[1] This is an application for judicial review under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by a Senior Immigration Officer [Officer] dated January 3, 2024 [Decision]. The Decision refused the Applicant’s application for permanent residence on Humanitarian and Compassionate [H&C] grounds, made under s 25(1) of IRPA. Because of this, these Applicants may be required to return to Serbia to apply for permanent resident status in Canada.
II. Facts
[2] The Applicant is a 30-year-old Serbian citizen who applied, alongside his 28-year-old wife and 6-year-old son, also Serbians, for Canadian permanent resident status. The Applicant and his wife have two other children, ages 3 and 1. Both are Canadian citizens.
[3] The Applicant brought this application based on the H&C grounds of establishment and hardship upon return.
A. Establishment
[4] The Applicants came to Canada in August 2018 on a temporary resident visa [TRV] and work permit, valid until November 1, 2025. A skilled soccer player in Serbia, he came to Canada to play for the Scarborough SC soccer team in the Greater Toronto Area. His wife and oldest son entered Canada in June 2019, also on TRVs — valid until May 22, 2025, and November 1, 2025, respectively.
[5] The Applicant is a 30-year-old male and national of Serbia. His accompanying spouse is a 28-year-old female and his accompanying child is a 6-year-old male, both nationals of Serbia. The couple has 2 Canada-born children, a 3-year-old boy and a 1-year-old girl. The Applicant’s family has been residing in Canada for just over 6 years and 5 years, respectively, during which time their youngest two children were born.
[6] Both the Applicant and his wife are gainfully employed, tax-paying residents who are legally in Canada and indeed they have built a home here. When not playing soccer with Scarborough SC soccer team, the Applicant works as a skilled roofer. He specializes in high pitched roofs, a rare and valuable skill.
[7] He is active in the community, both in relation to soccer and his church, including the local cathedral.
[8] He and his wife have unblemished civil and criminal records and wish to make a life in Ontario with their young family.
[9] The Applicant has made many friends in Canada and there is ample evidence of his hard work. Nine letters of support were sent on his behalf from friends, neighbours, and coworkers, which attest to the positive qualities of the Applicant and his family and their kind, hardworking and respectful nature. Four employment letters confirm the hardworking, competent, and reliable nature of the Applicant and his spouse. Multiple photos show the Applicant at work and with his family celebrating different events.
[10] Furthermore, many of the letters of support mention the applicant being involved in the community: the principal of his eldest son’s elementary school states that the Applicant joined their non-profit organization, Community Roots Inc., as a sports facilitator; a next door neighbour states the Applicant volunteered to deliver groceries; and lastly, Reverend Obradovic from All Serbian Saints Serbian Orthodox Cathedral writes that the Applicant has actively been involved since 2018 and has assisted with cathedral renovations and clean-ups.
[11] The Officer concludes the Applicants have built a positive reputation through their community involvement. He was satisfied they have developed a social network in Canada, gave positive consideration to the Applicant’s active role in the cathedral, the neighbourhood, and the non-profit organization, developing sports and fitness programs, as well as to the family’s positive relationships they have built with those around them.
[12] The Officer considered the employment of the Applicant and his wife, as well as their positive social ties and community involvement.
[13] Despite the above, the Officer gave only “some positive weight to the family’s establishment”
in Canada. The Officer ultimately found they had not demonstrated a “level of establishment that would result in hardship if they left Canada.”
The Decision says they may keep in touch through modern means of communication (text messages, social media, voice calls, video calls etc.) with their friends and acquaintances or organize visits to Canada to maintain these ties. And gave all their positive factors noted above “little weight”
:
At present, I am not persuaded that the applicants have achieved a level of establishment that would result in hardship if they left Canada. Thus, I give this factor little weight.
[14] With respect, I am not satisfied this assessment is within the range of reasonable and possible outcomes in this case, which is the hallmark of the reasonableness review I am conducting. Modern means of communication and social media are no substitute for the wealth of positive establishment indicators found by the Officer in this case, both in favour of the Applicants and also in favour of their communities: soccer, school, church, not for profit, and business: see also Lopez Alvarez v. Canada (Citizenship and Immigration), 2022 FC 130 which held similarly at paragraphs 32-34. The assessment with this underpinning is illogical, contrary to the teachings of the Supreme Court of Canada.
[15] Further on the issue of establishment, the Officer concludes:
Finally, the applicants are not inadmissible to Canada. I note that they do not have to leave Canada immediately. The applicants currently hold valid temporary resident status – the applicant as a worker until 2025/11/01, the spouse as a worker until 2025/05/22 and the child as a visitor until 2025/11/01. They have successfully extended their status in the past and they may choose to apply for another extension. I note counsel states that the applicant’s English level is insufficient for any other immigration category. I observe the applicant’s CELPIP scores – listening 5, reading 5, writing 7 and speaking 5. However, I note that for Canadian Experience Class stream where roofers fall under TEER 3 of skilled work experience, require minimum level of 5 in all four language abilities, which the applicant has. Moreover, the Provincial Nominee Program for Ontario has listed roofers as potential candidates and although they do have language requirements, it is based on total points accumulated in the profile and not based on a minimum score required. I find little indication of whether the applicant has considered or explored these streams of immigration and why specifically, the applicant would be ineligible to apply or express interest for any of these programs. It should be noted that invoking section A25 and A25(1) is an exceptional measure and not simply an alternate means of applying for permanent resident status in Canada.
