Date: 20250313
Docket: IMM-11715-23
Citation: 2025 FC 473
Vancouver, British Columbia, March 13, 2023
PRESENT: Justice Andrew D. Little
BETWEEN: |
GHAZALPREET KAUR KANG |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The applicant asks the Court to set aside a decision dated September 5, 2023, which denied her 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 applicant 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.
[3] For the following reasons, I conclude that the decision was unreasonable and must be set aside.
I. Background and Events Leading to this Application
[4] The following background comes from the applicant’s statements and materials filed in support of her H&C application.
[5] The applicant is a citizen of India. At the time of the applicant’s H&C application, she was 20 years old and separated from her husband. She lived with her brother and his family in Ontario.
[6] The applicant arrived in Canada from India on December 13, 2021. She was 18 years old. She had been in a relationship with an Indian-born man, aged 25, since 2020. He lived in Canada. They began their relationship online during the pandemic. Their families had known each other in India before his family came to Canada about a decade earlier.
[7] On December 18, 2021, five days after her arrival in Canada, the applicant married her husband in Abbotsford, British Columbia. Her parents travelled from India for the occasion, as did her brother and his wife from their residence in Ontario.
[8] The applicant looked forward to building a life with her new husband in Canada. They began to live together in a home in British Columbia with his parents.
[9] The applicant’s H&C statements advised that very soon after the wedding, things changed. In front of his parents, her husband would treat the applicant as someone he could not live without. When they were alone, he was entirely different. Her husband began to question her character and verbally abuse her. She described his actions as blaming her for nothing, devaluing her, belittling her version of reality and calling her and her family selfish and illiterate. He began to isolate her from her family and only took her out of the house when he chose. Her communications with her parents became less and less. Her husband checked her phone regularly to make sure what and with whom she was communicating. She stopped talking to her parents and stopped using social media for fear of provoking a reaction from him, essentially cutting her off from the outside world.
[10] The applicant described incidents of physical violence by her husband toward her. She also described incidents of sexual abuse that began as early as January 2022.
[11] Financially, the applicant was entirely dependant on her husband and his family. Her family had spent all their live savings on the wedding. The applicant felt that she was only there to provide sex for her husband and to suffer his abusive treatment for life.
[12] In May 2022, the applicant’s husband filed an application to sponsor the applicant to become a permanent resident of Canada. He did not file an application for a work permit to enable her to work outside the home. By this time, the husband and his parents had begun to pressure the applicant to have a baby.
[13] That same month, the applicant’s brother and sister-in-law made a surprise visit. They learned about the abuse the applicant was experiencing. Her sister-in-law secretly provided the applicant with birth control pills, which she took and hid from her husband.
[14] In May 2022, the applicant also began to take notes about the incidents. Her H&C application described specific events in June and July.
[15] In late July 2022, the applicant left her husband, with only her passport and a garbage bag of clothes. Her brother flew immediately from Ontario to British Columbia to support her. Two days later, the applicant returned to the home with a peace officer to collect her belongings. Her in-laws refused to give her any of her possessions.
[16] The applicant moved to Ontario to live with her brother and sister-in-law. They have continued to support her. She has received support and counselling from a non-profit organization for women. She also volunteers at a different non-profit organization.
[17] The applicant’s husband was charged with criminal offences, the outcome of which was not before the H&C officer or the Court.
[18] In August 2022, after the separation, the husband withdrew his sponsorship of the applicant for permanent residence.
[19] As of the time of the H&C application, the applicant had a visitor record issued in December 2022 and valid until June 2024. The applicant applied for a study permit, which was refused in December 2022. The H&C officer understood that the applicant had been issued a temporary resident visa valid until 2028.
II. The H&C Decision
[20] The applicant applied for permanent residence with an exemption under subsection 25(1) on H&C grounds. Her application raised a number of issues for consideration, including:
a)the abuse and intimate partner violence experienced by the applicant in Canada;
b)that the applicant would suffer hardship on a return to India, because she could not live with her parents, she has no financial resources, and she would be treated as an outcast in her community and Indian society; and
c)the applicant’s establishment in Canada.
