Docket: IMM-905-25
Citation: 2025 FC 1956
Toronto, Ontario, December 11, 2025
PRESENT: The Honourable Justice Battista
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BETWEEN: |
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SALMA AIJAZ MOHAMMADI |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] This is an application to review the decision of a Senior Immigration Officer (“Officer”
) refusing the Applicant’s permanent residence application based on humanitarian and compassionate (“H&C”
) grounds pursuant to section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27.
[2] The decision is unreasonable because of the Officer’s misapplication of the legal test for H&C relief, mistreatment of the psychological report filed in support of the application, and the Officer’s failure to justify the conclusion that the Applicant could obtain permanent residence through “the normal process.”
For these reasons, the application for judicial review is granted.
II. Background
[3] The Applicant is a 70-year-old Pakistani citizen, and the holder of a Super Visa issued in 2017. She has resided in Canada on visitor status intermittently since 2013 and has lived here continuously since her last entry in May 2023. She is financially and emotionally supported by her only two children, who are Canadian citizens, and she resides primarily with her son in Kingston, Ontario. The Applicant’s husband died suddenly in Kingston in July 2022 while he was on visitor status.
[4] A number of grounds were advanced by the Applicant for H&C relief. Those grounds included her family and community relationships in Canada, her establishment in Canada, and her serious mental health conditions. The Applicant submitted a psychological report which assessed her in the severe range of anxiety and depression, as well as a supplemental report, issued several months after the initial report, which noted an improvement in her mental health based primarily on the “excellent”
care and living conditions provided by the Applicant’s Canadian son.
[5] The Officer refused the application by giving the Applicant’s establishment little weight, and finding that “[w]hile aging, health concerns, and societal challenges may present difficulties, these circumstances do not support the need for an exemption based on humanitarian and compassionate considerations.”
The Officer noted at several points in the decision that the Applicant could reside in Canada by using the “normal”
or “standard”
immigration process, such as family class sponsorship or Super Visas.
[
6
]
The Officer accepted the initial psychological report’s findings but dismissed the report’s recommendation that the Applicant remain in Canada by noting that there was no evidence of her treatment in Canada and by pointing to the absence of evidence indicating that support was not available for her in Pakistan.
III. Issue
[7] The sole issue is whether the decision is reasonable pursuant to the description of that standard set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], and affirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21. While a reviewing court must refrain from reweighing evidence, a reasonable decision must be respectful of the evidentiary record and its conclusions must be justified (Vavilov, at para 126).
IV. Analysis
[8] First, following helpful submissions from both parties on the issue, I am convinced that the Officer erred by applying a test of exceptionality to the Applicant’s evidence.
[9] Second, the Officer’s decision misapprehended the Applicant’s psychological report and dismissed the report’s recommendation that the Applicant remain in Canada by referring to information that was not in the report.
[10] Finally, the Officer’s reliance on the Applicant’s ability to pursue other avenues to remain in Canada, made at several points in the decision, was not justified.
A. The misapplication of the exceptionality test
[11] The Applicant argued that the Officer misapplied the test for H&C relief as demonstrated by the reasons’ repeated characterizations of the Applicant’s evidence as not exceptional (Henry-Okoisama v Canada (Citizenship and Immigration), 2024 FC 1160 at paras 37, 41; Buchberg v Canada (Citizenship and Immigration), 2024 FC 1581 at para 7; Ganeshalingam v Canada (Citizenship and Immigration), 2024 FC 1437 at para 54).
[12] The Respondent states that these references were merely descriptive and were not used as a legal threshold (Al-Abayechi v Canada (Citizenship and Immigration), 2021 FC 1280 at paras 14-15; Davis v Canada (Citizenship and Immigration), 2022 FC 238 at paras 34-38, 42-47; Toor v Canada (Citizenship and Immigration), 2022 FC 773 at para 20). Discussion then ensued about how to determine whether the term “exceptional”
is used descriptively as opposed to being used as a legal test.
[13] Counsel for the Applicant stated that the use of “exceptional”
as a legal test could be demonstrated by noting the treatment of sympathetic evidence brought forward by the Applicant. Each time the Officer noted sympathetic evidence, he argued, the Officer subsequently dealt with the evidence by stating that it was not exceptional, rather than pointing to other evidence which reduced the sympathetic nature of the evidence.
[14] I am convinced that this method demonstrates the use of “exceptional”
as a legal test, rather than the use of the term descriptively. It suggests that the Applicant’s personal circumstances were measured against a rigid external test and found to be deficient. I am therefore convinced that the Officer erred by unreasonably applying this higher threshold.