[Emphasis added]
[16] In my view, this conclusion sets the bar too high, and also unreasonably fetters the Officer’s discretion in requiring the Applicant establishes he is “ineligible to apply or express interest for any of these”
other immigration programs. In this respect, I followed Justice Favel in Wardlaw v Canada (Citizenship and Immigration), 2019 FC 262. As I held in Sidhu v Canada (Citizenship and Immigration), 2020 FC 133 at paragraphs 12–13:
[12] I am also concerned that the Officer fettered his discretion in stating a proposition of law that is not accurate. In particular, the third paragraph of the Officer’s reasons states in part:
There is insufficient evidence before me that she would be unable to apply in a normal manner. While it may be convenient for the Applicant to remain in Canada and apply for permanent residence, the purpose of humanitarian and compassionate applications is not convenience, but rather to allow relief and deserving cases where relief is not available through normal legislative means.
[Emphasis added]
[13] In my view this puts the test too high, but in any event, even if the statement is valid, through the principles of comity I am bound to accept the decision recently made by my colleague, Justice Favel in Wardlaw v Canada (Citizenship and Immigration), 2019 FC 262, at paragraph 36 where Justice Favel stated:
[36] At several points in the decision, the Officer notes that the Principal Applicant has failed to prove that she is not eligible for the SCLPC. Nowhere in the text or purpose of subsection 25(1) does such an obligation arise. Instead, the Officer has placed a burden on the Applicants based on the policy contained in the IRCC Manual. The Officer has fettered her discretion by treating the manual as if it were a binding legal framework.
B. Hardship upon return
[17] The Decision also state there is insufficient evidence to demonstrate the Applicants’ potential hardship upon the family’s return to Serbia. This section agreed with the essence of the Applicant’s narrative concerning his reasons for leaving Serbia but in my view did so unreasonably. The Decision states:
I also note that Serbia has high unemployment rate and soccer hooliganism continues to be a problem. I accept that corruption is an issue in Serbia and it is not limited to government. However, I find that the applicant has presented little evidence that he has personally been affected by these issues in Serbia. I understand that the soccer team that he was in made unreasonable, untenable demands to exert control on him and make their own profits at his expense. … I observe an article where FIFPro warns athletes against joining Serbian clubs due to financial issues. However, it is unclear whether this was the case for the applicant and little information is available to describe the specific experiences of the applicant, his family or his acquaintances who have encountered similar mistreatment and what the consequences were. I reiterate that the onus is entirely upon the applicant to provide such information to describe the hardship in the event of his return to Serbia.
[18] In my view the Applicant provided detailed information in the record before the Officer, and therefore the request for more detail is unreasonable. As to personal effect on this family, the Applicant’s experiences motivated him and his family to move to Canada. These were central to their decision to leave their native Serbia.
[19] In addition, the Decision covered country conditions in terms of hardship and in part said:
Counsel states the country conditions in Serbia are very unstable and provides numerous news articles and country conditions documentation in support of adverse country conditions in Serbia. The issues of concern include poor economic and political landscape, corruption, open conflict and tensions in southern Serbia and northern Kosovo, human rights violations, and soccer hooliganism…
[20] Again and with respect the Decision does not address but should have, the fact that Serbia is a close ally of Russia, which as the world knows, illegally invaded Ukraine in 2022 contrary to international order. This information is contained within the record before the Officer. Moreover, while cases like these are determined by conditions in the applicants’ country of citizenship, most European countries belong to the EU, and as such removal to one may afford access to other EU countries given relevant mobility provisions within the EU. This is not the case with Serbia which has applied for admission to the EU but is not yet accepted. Thus, if unsuccessful, the Applicant must return to Serbia and apply for permanent residence from there should they wish to return to Canada sooner rather than later. This is relevant in my view, given the narrative in this case.
[21] Finally, I agree with the Applicant’s submission that the Officer’s “find[ing] that the applicant has presented little evidence that he has personally been affected by these issues in Serbia”
is unreasonable because the Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] does not require evidence of “personal targeting,”
See e.g. Kanthasamy at paragraph 56:
[56] As these passages suggest, applicants need only show that they would likely be affected by adverse conditions such as discrimination. Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant under s. 25(1), whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from those experiences…
III. Conclusion
[22] Based on the foregoing, judicial review will be granted and the matter remanded for redetermination by a different decision-maker.
IV. Certified question
[23] Neither party proposed a question for certification, and I agree none arises.
V. Costs
[24] This is not a case for costs.
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