[21] By decision dated September 5, 2023, an officer refused the applicant’s request. The H&C decision stated, in part:
During the eight-month-marriage, the applicant stated that she had been subject to the family violence including verbal abuse, emotional abuse, physical and sexual abuse from her separated husband and his family in Canada. I find submitted police release order, application for spousal support, and letters of support from the above two organizations, her brother and friends testified to the applicant’s personal traits and the family violence she had experienced. I accept the established family violence and I note the applicant is now in a safe place living with her brother and receiving the legal protection and community support in Canada. While I assign weight to the family violence, this alone is not determinative of whether the applicant should be given a special exemption under subsection 25(1) of the IRPA, as H&C assessment is a global one consisting of factors as the degree of establishment, the length of time in Canada, the hardship of returning to home country, and the best interest of the child.
[…]
Overall, I have all my sympathy for the applicant’s experience with the family violence, and I find it commendable that the applicant has extricated herself from an abusive marriage and gotten back on her feet during a short period of time with the support of her family and community. I further applaud the applicant for standing up to the abuser to have the justice served and her legal rights protected and I have also considered the applicant as a victim of spousal abuse who was deprived of the opportunity to become a permanent resident as a result of the termination of an abusive relationship. However, I find there is no immediate risk for the applicant to leave Canada, as the applicant‘s TRV is still valid for 4 more years, which allows the applicant to stay in Canada to receive support and deal with the legal matters, and as the applicant has a future plan of studying and working in Canada, she can apply for a study permit/work permit in Canada during this time. In the future, if the applicant needs to return to India to apply for the visa from there as required by the IRPA, I don’t find, based on the evidence and her personal profile before me, the applicant will not be able to get access to the support network (e.g., her family, friends, community organization, legal authority, etc.) in India during the regular immigration processing, if needed. Meanwhile, the applicant may continue to maintain the relationship with her brother and support network in Canada through remote communication during her absence from Canada.
[…]
[22] The officer concluded that neither the applicant’s establishment in Canada, nor the hardship she would suffer if she applied for permanent residence from India, warranted exceptional relief under subsection 25(1), taking into account her family ties and services and support available in India.
[23] The H&C decision concluded:
After a global assessment of the situation and taking into consideration all the evidence on file, while I am sympathetic to the applicant for the family violence experience and I give positive consideration to her resilience and bounce back from the adversity, I don’t find, based on the evidence before me, the submissions to be complete for a fulsome understanding of the concerns presented by the applicant. As such, there are insufficient grounds in this application to grant a permanent resident status or exceptional H&C relief under subsection 25(1) of the IRPA, given the applicant’s brief residence/marriage history, the lack of interdependent relationship in Canada, and the availability of regular immigration schemes specified in the IRPA.
III. Analysis
A. Legal Principles
[24] The standard of review of the H&C decision 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.
[25] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras 8, 63; Vavilov, at paras 12-13 and 15. 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: Mason, at paras 8, 59-61, 66; Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194; Canada Post Corp v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at paras 2, 28-33, 61.
[26] The requirements of the applicable statute and binding case law operate as constraints on a decision, unless reasons are provided for departing from them or the administrative context requires an adaptation of applicable case law or doctrine: Vavilov, at paras 106, 108, 111-113. As stated in Vavilov, “precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide”
, emphasizing that it would generally be unreasonable for the decision maker to interpret and apply a legislative provision without regard to a binding precedent: Vavilov, at para 112.
[27] 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.
[28] 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; Zhang v. Canada (Citizenship and Immigration), 2021 FC 1482, at paras 16-19, 24, 25, 29. The purpose of the H&C provision is to provide equitable relief in those circumstances: Kanthasamy, at paras 21-22, 30-33 and 45.
[29] 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, 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.
[30] 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.
B. The Parties’ Positions
[31] The applicant submitted that the H&C decision did not contain a “proper family violence analysis”
. The applicant argued that despite accepting that the applicant had a history of an abusive relationship including physical and emotional abuse, the H&C decision did not take into account the domestic abuse as a compassionate factor, did not include a sympathetic consideration of the applicant’s circumstances and failed to appreciate that by leaving the relationship, the applicant had to forego any prospect of a sponsorship by her husband.
