Docket: IMM-3962-24
Citation: 2025 FC 544
Ottawa, Ontario, March 24, 2025
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
SHAHNAZ SHAMS |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant Shahnaz Shams is a citizen of Pakistan and a widow. Two of her sons are Canadian citizens and she presently resides in Canada with the family of one of them. Her husband passed away in 2008 while they were visiting in Canada. A third son, her eldest, who had applied unsuccessfully to sponsor his mother as a member of the family class, passed away from cancer in 2021. Until then, Ms. Shams had resided with his family since 2018.
[2] Ms. Shams applied twice for permanent residence on humanitarian and compassionate [H&C] grounds under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. This provision is reproduced in Annex “A”
below. An immigration officer [Officer] of Immigration, Refugees and Citizenship Canada refused the second H&C application, resulting in the judicial review application presently before the Court.
[3] There is no disagreement that the sole issue in this matter is whether the decision is reasonable, further to the presumptive standard of review. On a reasonableness review, the Court must ask itself whether the challenged decision exhibits the hallmarks of justification, transparency and intelligibility, and is justified in the context of the applicable factual and legal constraints: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25, 99.
[4] Having considered the parties’ written materials and heard their oral submissions, I find that Ms. Shams has met her onus of showing the decision is unreasonable in at least three respects, thus warranting the Court’s intervention. These are: (1) the Officer’s speculation about whether Ms. Shams would be approved in an alternative, temporary program to reunify with her family; (2) the application by the Officer of a high exceptionality threshold in assessing Ms. Shams’ H&C factors; and (3) the Officer’s assessment of the best interests of the (grand)children [BIOC]. I discuss each of these errors in turn.
II. Analysis
A. The H&C decision is unreasonable
[5] I am not convinced that the decision reflects an assessment of Ms. Shams’ situation according to Chirwa and whether her circumstances “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”
: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] at para 21, citing Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 IAC 338 at 350.
[6] The legally binding test for subsection 25(1) relief, as formulated by the majority, is discussed at length at paras 12-33 of Kanthasamy. It requires that an administrative decision-maker have the ability to empathize with an applicant for relief by placing themself in the applicant’s shoes to understand clearly and demonstrate sensitivity to the applicant’s particular situation: Dowers v Canada (Immigration, Refugees and Citizenship), 2017 FC 593 [Dowers] at para 3; Bawazir v Canada (Citizenship and Immigration), 2021 FC 1343 at paras 34, 39; Helalifar v Canada (Citizenship and Immigration), 2022 FC 1040 at para 32. I provide examples in the ensuing discussion of the reviewable errors.
(1) Speculation about alternative, temporary program
[7] I find that the Officer speculates unreasonably about whether Ms. Shams would be approved in an alternative, temporary program to reunify with her family.
[8] The Officer observes that H&C applications are not meant to replace or bypass the regular immigration system. In this context, the Officer determines that while family reunification is one of the objectives of the IRPA, there are existing immigration programs to facilitate this purpose, such as family class sponsorship or the parent/grandparent super visa which permits holders to remain in Canada up to five years. While the latter is the focus of these reasons, I also comment on the former briefly.
[9] The Officer then states that there is “little indication that the applicant would not be approved for a subsequent super visa if she reapplies for one,”
and that there is “little evidence that explains why the existing option is not viable for the applicant.”
[10] Ms. Shams argues that it is a reviewable error for an Officer to rely on the availability of a temporary remedy, such as a parent/grandparent visa, as a viable option to the permanent resident status which is what Ms. Shams seeks through her H&C application.
[11] In response, the Respondent contends that there is nothing to indicate that these alternatives are dispositive considerations regarding establishment or hardship. According to the Respondent, it is reasonable and permissible to mention the alternative pathways as a factor to keep in mind, which is what the Officer did.
[12] I disagree with the Respondent. Read holistically, I find the decision places unreasonable emphasis on the potential availability of a parent/grandparent super visa to Ms. Shams: Greene v Canada (Citizenship and Immigration), 2014 FC 18 at paras 9-10; Bernabe v Canada (Citizenship and Immigration), 2022 FC 295 at para 31; Chang v Canada (Citizenship and Immigration), 2024 FC 1005 at para 10; Kaur v Canada (Citizenship and Immigration), 2023 FC 412 at para 30.
[13] I add that, in my view, the Respondent’s reliance on Muti misplaced. There, the Court found it was not unreasonable for the officer to note that the applicant’s sons had taken no steps, notably an application under the family class to sponsor the applicant, in the direction of attempting to regularize the applicant’s status: Muti v Canada (Citizenship and Immigration), 2022 FC 1722 at paras 21-22.
