holistically and contextually, and in conjunction with the record that was before the decision maker. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194.
[7] Vavilov instructs that the Court has a supervisory role to ensure that the decision was reasonable. The Court ensures that the decision followed the applicable law and respected the facts in the materials filed by the applicants. If the decision maker’s decision did so and was reasonable in that it displays transparency, intelligibility and justification, the Court will not interfere with the decision. On the other hand, if the Court concludes that the decision did not do so and therefore contained a reviewable error, then the Court may set aside the decision.
[8] Vavilov also directs the Court not to do its own analysis of the circumstances and come to its own conclusion on the merits of the request for H&C relief. In its analysis, the Court will not reweigh or reassess the information that was before the decision maker.
[9] The applicants raised several issues to challenge the H&C decision. The principal issue was whether the officer reasonably assessed the best interests of the child (“BIOC”
) as required under IRPA subsection 25(1).
[10] In assessing applications on H&C grounds, an officer must always be alert, alive and sensitive to the best interests of the children. Those interests must be well identified and defined, and examined with a great deal of attention in light of all the evidence: Kanthasamy, at paras 35, 38-40. A decision under IRPA subsection 25(1) will be unreasonable if the interests of children affected by the decision are not sufficiently considered: Kanthasamy, at para 39. While the children’s interests must be given substantial weight and be a significant factor in the H&C analysis, they are not necessarily determinative of an application under IRPA subsection 25(1): Kanthasamy, at para 41.
[11] In this case, I find that the officer’s decision was alert, alive and sensitive to the best interests of the applicants’ son and reasonably assessed the BIOC evidence that was in the record at the time of the decision.
[12] The officer considered the impact of a positive H&C decision and a negative decision on the son’s interests. The reasons showed that the officer was aware of the son’s diagnosis of Autism Spectrum Disorder. The officer considered the contents of Dr Singh’s report and Dr Goyal’s report. The officer found that the applicants’ family suffers from a language barrier in Canada, which may add difficulty to their son’s treatment, that would no longer exist in India. The officer recognized that Dr Goyal’s report stated that a return to India would have adverse effects on the son and there would be a period of adjustment to new doctors and therapists. Recognizing that Dr Goyal recommended the status quo (that the son remain in Canada), the officer found little evidence in the H&C application that the son would not be able to obtain the support he needs if he were to leave Canada and return to India.
[13] The applicant’s submissions, including the detailed submissions at the hearing in Court, have not demonstrated that the officer’s decision contained a reviewable error on the BIOC. The applicants did not identify any alleged error of law in the officer’s assessment. The officer reasonably considered the two reports from Dr Singh and Dr Goyal filed with the H&C application and did not ignore any material contents in them. As a result, I find this case is different from Abreu v. Canada (Citizenship and Immigration), 2023 FC 553, at paras 34-37, cited by the applicants, in which the evidence spoke directly to the child’s circumstances and potential impact of relocation but was not addressed in the officer’s BIOC analysis.
[14] The officer considered the impact of a return to India on the son, including that there would be a period of adjustment to new doctors and/or therapists. There was limited evidence before the officer concerning the treatment of the son or persons on the autism spectrum generally in India, including on the availability and cost of treatment. The officer’s assessment was not unreasonable based on the materials in the H&C application: see Alrebeh v. Canada (Citizenship and Immigration), 2022 FC 1389, at para 36; Alves v. Canada (Citizenship and Immigration), 2022 FC 672, at para 20; Shah v. Canada (Citizenship and Immigration), 2022 FC 424, at para 28; Shah v. Canada (Citizenship and Immigration), 2018 FC 537, at paras 73-74.
[15] I am not persuaded that the officer’s decision ignored any material information or fundamentally misunderstood or misconstrued the information in the applicants’ H&C application as it stood when the decision was made: Vavilov, at paras 126.
[16] The applicants raised a number of other issues at the hearing, including that the officer was incorrect about certain aspects of the applicants’ status in Canada; the financial hardship they would experience if they return to India, particularly with a child on the autism spectrum; the contents of support letters; and whether the officer properly considered an aspect of their evidence on establishment in Canada. None of these submissions demonstrated a reviewable error to justify the Court’s intervention.
Conclusion
[17] I recognize and appreciate the applicants’ concerns that their son may not have the same care and treatment in their home village in India as he might if he stayed in Canada, and that he may well face challenges and difficulties in India. However, on this judicial review application, the Court can only intervene if the H&C decision was unreasonable. Applying the principles in Vavilov, I am unable to reach the conclusion that it was.
[18] For these reasons, the application for judicial review is dismissed. Neither party proposed a question to certify for appeal and none arises.
JUDGMENT in IMM-9766-23
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed.
No question is certified under paragraph 74(d) of the Immigration and Refugee Protection Act.
"Andrew D. Little"
Email this Content