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February 21, 2019

Lessons from a Recent Federal Court Review of a Humanitarian and Compassionate Application

Posted by Michelle Adormaa Owusu - Bellissimo Law Group PC

Earlier this month the Federal Court released its decision in Babafunmi[1], allowing the application for judicial review and ordering that the Applicant’s application for permanent residence on humanitarian and compassionate grounds (“H & C”) and a Temporary Residence Permit be redetermined by a different officer. This recent case serves as a reminder of the approach that decision-makers should take when reviewing an H & C application involving criminality, rehabilitation and the best interests of the child (“BIOC”).

Mr. Babafunmi was a Nigerian citizen who had studied and worked in the USA for several years prior to being deported to Nigeria for criminality. He later travelled to Canada to make a refugee claim based on fears tied to his time in Nigeria. The claim was refused and so were applications for a Pre-Removal Risk Assessment, sponsorship by his spouse/common-law partner from within Canada and criminal rehabilitation.

Justice E. Susan Elliott began her analysis by rejecting the respondent’s argument that rehabilitation factors fall outside the scope of a judicial review of a H & C application, noting:

I agree that an H&C application is not at all the same as a rehabilitation application. Nonetheless, the Officer did engage in an analysis of the Applicant’s criminality and his rehabilitation determining that they were “significant negative factors” in the Officer’s assessment of the H&C application. It is therefore necessary to determine whether the Decision, including the criminality and rehabilitation findings, is justified, transparent and intelligible and that the outcome falls within the range of possible acceptable outcomes defensible on the facts and law in light of the record before the Officer.[2]

The Court held that when reviewing the H & C application of an individual who has prior criminality and has provided evidence of rehabilitation, the officer must balance both “the positive and negative factors” as well as “consider the likelihood of the Applicant re-offending”.[3] The Court relied on Lau v. Canada[4] as authority for the proposition that the likelihood of re-offending is the most important factor in an application for rehabilitation.[5]

Turning to the BIOC, Mr. Babafunmi submitted that several children would be directly affected by his removal to Nigeria. The officer had adopted the following position on two of these children – the Applicant’s Canadian godchildren:

their best interests would not be significantly negatively impacted by the Applicant being returned to Nigeria and they could strive to maintain their close relationship by other means.”[6]

The Court found the officer had erred in the BIOC analysis by failing to consider the best interests of the Applicant’s godchildren going forward.[7] The officer, in Justice Elliot’s view had not followed the approach of the Supreme Court of Canada in Kanthasamy[8] and Baker[9].

Those preparing or reviewing an H & C application can draw on the lessons and cases referred to in Babafunmi when preparing or reviewing an H & C application that may raise questions of the Applicant’s likelihood of reoffending or the best interests of a child who may be directly affected by the decision.

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