[32] The applicant likened the present case to Febrillet Lorenzo v. Canada (Citizenship and Immigration), 2019 FC 925, in which Justice Strickland stated that the officer appeared “to have failed to recognize that the domestic abuse the Applicant has suffered is, in and of itself, a compassionate factor to be weighed in the Officer’s analysis”
: at para 18. The applicant argued that the officer “erred in failing to consider, sensitively or otherwise, the domestic abuse that the Applicant suffered as a compassionate factor in the decision-making process, rendering the decision unreasonable”
, quoting Febrillet Lorenzo, at paragraph 25.
[33] The applicant submitted that she is no longer the same person has she was when she arrived in Canada, due to her emotional, physical and psychological suffering here. She argued that the officer appeared to suggest that the applicant had recovered from the abuse and violence, which is not the case.
[34] The applicant also maintained that the H&C decision overlooked the affidavit from her father. That affidavit confirmed that the family had spent “our life savings”
on the wedding and the applicant’s travel to Canada; that her parents in India are retired; and that they live “hand to mouth”
; that they do not have enough rooms in their house for her to live with them; and that they have the bare minimum to live on. Her father also described the social stigma and trauma she will experience should she return to India.
[35] The respondent submitted that the H&C decision was reasonable. According to the respondent, the officer reasonably assessed the applicant’s establishment in Canada and properly assessed the potential hardships faced by the applicant in India given the modest evidence before the officer in the H&C application (citing Leteyi v. Canada (Citizenship and Immigration), 2022 FC 572, at para 23; Tshiendela v. Canada (Citizenship and Immigration), 2022 FC 664, at paras 52, 55, 56). The respondent argued that the officer reasonably considered all of the circumstances, including the domestic violence and ongoing legal matters stemming from it, and that the applicant’s submissions simply disagreed with the outcome and the weighing of the various factors related to possible H&C relief.
[36] The respondent’s position also emphasized that there was no reason why the applicant could not apply for permanent residence from overseas and that the officer reasonably concluded that there were insufficient H&C factors to justify an exemption.
[37] In reply, the applicant noted that while she is permitted stay in Canada at present on a temporary residence permit, she is unable to work or study. She is entirely dependant on her brother (as she was previously on her husband and her parents) and cannot do anything to become independent. She does not have the means to return to India to apply for permanent residence and then return to Canada.
C. Was the H&C Decision unreasonable?
[38] To reach a conclusion on this judicial review application, I do not need to address all of the parties’ submissions on alleged reviewable errors in the H&C decision. In my view, the decision contained material errors in the reasoning process with respect to intimate partner violence, a key aspect of the applicant’s H&C application, which rendered the decision unreasonable under the principles in Vavilov.
[39] An H&C decision must consider humanitarian and compassionate factors in its analysis under subsection 25(1), consistent with Chirwa and the equitable goals of that provision: Kanthasamy, at paras 13, 21, 45; Muti v. Canada (Citizenship and Immigration), 2022 FC 1722, at para 10; Liu v. Canada (Citizenship and Immigration), 2022 FC 1691, at para 13; Gregory v. Canada (Citizenship and Immigration), 2022 FC 277, at paras 36-37; Marshall v. Canada (Citizenship and Immigration), 2017 FC 72, at para 33.
[40] A compassionate approach requires a “considered and sensitive assessment of the applicant’s circumstances”
but does not mandate a particular outcome to the H&C application: Obiwale v. Canada (Citizenship and Immigration), 2024 FC 1707, at para 31 (quoted with approval in Onifade v. Canada (Citizenship and Immigration), 2025 FC 47, at para 82).
[41] As the Court stated in Zhang, “[w]hat is required is that an applicant’s personal circumstances warrant humanitarian and compassionate relief.”
The focus must be on the central question of whether the facts would excite in a reasonable person in a civilized community a desire to relieve the applicant’s misfortunes: Zhang, at paras 28-29.
