Docket: IMM-4798-25
Citation: 2026 FC 1089
Toronto, Ontario, August 24, 2026
PRESENT: Madam Justice Go
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BETWEEN:
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MAHINDER KAUR
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS AND JUDGMENT
I. Overview
[1] Mahinder Kaur [Applicant], now aged 74, is a citizen of India. The Applicant is a widow. She came to Canada in January 2022 to visit her son and his family.
[2] In December 2023, the Applicant applied for permanent residence on humanitarian and compassionate grounds [H&C application] under subsection 25(1) of the Immigration and Refugee Protection Act (SC 2001, c.27) [IRPA]. By a decision dated December 21, 2024, a Senior Immigration Officer [Officer] of the Immigration, Refugees and Citizenship Canada [IRCC] denied the Applicant’s H&C application [Decision].
[3] The Applicant seeks a judicial review of the Decision.
[4] The parties jointly request that this application for judicial review be determined in writing, pursuant to paragraph 68 of the Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings (August 12, 2026).
[5] For the reasons set out below, I grant the application.
II. Preliminary Issues
[6] The Respondent raises two preliminary issues. First, the Respondent submits that the Applicant raises new issues on judicial review that were not raised in her leave application: a) the Applicant’s argument that the Officer applied the wrong legal test to the medical evidence relating to her physical condition, and b) the Officer breached procedural fairness by relying on unnamed country condition evidence. The Respondent asks the Court not to exercise its discretion to consider these new issues.
[7] Second, The Respondent notes that the Applicant has filed a Further Memorandum of Facts and Law [Further Memorandum] which supplements the Applicant’s Memorandum of Facts and Law by advancing additional legal arguments and authorities. This is in direct contravention of this Court’s Leave Granted Order [Order Granting Leave] which explicitly states that any further memorandum shall replace the Applicant’s memorandum of argument filed pursuant to Rule 10 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules [Rules]. The Respondent submits that the Applicant’s failure to abide by the terms of the Order is improper.
[8] For her part, the Applicant argues that the Order Granting Leave does not restrict the content of the replacement memorandum to arguments already identified at leave and does not require the Applicant to seek leave to advance any particular argument within it. The Applicant contends that both arguments fall within the grounds for judicial review expressly pleaded in the Application for Leave and Judicial Review [ALJR] which include, among others, “an error of law”
in the Decision, and a violation of the Applicant’s “right to procedural fairness and principles of natural justice”.
[9] Finally, the Applicant submits the complete Reasons for the Decision were not available to her at the time of the leave application. As stated in paragraph 2 of the Applicants’ Further Memorandum, the final page of the Reasons—Section 4 (page 6) and Section 5—was missing from the record received by the Applicant. Section 5 is headed “Sources Consulted”
and is entirely blank. The Respondent’s assertion that the responsibility for the omission lies with the Applicant is not supported by any evidence and is factually contested. The Applicant submits the Respondent cannot benefit from an incomplete record disclosure by precluding the Applicant from arguing the very errors that the missing pages reveal. Further, the procedural fairness breach does not arise from Section 5 being blank in isolation. Rather, the breach arises from the combination of two elements that must be read together: first, the positive factual finding in the body of the Reasons that India has social systems and seniors support homes in place; and second, Section 5 being entirely blank, revealing that the sources underlying that finding were never disclosed. Such a breach surfaces only when the positive country condition finding in the assessment is read against the blank Sources Consulted section.
[10] Some of the Applicant’s arguments simply have no merits. Contrary to the Applicant’s assertion, there is no right to raise a new issue in a further memorandum of argument; rather, the jurisprudence confirms that it is within the Court’s discretion to decide if a party could raise a new issue: Al Mansuri v Canada (Public Safety and Emergency Preparedness), 2007 FC 22 [Al Mansuri], at para 9.
[11] Further, I note that the Applicant’s own statement gives rise to the Respondent’s preliminary objections. The Applicant states at paragraph 2 of the Further Memorandum that the document “supplements”
the Applicant’s Memorandum of Facts and Law, which runs contrary to Rule 10 of the Rules. The Applicant also uses headings like “additional arguments”
in the Further Memorandum, thus suggesting that these arguments are in addition to, and not replacement of, those contained in the Applicant’s initial memorandum. More to the point, the Applicant in fact raises new issues, and not just additional arguments for the issues previously raised.
[12] The question before me is whether I should exercise my discretion to permit the Appilcant to raise new issues.
[13] In Naeini v. Canada (Minister of Citizenship and Immigration), 2024 FC 899 at para 12, citing Al Mansuri, the Court reiterates that there are a list of non-exhaustive factors the Court applies to determine if it should exercise its discretion to allow issues to be raised for the first time in a party’s further memorandum of argument:
(i) Were all of the facts and matters relevant to the new issue or issues known (or available with reasonable diligence) at the time the application for leave was filed and/or perfected?
(ii) Is there any suggestion of prejudice to the opposing party if the new issues are considered?
