January 18, 2018

Lack of compassion makes IAD decision unreasonable

Posted by Legal Team - Bellissimo Law Group PC

As you may know, section 25 of the IRPA “provides the flexibility to grant permanent residence status or a permanent resident visa to certain foreign nationals who would otherwise not qualify in any class, in cases in which there are compelling H&C grounds.”[1] This creates “an equitable jurisdiction whereby humanitarian and compassionate considerations and the best interests of the child are to be weighed.”[2]

 In A.B. v. Canada (Citizenship and Immigration), 2017 FC 1170, the Federal Court reaffirmed the importance of applying a compassionate approach in assessing humanitarian and compassionate (H&C) relief. This case involved a 45-year-old Canadian citizen who applied to sponsor her parents as members of the family class in September 2009. The family learned that the Applicant’s father was HIV positive during the medical examination process. In the procedural fairness letter they received, the immigration officer advised that his health condition might cause an excessive demand on health services. Despite providing substantial evidence to show the family was able to cover the cost of the Applicant’s father’s anti-retroviral medication and requesting H&C relief, her father was found inadmissible and the sponsorship application was refused. The Immigration Appeal Division (IAD) upheld the immigration officer`s decision, concluding that there were insufficient H&C factors to grant relief.

The Federal Court found that the IAD overwhelmingly failed to apply an empathetic approach to this case, and went so far as to ask the Respondent to “identify any part of the Decision where the IAD applied compassion.“[3] The Federal Court found that the IAD’s decision was unreasonable, setting it aside and referring the matter for redetermination. To fulfill their intended purpose, H&C grounds must be applied compassionately.