𝗛𝘂𝗺𝗮𝗻𝗶𝘁𝗮𝗿𝗶𝗮𝗻 𝗿𝗲𝗹𝗶𝗲𝗳 𝗶𝗻 𝘀𝗽𝗼𝗻𝘀𝗼𝗿𝘀𝗵𝗶𝗽 𝗮𝗽𝗽𝗹𝗶𝗰𝗮𝘁𝗶𝗼𝗻𝘀 𝗶𝗻 𝗖𝗮𝗻𝗮𝗱𝗮

Foreign nationals applying for permanent residence in Canada can ask the Minister to use its discretion to relieve them from requirements under the 𝘐𝘮𝘮𝘪𝘨𝘳𝘢𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘙𝘦𝘧𝘶𝘨𝘦𝘦 𝘗𝘳𝘰𝘵𝘦𝘤𝘵𝘪𝘰𝘯 𝘈𝘤𝘵 (𝘐𝘙𝘗𝘈) because of humanitarian and compassionate factors (𝘐𝘙𝘗𝘈, 𝘴 25(1). The Supreme Court of Canada in 𝘒𝘢𝘯𝘵𝘩𝘢𝘴𝘢𝘮𝘺 𝘷. 𝘊𝘢𝘯𝘢𝘥𝘢 (𝘊𝘪𝘵𝘪𝘻𝘦𝘯𝘴𝘩𝘪𝘱 𝘢𝘯𝘥 𝘐𝘮𝘮𝘪𝘨𝘳𝘢𝘵𝘪𝘰𝘯) 2015 𝘚𝘊𝘊 61, confirmed that the purpose of this humanitarian and compassionate discretion is “to offer equitable relief in circumstances that ‘would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another’”.

Given that the purpose of humanitarian and compassionate discretion is to “mitigate the rigidity of the law in an appropriate case,” there is no limited set of factors that warrant relief. The factors warranting relief will vary depending on the circumstances, but “officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them”.

Paragraph 117(9)(d) of the 𝘐𝘮𝘮𝘪𝘨𝘳𝘢𝘵𝘪𝘰𝘯 𝘢𝘯𝘥 𝘙𝘦𝘧𝘶𝘨𝘦𝘦 𝘗𝘳𝘰𝘵𝘦𝘤𝘵𝘪𝘰𝘯 𝘙𝘦𝘨𝘶𝘭𝘢𝘵𝘪𝘰𝘯𝘴, SOR/2002-227 bars the sponsorship of children who were not medically examined at the time that their parent included them as a non-accompanying dependent in their application for permanent residence. 

In 𝘒𝘢𝘮𝘳𝘢𝘯 𝘷. 𝘊𝘢𝘯𝘢𝘥𝘢 (𝘊𝘪𝘵𝘪𝘻𝘦𝘯𝘴𝘩𝘪𝘱 𝘢𝘯𝘥 𝘐𝘮𝘮𝘪𝘨𝘳𝘢𝘵𝘪𝘰𝘯) 2023 𝘍𝘊 588, the Applicants sought humanitarian relief under subsection 25(1) of the 𝘐𝘙𝘗𝘈, raising both the circumstances surrounding the non-examination of their children at the time of their permanent residence application as well as concerns about the children’s current well-being in their home country.

The Applicants’ sponsorship application and request for humanitarian relief was refused by a Migration Officer. The Applicants challenged this refusal on judicial review. In granting the application for judicial review, the Court found that the Officer’s approach to their discretion to consider humanitarian and compassionate factors was unduly narrow and inconsistent with the Supreme Court of Canada’s guidance in 𝘒𝘢𝘯𝘵𝘩𝘢𝘴𝘢𝘮𝘺. The matter was sent back to be redetermined by a different officer.

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