Gonzalo v. Canada (Citizenship and Immigration), 2015 FC 526 : H&C Refusal Overturned Because Officer Failed to Consider a Possible Pathway to Family Reunification

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

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