Date: 20250304

Docket: IMM-15595-23

Citation: 2025 FC 405

Toronto, Ontario, March 4, 2025

PRESENT: Justice Andrew D. Little

JUDGMENT AND REASONS

[1] The applicants ask the Court to set aside a decision by an officer dated September 5, 2023, which denied their request for permanent residence in Canada with an exemption on 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 applicants are a family, consisting of a father, mother and their daughter. All are citizens of Albania. The mother is also a citizen of Greece. The family also includes a son born in Canada who is a Canadian citizen.

[3] The father entered Canada in January 2018. The mother and daughter followed in March 2018. After an unsuccessful claim by the father for refugee protection in Canada, the applicants applied for permanent residence with an H&C exemption under IRPA subsection 25(1).

[4] By letter and attached reasons dated November 27, 2023, a senior immigration officer refused their H&C application.

[5] In this judicial review application, the applicants submitted that the H&C 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.

[6] For the following reasons, this application must be dismissed because the H&C decision was reasonable.

I. Legal Principles

A. Judicial Review

[7] The standard of review of the officer’s substantive H&C decision on a judicial review application is reasonableness, as described in Vavilov: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909, at paras 42-44.

[8] 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; Mason, at paras 8, 59-61, 66.

[9] 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.

[10] 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.

B. H&C Principles

[11] Subsection 25(1) of the IRPA gives the Minister discretion to exempt foreign nationals from the ordinary requirements of that statute and grant permanent resident status in Canada, if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. The H&C discretion in subsection 25(1) is a flexible and responsive exception to the ordinary operation of the IRPA, to mitigate the rigidity of the law in an appropriate case: Kanthasamy, at para 19.

[12] Humanitarian and compassionate considerations refer to “those 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’ from the effect of the provisions of the [IRPA]”: Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 IAC 338, at p. 350, as quoted in Kanthasamy, at paras 13 and 21. The purpose of the H&C provision is to provide equitable relief in those circumstances: Kanthasamy, at paras 21-22, 30-33 and 45.

[13] Subsection 25(1) has been interpreted to require that the officer assess the hardship that the applicant(s) will experience upon leaving Canada. Although not used in the statute itself, the appellate case law has confirmed that the words “unusual”, “undeserved” and “disproportionate” describe the hardship contemplated by the provision that will give rise to an exemption. Those words to describe hardship are instructive but not determinative, allowing subsection 25(1) to respond flexibly to the equitable goals of the provision: Kanthasamy, at paras 33 and 45.

[14] The H&C assessment under subsection 25(1) is a global one, and all relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances: Kanthasamy, at paras 25, 27-28, 33; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras 74-75.

II. Analysis

(1) Best Interests of the Children

[15] When assessing applications on H&C grounds, an officer must always be alert, alive and sensitive to the best interests of the children (“BIOC”). Those interests must be well identified and defined, and be 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.

[16] The applicants submitted that the H&C decision applied the wrong legal test to the BIOC and was not alert, alive and sensitive to the best interests of the two children. I do not agree.

[17] In my view, the H&C decision did not err in law as the applicants submitted. The decision expressly recognized the principles set out immediately above and in substance applied them in the decision. Although the applicants argued that the officer applied a “basic needs” approach, I find that the officer mentioned that the children’s basic needs were currently being met in Canada but focused on their best interests during the BIOC analysis. The officer ultimately determined that the applicants “will ensure that their children’s best interests and basic needs will be met, regardless of what country they are all in.” There was no reviewable error.

[18] In addition, the officer’s reasons demonstrated a clear understanding of the issues raised by the applicants and the information related to the BIOC in their H&C application. The decision reasonably assessed how the children, aged seven and two, would be affected by a departure from Canada. The officer considered the children’s relationship with their uncles who resided in Canada on a temporary basis at the time of decision. While the officer found that the children have a strong bond with their uncles, the children could reunite with them outside Canada. The decision reasonably assessed the potential hardship the children could suffer if they leave Canada including concerning language and schooling for the elder child, based on the information provided in the H&C application. The applicants did not identify evidence in their H&C application about the family’s spoken language(s) in the home to support their argument at the hearing concerning hardship arising from returning to Albania. The officer also found that there was little corroborative documentary evidence to indicate that the education system in Albania would be inaccessible, unavailable or inadequate for the children if they return to that country. More generally, the officer found that there was insufficient evidence to show a negative impact on the children if they left Canada and returned to Albania.

[19] Given the contents of the H&C application before the officer, the officer’s reasons assessed the applicants’ arguments and supporting evidence in a responsive manner and respected the factual constraints bearing on the decision. I have been unable to identify any material evidence that was ignored or that contradicts an important finding in the decision: Vavilov, at paras 125-126.

[20] Accordingly, the applicants have not demonstrated that the decision contained a reviewable error in the assessment of the BIOC.

(2) Alleged Hardship of leaving Canada

[21] The applicants submitted that the H&C decision contained an error of law because the decision applied a legal standard of exceptionality to the applicants’ evidence of establishment in Canada, rather than considering their application based on undue hardship and a Chirwa approach to H&C relief.

[22] I do not agree. The officer did not apply an exceptionality standard. To the contrary, the H&C decision properly focused on the hardships identified by the applicants in their H&C application including their written submissions.

[23] Overall, I find that the officer reasonably considered the applicants’ submissions and evidence about the applicants’ relationships in Canada and the father’s business in this country.

[24] Two other points made by the applicants must be addressed. First, the officer found that there was “little evidence present in the submissions to indicate that the PA [the father] will be unable to continue managing and operating his businesses from abroad and as a result, will have to cease its operations”. There is some merit in the applicants’ challenge to the finding that the father’s business could be operated from outside Canada. Second, I appreciate the applicants’ concerns about the officer’s predictive findings related to family support in Albania if they return there. The presence of family members in an applicant’s country of origin does not necessarily mean that the family members will be involved in the applicant’s life after a return to that country. That said, the officer’s findings were not contradicted by any information in the applicants’ H&C application.

[25] In my view, these two arguments do not raise sufficient concerns to render the overall decision unreasonable under Vavilov principles: Vavilov, at para 100. It is not this Court’s role to reweigh or reassess the evidence or make its own findings. The H&C decision did not ignore, fundamentally misunderstand or misinterpret any information in the H&C application that was central or material to the applicants’ request for relief. See Vavilov, at paras 83, 125-126.

III. Conclusion

[26] The application is therefore dismissed.

[27] Neither party raised a question to certify for appeal and none will be stated.

JUDGMENT in IMM-15595-23

THIS COURT’S JUDGMENT is that:

1. The application is dismissed.

2. No question is certified for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act.

"Andrew D. Little"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: