Li v. Canada (Citizenship and Immigration), 2020 FC 848 : Humanitarian and Compassionate Application, Establishment, Best Interests of Children, Global Assessment

Mr. Li, a Chinese citizen, had lived in Canada since 2010. He married in Canada and had three Canadian-born children. He applied for permanent residence on humanitarian and compassionate grounds under section 25(1) of IRPA, relying on:

• his establishment in Canada;
• the best interests of his children;
• adverse conditions in China; and
• consequences relating to China’s family planning policy.

The H&C application was refused. The Federal Court found the decision unreasonable.

Establishment in Canada

Mr. Li had worked as a chef since 2011 and co-owned a successful restaurant business that had expanded to two locations, employed more than a dozen people, and planned a third location.

The Officer accepted that Mr. Li had stable employment, sound financial management, and had contributed to the Canadian economy, but concluded he had not shown an “exceptional degree of establishment.”

The Court found this analysis unreasonable.

The Officer focused heavily on whether the restaurants would close if Mr. Li left Canada and assumed that other employees could continue operating them. This ignored evidence concerning Mr. Li’s role as an investor, manager and operator.

The Officer also overlooked evidence of other Canadian ties, including his brother living in Canada and letters of support from community members.

The Court also criticized the Officer for using Mr. Li’s success in Canada against him by reasoning that, because he had succeeded as an entrepreneur in Canada, he could re-establish himself in China. Establishment in Canada should not simply be transformed into evidence that removal will cause little hardship.

Best Interests of the Children

The Court reaffirmed that the best interests of children directly affected are a “singularly significant focus and perspective” in an H&C assessment.

The Officer mainly considered whether the children would suffer specific hardship if they moved to China. This was insufficient.

A proper BIOC analysis should consider matters such as:

• the children’s establishment in Canada;
• their limited connections to China;
• their age and dependency;
• medical and educational interests; and
• the effect of disrupting the family’s established life in Canada.

The Court emphasized that a hardship analysis cannot replace a proper BIOC analysis.

Global H&C Assessment

Under Kanthasamy, H&C factors must not be assessed in isolated compartments. Officers must conduct a global assessment of all relevant circumstances.

The Officer summarized separate conclusions on establishment, country conditions and BIOC, but did not meaningfully assess how those factors operated cumulatively.

The Court held that simply finding each individual factor insufficient does not eliminate the obligation to consider whether the combined circumstances justify H&C relief.

Key Principles

Li is useful for the propositions that:

• establishment must be assessed fairly and cannot be turned against the applicant without explanation;
• officers must engage with material evidence of family, community and economic establishment;
• BIOC requires more than asking whether children will experience hardship;
• H&C factors must be assessed globally and cumulatively; and
• reasons must demonstrate a rational and transparent connection between the evidence and the conclusion.

Outcome: The refusal was set aside and the matter was remitted to a different officer for redetermination.

Case Citation:

Li v. Canada (Citizenship and Immigration), 2020 FC 848 (CanLII)