Asu v. Canada (Citizenship and Immigration), 2022 FC 661 : H&C Refusal Set Aside Where Officer Applied Improper “Exceptional Establishment” Threshold

The Federal Court reviewed Gilbert Obi Asu’s refusal of permanent residence on humanitarian and compassionate grounds. The officer recognized his employment, education, financial independence, and community support but concluded that his establishment was not exceptional enough to justify relief. The Court found the decision unreasonable because the officer applied an incorrect legal threshold for H&C relief.

Key Principle

Although H&C relief is exceptional in the sense that it provides discretion outside the ordinary immigration framework, an applicant is not required to demonstrate exceptional circumstances or an extraordinary level of establishment. The proper question is whether the applicant’s circumstances, considered as a whole, justify relief on humanitarian and compassionate grounds.

Background

The applicant was a citizen of Cameroon who had lived in Canada since 2012. After an unsuccessful refugee claim and PRRA application, he submitted an H&C application based mainly on his establishment in Canada and hardship upon return. He had obtained education, maintained employment, filed tax returns, demonstrated financial independence, and received significant support from friends, roommates, and community members.

Court Findings

• Officer Positively Considered Establishment

The officer acknowledged multiple positive establishment factors, including employment, education, financial self-sufficiency, community support, volunteerism, and evidence of good character. The establishment factor was given positive consideration throughout the decision.

• “Exceptional Establishment” Was Used as an Improper Requirement

The officer ultimately stated that the applicant’s establishment was positive but was not “an exceptional level of establishment” sufficient to justify a waiver of regulatory requirements. The Court found this wording demonstrated a misunderstanding of the legal test.

• H&C Relief Does Not Require Exceptional Circumstances

The Court distinguished between saying that H&C relief itself is exceptional and requiring applicants to prove exceptional circumstances. The latter imposes a higher threshold than required by section 25(1) of IRPA. An officer must assess whether the applicant’s particular circumstances warrant relief, not whether they are extraordinary compared with other applicants.

• Establishment Analysis Was Therefore Deficient

Because the officer applied an incorrect threshold, the Court could not determine whether the establishment evidence would have been weighed differently under the proper legal framework. The error affected the overall balancing exercise because establishment was one of the central compassionate factors.

• Comparison With Other Applicants Was Misplaced

The officer described the applicant’s establishment as similar to what would normally be expected from newcomers. The Court noted that describing establishment as ordinary is not automatically unreasonable. The problem arises when ordinary establishment is treated as incapable of supporting H&C relief unless it reaches an exceptional level.

• Proper H&C Question Was Not Asked

The Court relied on the principle that the question in an H&C assessment is whether the applicant’s circumstances would cause a reasonable person in a civilized community to desire relief from the hardship caused by the strict application of immigration law. The officer’s approach shifted the analysis away from that question.

• Other Grounds Did Not Need to Be Determined

The applicant also challenged the hardship and best interests of the child analysis. However, because the establishment error was determinative, the Court did not need to decide those additional arguments, although it noted the applicant had raised significant concerns regarding the hardship assessment.

Outcome

The Federal Court granted judicial review, set aside the H&C refusal, and remitted the application to a new officer for redetermination. No question for certification was raised or certified.

Case Citation:

Asu v. Canada (Citizenship and Immigration), 2022 FC 661 (CanLII)