[14] Here, however, there is evidence that Ms. Shams’ eldest son had taken that same step (i.e. filing a family class sponsorship application) but he passed away the year before the sponsorship application was refused. Further, and more to the point, Ms. Shams was without status when she filed her present H&C application, meaning there is no certainty that a future application for a parent/grandparent super visa will be granted.
[15] I find in the circumstances that the Officer not only speculates about whether it is possible for Ms. Shams to remain in or return to Canada on another basis but also demonstrates a singular lack of empathy for her situation and the previously refused sponsorship application that was pursued on her behalf by her now deceased son who died of cancer. In addition, I find that the Officer’s speculation about whether temporary resident status is available to Ms. Shams spills into the BIOC analysis, as explained below.
[16] I also determine that, in respect of this issue, the Officer unreasonably focuses on what the evidence does not state or what the Officer prefers that it would have addressed, rather than what it does: Dowers, above at para 7; Magonza v Canada (Citizenship and Immigration), 2019 FC 14 at para 49.
(2) Application of high exceptionality threshold
[17] Reading the decision holistically, I agree with Ms. Shams that the Officer assessed her situation unreasonably through the lens of “exceptional circumstances”
in the same sense described in three recent decisions of this Court: Wray-Hunt v Canada (Citizenship and Immigration), 2023 FC 1687 at para 17; Henry-Okoisama v Canada (Citizenship and Immigration), 2024 FC 1160 at paras 29-37; and Olasehinde v Canada (Citizenship and Immigration), 2024 FC 1634 [Olasehinde] at paras 4-5.
[18] As example, the Officer observes that “invoking sections A25 and A25.1 is an exceptional measure and not simply an alternate means of applying for permanent residence status in Canada.”
The Officer also states that “H&C applications are for individuals with exceptional circumstances that would hinder or prevent them from seeking out regular immigration streams.”
[19] In other circumstances, I might have been prepared to infer that the Officer meant “exceptional”
in the sense of an exemption or exception to the requirements of the IRPA. I find, however, that the Officer’s references to “exceptional circumstances”
(in the sense of a precondition to the application of H&C relief), when considered in the context of the determination that Ms. Shams is in the same situation as many others who wish to live with their children in Canada and that her circumstances are not exceptional, point to the Officer having committed a reviewable error.
[20] The Officer’s determination reflects, in my view, that an exceptional level of hardship relative to others was expected to warrant H&C relief, rather than accounting for Ms. Shams’ particular circumstances that would make removal from Canada bear more heavily upon her: Zhang v Canada (Citizenship and Immigration), 2021 FC 1482 at para 28. What is required of an H&C officer is a consideration of whether an applicant’s personal circumstances warrant humanitarian and compassionate relief, without needing to meet a threshold of exceptionality as compared to others. See also Olasehinde, above at paras 4-5.
[21] The Officer’s statements are more consistent, in my view, with the stricter test for granting relief formulated by the minority dissent in Kanthasamy (at paras 89-108), which emphasizes the exceptional nature of H&C relief, in contrast to the legally binding test articulated by the majority (at paras 12-33) which underscores the compassionate aspect of the relief. According to the majority, subsection 25(1) is seen as a flexible and responsive exception to the ordinary operation of the IRPA and involves the exercise of discretion to mitigate the rigidity of the law in appropriate cases: Kanthasamy, above at para 19.
(3) BIOC assessment
[22] I find the Officer also unreasonably focuses on what the evidence does not say or what the Officer prefers it would have said, than what it does, insofar as Ms. Shams’ grandchildren are concerned.
[23] According to subsection 25(1), the interests of children directly affected are to be taken into account among the H&C factors relating to a foreign national. Kanthasamy clarifies (at paras 39-40) that those interests are a singularly significant focus and perspective; they must be well-defined and examined with a great deal of attention.
[24] Notwithstanding that four of Ms. Shams’ 11 grandchildren provide letters of support for their grandmother, the interests of those grandchildren are not defined, let alone well defined, nor examined with a great deal of attention. Instead, the Officer states that the well-being of all 11 grandchildren were considered cumulatively. It is not clear from the decision what this means and, in my view, gives rise to a transparency concern.
[25] Rather than evince that the Officer was alert, alive and sensitive to the best interests of the grandchildren, the reasons show that the Officer unreasonably focused on whether Ms. Shams’ presence was required for their well being: Shah v Canada (Immigration, Refugees and Citizenship), 2024 FC 398 at paras 54-57. I find that, in effect, the Officer diminished or discounted this factor by speculating again that Ms. Shams may opt to extend her stay in Canada as a temporary resident.
III. Conclusion
[26] For the above reasons, the judicial review application will be granted. The decision will be set aside, with the matter remitted to a different officer for redetermination.
[27] Neither party proposed a serious question of general importance for certification. I find that none arises in the circumstances.
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