B. The Officer misapprehended the psychological report
[15] As stated above, the Applicant submitted a psychological report which assessed her in the severe range of anxiety, within the severe range of depression, and described her symptoms of lost motivation to thrive, hopelessness and helplessness. The report also described the fact that after her husband’s death in Canada, the Applicant returned to Pakistan with the desire of remaining independent, but she returned to Canada after experiencing “severe psychological and emotional difficulties.”
[16] The report concluded by recommending that the Applicant should remain in Canada which would “easily improve”
her psychological state through support from her children. A supplemental report, written seven months after her H&C application was filed, described an improvement in her mental state which was attributed mainly to the level of care she was receiving in Canada.
[17] When officers are presented with a report from a health professional, their reasons for limiting the report’s evidentiary value must first accurately reflect the health condition described in the report (Akhtar v Canada (Citizenship and Immigration), 2022 FC 856 at paras 21-23; Njeru v Canada (Citizenship and Immigration), 2009 FC 1281 at para 34). Otherwise, a concern arises that the evidence in the report has been misapprehended. This concern arises in the present case.
[18] The psychological report submitted by the Applicant described severe psychological conditions in two areas: anxiety and depression. The Officer characterized the conditions as “emotional difficulties”
and appeared to fault the report for not describing available support in Pakistan or the Applicant’s ongoing support in Canada. The Officer minimized the evidence of the Applicant’s mental health conditions and their debilitating impact on her life. This constitutes an unreasonable misapprehension of the report (Vavilov, at para 126).
[19] Moreover, the Officer unreasonably limited the report’s value by referring to what it did not say, rather than what it did say. I agree with the Applicant that this is the same unreasonable treatment of evidence described by the Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paragraph 47:
Having accepted the psychological diagnosis, it is unclear why the Officer would nonetheless have required Jeyakannan Kanthasamy to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka. Once she accepted that he had post-traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor.
C. The Officer’s finding regarding the availability of other avenues was not justified
[20] At multiple points in the decision, the Officer expressed confidence that the Applicant can seek residence in Canada through “normal”
or “standard”
immigration processes. The Officer specifically mentioned family class sponsorship and the Super Visa, describing them as “existing immigration pathways”
which “remain available”
to address her situation.
[21] In advancing alternative pathways as a basis for refusing the application, the Officer relied on an assumption of feasibility contradicted by publicly known policies developed by their own department.
[22] The Applicant raises a number of decisions from this Court which find it unreasonable for officers to rely on the availability of other immigration pathways, particularly in the realm of parental sponsorships, when there is evidence that those pathways are not realistic (Hebberd v Canada (Citizenship and Immigration), 2022 FC 27 at para 10; Buchberg v Canada (Citizenship and Immigration), 2024 FC 1581 at para 9; Tramosljanin v Canada (Citizenship and Immigration), 2022 FC 1378 at para 18). The Respondent argued, and the Applicant acknowledged, that the decisions dealt with situations in which submissions were made by applicants that the programs were not viable. No submissions were made by the Applicant’s previous counsel on this issue.
[23] However, the Respondent’s position elevates the threshold for relief under judicial review. An obligation exists for a decision maker to justify a decision based on the relevant factual and legal constraints (Vavilov, at para 99). Unreasonableness is unreasonableness regardless of whether it is anticipated and addressed by an applicant prior to the issuance of a decision.
[24] In the present case, the decision maker advanced a ground for refusing the application, without notice to the Applicant, that had a very remote basis in the Respondent’s own policies. Given the emphasis placed on the alternative pathways demonstrated by the Officer’s multiple references to these options, there was an obligation on the Officer to explain why they would be a realistic and viable option (Rocha v Canada (Citizenship and Immigration), 2022 FC 84 at para 35). Unfounded assumptions are unreasonable (Vavilov, at para 104) and delegated officers must be presumed to know the operational realities of their Ministers’ programs.
[25] The Respondent has the demonstrated authority and intention to limit the inventory in immigration streams through the use of program pauses, application caps, cancellations, and lotteries. However, when such measures are imposed, it is unreasonable for the Respondent’s delegates to advance a hypothetical access to those programs as a reasonable alternative to H&C relief.
[26] Regarding the Super Visa pathway which was also advanced as an option in the decision, the Officer failed to mention the fact that the Applicant had been refused temporary residence in the past. In any case, the responsiveness of this option to the Applicant’s situation is low given that her request was for permanent rather than temporary status, which was also the recommendation in her psychological report.
V. Conclusion
[27] The Officer’s application of an “exceptionality”
test, unreasonable treatment of the Applicant’s psychological report and unjustified speculation about alternative immigration pathways for the Applicant render the decision unreasonable.
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