Ben Hariz v. Canada (Citizenship and Immigration), 2024 FC 512 : Federal Court Upholds Refusal of Humanitarian and Compassionate Relief Despite Best Interests of Canadian Child for Serious Criminality

The Federal Court dismissed an application for judicial review challenging the refusal of humanitarian and compassionate (H&C) relief under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA). The applicant, a Tunisian citizen, had been deported from Canada after being found inadmissible for serious criminality and later sought an exemption from his inadmissibility to allow his Canadian citizen spouse to sponsor him for permanent residence. He argued that the Minister’s Delegate failed to properly assess the best interests of his Canadian citizen daughter, who would allegedly be separated from one of her parents if the application were refused. The Court held that the Delegate reasonably concluded the child’s best interests were served by remaining in France with both parents and that the family’s circumstances resulted largely from choices knowingly made after the applicant’s removal from Canada.

Key Principle

When assessing an H&C application under subsection 25(1) of the IRPA, decision-makers must give meaningful consideration to the best interests of any child directly affected by the decision. However, the child’s best interests do not automatically outweigh all other considerations. Where the circumstances affecting the child arise primarily from informed decisions made by the parents, an officer may reasonably conclude that H&C relief is not warranted. The Court will not interfere where the decision reflects a balanced and intelligible assessment of the relevant humanitarian factors.

Background

The applicant entered Canada in 2008 but remained beyond his authorized stay and was subsequently convicted of several criminal offences. Following a finding of serious criminality, he was removed from Canada in 2019 and relocated to France. There, he married a dual French-Canadian citizen in 2021, and the couple’s daughter, also a dual citizen, was born shortly thereafter. The applicant later requested H&C relief to overcome his inadmissibility so that he could eventually be sponsored for permanent residence in Canada. He submitted that his wife experienced significant hardship living outside Canada and that refusing the application would separate his daughter from one of her parents if the family returned to Canada. The Minister’s Delegate acknowledged these submissions but concluded that the family was well established in France, where the applicant held legal status and had successfully integrated, and that nothing prevented them from remaining there together.

Court Findings

• Best Interests of the Child Were Reasonably Assessed

The Court held that the Delegate properly identified the child’s best interests as remaining in France with both parents. The daughter had been born in France, had lived there her entire life, and there was no evidence that remaining in France would adversely affect her well-being. The Court agreed that the alleged separation from a parent would occur only if the parents voluntarily chose to relocate to Canada without the applicant.

• Parents’ Choices Were a Relevant Consideration

The Court emphasized that the applicant’s inadmissibility was known before the marriage and before the birth of the child. The family’s current circumstances resulted primarily from informed decisions made by the parents rather than unforeseen hardship. While officers must consider the interests of affected children, parents also bear responsibility for making decisions that promote those interests.

• The Refusal Was Reasonable

The Court concluded that the Minister’s Delegate considered all relevant humanitarian factors, including the applicant’s family circumstances and the best interests of the child, before determining that they did not justify exempting the applicant from the consequences of his serious criminality. The decision was transparent, intelligible, and consistent with the principles governing H&C relief under Kanthasamy.

 Outcome

The Federal Court dismissed the application for judicial review, finding that the Minister’s Delegate reasonably refused humanitarian and compassionate relief. The decision confirms that while the best interests of a child are an important consideration in H&C applications, they are not determinative where the evidence demonstrates that the child’s welfare is protected and the family’s hardship results primarily from choices knowingly made by the parents.

Case Citation:
Ben Hariz v. Canada (Citizenship and Immigration), 2024 FC 512 (CanLII)