[42] This Court has also held that intimate partner violence, sometimes called domestic abuse or family violence, is a compassionate factor in itself in an H&C application: Febrillet Lorenzo, at paras 18, 19, 25. Failure to consider it, and its effects, is a reviewable error: Fearon Edwards v. Canada (Citizenship and Immigration), 2024 FC 1416, at para 20; Kaur v. Canada (Citizenship and Immigration), 2024 FC 1275, at paras 17-20; Sunara v. Canada (Citizenship and Immigration), 2023 FC 675, at paras 8-10; Raju v. Canada (Citizenship and Immigration), 2022 FC 900, at para 19(d); Febrillet Lorenzo, at para 24 (referring to the sympathetic consideration of an applicant’s circumstances of leaving an abusive relationship and thus foregoing any prospect of an approved sponsorship by her husband) and para 25.
[43] In this case, the officer’s assessment of intimate partner violence found it commendable that the applicant extricated herself from the marriage and got “back on her feet during a short period of time”
. The officer applauded her for standing up to her abuser. The officer’s overall conclusion gave positive consideration to the applicant’s resilience and “bounce back”
from the adversity of the intimate partner abuse.
[44] However, by focusing on these points to the exclusion of the contents of the applicant’s filed statements, the H&C decision did not conduct a proper assessment of intimate partner violence under IRPA subsection 25(1).
[45] As required by Kanthasamy, a central question for the officer was whether the abuse and intimate partner violence suffered by the applicant, considered as a compassionate factor, would excite in a reasonable person in a civilized community a desire to relieve her misfortunes. Having accepted that the applicant suffered from intimate partner abuse, the officer had to consider the facts and events that occurred, and their effects on the applicant, and address that central question. The H&C decision “accept[ed] the established family violence”
but did not assess the contents of the applicant’s filed statements (even in summary) and did not squarely address that central question. Instead, the officer commended the applicant’s resilience and “bounce back”
from the adversity.
[46] The H&C decision did not have to set out all (or any) of the specific acts or conduct described by the applicant in her statements filed on the H&C application. However, a “considered and sensitive assessment of the applicant’s circumstances”
needed to show that the officer recognized and appreciated the fundamental nature of the intimate partner violence, which involved not only emotional, verbal physical and sexual abuse (as the officer stated), but also breach of trust, betrayal, controlling behaviour, isolation of the applicant from her family and friends, abuse of her financial dependence on the husband, the stifling of her ambitions and independence, and the shattering of her dreams of a happy marriage in Canada, thousands of kilometres from her home in India. All of these are found in the applicant’s own detailed and candid statements in her H&C application materials, but were not mentioned in the reasons. In my view, an appreciation of these factors was essential to the assessment of the applicant’s H&C application and to a proper application of the Chirwa standard approved in Kanthasamy.
[47] The officer’s reasons “assigned weight”
to the intimate partner violence and found that family violence alone was “not determinative”
. While the officer gave “all … sympathy”
to the applicant for her experiences with family violence, the reasons did not disclose how much weight was given to the intimate partner violence as a compassionate factor, nor did the reasons provide any justification for why such weight was assigned. These omissions in the reasoning compounded the failure to assess the facts and events recounted by the applicant in her filed statements and the failure to address the central question described above. The omissions raise concerns about the transparency of the officer’s reasoning, a hallmark of reasonableness under Vavilov principles: Vavilov, at paras 86, 95-96, 98, 99-100, 127; Mason, at paras 59-61.
[48] These interrelated flaws in the reasoning process, which relate to both justification and transparency on a central concern raised by the applicant, were fundamental to the overall H&C decision under IRPA subsection 25(1). In my view, the decision contained sufficient material flaws to render it unreasonable: Vavilov, at paras 85-86, 99-101.
IV. Conclusion
[49] I conclude that the officer’s decision must be set aside and the matter remitted to another officer for redetermination. The applicant shall have the right to update or file additional evidence and/or submissions in relation to the redetermination of his H&C application.
[50] It is not the Court’s role to comment on the merits of the H&C application or the appropriate outcome of the redetermination, and these Reasons do not do so.
[51] Neither party raised a question to certify for appeal. No question will be stated.
JUDGMENT in IMM-11715-23
THIS COURT’S JUDGMENT is that:
The application is allowed. The decision dated September 5, 2023, is set aside.
The matter is remitted for redetermination by another officer. The applicant shall be permitted to update her application with additional evidence and/or submissions for the redetermination.
No question is certified for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act.
"Andrew D. Little"
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