(iii) Does the record disclose all of the facts relevant to the new issues?
(iv) Are the new issues related to those in respect of which leave was granted?
(v) What is the apparent strength of the new issue or issues?
(vi) Will allowing new issues to be raised unduly delay the hearing of the application?
[14] On the first factor, the evidence before the Court is mixed. While the Applicant challenges the Respondent’s assertion that the responsibility for the omission lies solely with the Applicant, I note that the Applicant files no affidavit evidence confirming that the Reasons for Decision she received was incomplete. Rather, the Applicant relies on counsel’s assertion in the Further Memorandum at paragraph 2, stating that the findings contained in the final page of the Reasons were not available at the time of the initial memorandum.
[15] The March 5, 2026, Order Granting Leave gives the Applicant an opportunity to file further affidavits by March 16, 2026, before the filing of the Further Memorandum. By then, the Applicant had confirmed receipt of the Certified Tribunal Record and would have known that there is a page missing in the original Reasons for the Decision she received. Instead of submitting a further affidavit highlighting this omission, the Applicant waited until the filing of the Further Memorandum to make the assertion for the first time, which in my view, is not proper.
[16] Having said that, I note that the Reasons for the Decision included in the Applicant’s Record was indeed missing the last page. This appears to bolster the Applicant’s position that she did not receive the complete Reasons for the Decision at the time she filed the ALJR and perfected the leave. In addition, because the second last page for the Reasons for the Decision ends with a complete paragraph and could have been construed as a final paragraph of the Reasons for the Decision, I am not persuaded by the Respondent’s submission that the omission was due to the Applicant’s failure to exercise reasonable diligence—especially given the Reasons for the Decision was issued by the IRCC.
[17] There are three other factors that weigh in favour of allowing the Applicant to raise new issues. First, as the Respondent received the Applicant’s Further Memorandum before filing their own further memorandum, and the Respondent has responded to the new issues raised, I find that there is no prejudice to the Respondent should I allow the Applicant to raise these new issues. Second, allowing the new issues to be raised does not delay the hearing, as the parties agree to have the application determined in writing. Third, the Applicant did include the issues of error of law and procedural fairness violation as possible grounds in her ALJR.
[18] However, based on the record before me—and even accepting that the Applicant did not receive the last page of the Reasons for the Decision—I find that the record received by the Applicant at the time she perfected leave already disclosed all the facts relating to the medical evidence issue.
[19] As the Applicant submits in the Further Memorandum, the Officer erred in law by dismissing the Applicant’s documented medical conditions on the following basis: “The applicant does not put forth documentary evidence to support that she suffers from medical ailments that hinder her ability to depart Canada. This factor is not afforded weight.”
The Officer’s finding in this regard is found at page 5 of the Reasons for the Decision, and not in the last page. Thus, there is no reason why the Applicant could not have raised this argument in her initial memorandum.
[20] With respect to the alleged breach of procedural fairness, the last page of the Reasons for the Decision contains the Officer’s analysis of the country conditions in India as the basis for refusing the Applicant’s H&C application. The last page consists of three fulsome paragraphs explaining the Officer’s analysis as it pertains to subsection 25(1) of the IRPA. It also indicates—as the Applicant points out—that the Officer left the sources they relied on in their assessment blank. As I have found that the Applicant did not receive the last page at the time she perfected her leave, I find the record that the Applicant received at the time of leave perfection did not disclose all the facts relevant to the issue of procedural fairness. While this new issue was not related to those in respect of which leave was granted, the new issue is of enough strength that warrants the Court’s positive discretion.
[21] I therefore allow the Applicant to raise the new issue of procedural fairness, but not the issue of the error of law with respect to the Officer’s assessment of the medical evidence.
[22] Apart from these two issues, the Applicant also raises another new issue that the Respondent does not mention, namely, that the Officer relied on a mischaracterization of the purpose of subsection 25(1). The Applicant does not explicitly make this argument in her initial memorandum of argument, although she makes some general arguments about the purpose of an H&C application and the Officer’s decision not being in compliance with H&C assessments.
[23] However, I note that the Applicant’s submission on this new issue is based on the Officer’s findings in the last page of the Reasons for the Decision. I also note that the Respondent’s further memorandum addresses this new argument and refers to the new case law cited by the Applicant. As such, for the same reasons as I have stated above, I am allowing the Applicant to raise this new issue.
[24] Finally, to be clear, because the Applicant’s Further Memorandum is meant to replace her initial memorandum, I will not consider the Applicant’s submissions in her initial memorandum in my deliberation.
[25] In the Further Memorandum, the Applicant raises several issues to challenge the reasonableness of the Decision. I agree with the Respondent’s submissions that for some of these issues, the Applicant overstates her case. For others, the Decision properly reflects that the Applicant failed to put the evidence before the Officer.
