The Federal Court reviewed the refusal of a humanitarian and
compassionate application made by a Filipino temporary foreign worker whose
permanent residence application had previously failed because his youngest
daughter was medically inadmissible.
Because the daughter’s medical inadmissibility also made the
other family members inadmissible, the applicant sought H&C relief as a
possible way to become a permanent resident and eventually reunite with his
family in Canada.
The Court overturned the refusal because the immigration
officer failed to properly appreciate this potential pathway to family
reunification.
Key Principle
When an H&C application may provide a realistic pathway
for an applicant to overcome inadmissibility and later reunite with family
members in Canada, the officer must meaningfully consider that possibility.
An officer cannot simply state that approving the H&C
application would not immediately give permanent residence to the applicant’s
family members if approval could nevertheless create an important future
pathway to family reunification.
Background
The applicant was a citizen of the Philippines who came to
Canada as a temporary foreign worker in 2007 and worked for the same employer
in Alberta.
His employer successfully nominated him under the Alberta
Immigrant Nominee Program.
However, his permanent residence application was refused
because his youngest daughter, who was deaf, was found medically inadmissible
due to anticipated excessive demand on health or social services.
Under the legislation then applicable, her inadmissibility
also rendered the remaining family members inadmissible.
The applicant then submitted an H&C application based on
his establishment in Canada, the best interests of his children, and the
financial hardship his family would experience if he returned to the
Philippines.
The officer refused the application.
Court Findings
The Federal Court upheld several parts of the officer’s
analysis.
The Court found it reasonable for the officer to conclude
that general economic difficulties in the Philippines were insufficient without
evidence showing how the applicant would be personally affected.
It also upheld the officer’s assessment of the children’s
education, the youngest daughter’s medical treatment, and the family’s
dependence on the applicant’s financial support.
However, the Court identified a significant error concerning family reunification.
The officer stated that approving the applicant’s H&C
request would not itself make his medically inadmissible daughter admissible or
automatically grant permanent residence to the rest of the family.
The Court agreed that this was technically true, but found
that the analysis stopped too early.
If the applicant obtained H&C relief and became a
permanent resident, he could potentially sponsor his spouse and children as
members of the family class. The legislation also provided an exception from
excessive-demand medical inadmissibility for certain sponsored spouses,
common-law partners and children.
The Court therefore found that H&C relief offered the
applicant a realistic potential pathway to becoming a permanent resident and
later reuniting with his family in Canada.
That possibility was important and should have been
considered by the officer.
The Court also found the decision internally inconsistent
because the officer repeatedly suggested that the applicant could simply return
to the Philippines and apply for permanent residence through the normal
process.
In reality, the medical inadmissibility of his daughter also
made him inadmissible, meaning the normal permanent residence route was not
realistically available to him.
Outcome
The Federal Court allowed the application for judicial
review and returned the H&C application to a different immigration
officer for reconsideration.
The Court held that the officer had to consider the
possibility that H&C relief could provide the applicant with a pathway to
permanent residence and, ultimately, family reunification in Canada.
Case Citation:
Gonzalo v. Canada (Citizenship and Immigration), 2015 FC 526 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