[26] However, I find that the Officer did commit three reviewable errors, namely: a) the Officer mischaracterized the purpose of subsection 25(1) of the IRPA; b) the Officer erred in finding that the Applicant has been an independent and self-sufficient person during her time in Canada; and c) the Officer relied on the undisclosed country conditions documents to find the Applicant has support in India if needed.
[27] All three issues, in my view, impact the reasonableness of the Decision as required by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
A. The Officer mischaracterized the purpose of subsection 25(1) of the IRPA
[28] In support of her H&C application, the Applicant submitted evidence with respect to her personal circumstances, including the difficulties she faced in India after her husband passed away, her life in Canada with her only son and his children, the challenges the Applicant may face if she returns to India, her establishment in Canada, and evidence about her mental health issues.
[29] The Officer stated in the last page of the Decision: “The purpose of invoking subsection 25(1) of the IRPA is not to compensate for the difference in a standard of living, but rather to allow for an exceptional response to a particular set of circumstances which are unforeseen by the IRPA and where humanitarian and compassionate grounds justify the granting of relief.”
[30] But as the Supreme Court of Canada made clear in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy], subsection 25(1) is intended to offer equitable relief where there are “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:’”
Kanthasamy at paras 13, 21.
[31] The Officer’s characterization of the purpose of subsection 25(1) as an “exceptional response”
to “unforeseen circumstances”
is thus inconsistent with Kanthasamy. The circumstances of the Applicant, and other H&C applicants for that mater, need not be “unforeseen”
to warrant a positive exemption.
[32] I acknowledge the Respondent’s argument that the Decision need not be a “model of perfection:”
Fathi v Canada (Citizenship and Immigration), 2015 FC 805 at para 47. However, the above quoted statement is the only one I could find in the Decision dealing with the purpose of subsection 25(1). This leads the Court to wonder if the Officer’s mischaracterization of the purpose of subsection 25(1) may have tainted their overall analysis of the Applicant’s H&C application.
B. The Officer erred in finding that the Applicant has been an independent and self-sufficient person during her time in Canada
[33] In the Decision, the Officer found that the Applicant will not face difficulties as an elderly widowed woman in India living alone. In coming to this conclusion, the Officer noted: “The applicant does not put forth objective documentary evidence to support this statement. I note that the applicant has been an independent and self-sufficient person during her time in Canada. The evidence before me does not support that she would be unable to also be independent and self-sufficient in India.”
[34] The Applicant submits the Officer’s finding that the Applicant has been independent and self-sufficient in Canada is contrary to the record and constitutes an erroneous finding of fact.
[35] I agree.
[36] As noted in the affidavit of the Applicant’s son in support of his mother’s H&C application, the Applicant is financially and emotionally dependent on her son and his family. The Applicant’s son moved to Canada in 2019. His wife and elder son moved here in 2020, while his younger son continued to reside with the Applicant in India to provide emotional support. The Applicant has been living with her son and his family since she entered Canada with her younger grandson.
[37] While the evidence suggests that the Applicant supports her son’s family by cooking for them and caring for the grandchildren, there is no evidence before the Officer that the Applicant is in any way self-supporting in Canada. Indeed, the Officer noted in the Decision that the Applicant’s family members in Canada support her financially and that she has minimal level of establishment in Canada.
[38] The Officer’s finding that the Applicant is self-sufficient in Canada is not only contrary to the record before them but also contradicts their own finding that the Applicant was financially supported by her family and has demonstrated insufficient establishment in Canada.
C. The Officer relied on undisclosed country conditions documents to find the Applicant has support in India if needed
[39] The Officer found that there is insufficient evidence to demonstrate that the Applicant will face hardships in reintegrating in India for two reasons. First, the Officer stated that their review of the current country conditions in India indicates that India “has social systems, and senior support homes in place to support their residents if the need is required.”
Second, the Officer found that the Applicant has not put forth objective documentary evidence for consideration which supports that she faces difficulties in India due to her circumstances as an older female widowed adult.
[40] The Applicant submits that, in making this finding, the Officer engaged in double standard and breached procedural fairness by failing to disclose the source of the country conditions evidence.
[41] While I am not as convinced about the procedural fairness argument, I find the Decision was unreasonable because the Officer failed to disclose the country conditions evidence which formed the basis of their findings.
[42] Under Vavilov, decisions must bear the requisite hallmarks of justification, transparency and intelligibility, and the Court is to assess whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision: Vavilov at para 99.
[43] Here, the Officer justified their decision based, in part, on their assessment of the country conditions evidence in India without naming the source of the evidence. The Court is left to assess the Decision in a factual vacuum. Indeed, without knowing what these conditions documents were, I simply cannot conclude that the Officer justified their decision in light of the factual constraints.
[44] While each of the above noted errors may not be sufficient on their own to warrant the Court’s intervention, cumulatively, I find these errors undermine the overall reasonableness of the Decision. As such, the Decision should be set aside.
[45] The application for judicial review is granted.
[46] There is no question for certification.
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