Perez v. Canada (Citizenship and Immigration), 2022 FC 1238 : H&C Refusal Set Aside Where Officer Applied Wrong Legal Test and Ignored Family Circumstances

The Federal Court reviewed Francisco Montano Perez’s H&C refusal. After living in Canada without status for many years, he returned to Mexico and sought PR based on his deep family relationships with his late Canadian wife’s daughters and grandchildren. The Court found the decision unreasonable because the officer applied the wrong H&C test and failed to engage with central circumstances.

Key Principle

H&C decision-makers must apply the binding majority framework from Kanthasamy, which requires a flexible and equitable assessment of the applicant’s particular circumstances. Applying the stricter dissenting test, or focusing narrowly on hardship and immigration non-compliance without meaningfully weighing compelling family and contextual factors, is unreasonable.

Background

The applicant had been married to a Canadian citizen since 1998. His wife died in 2011 before another sponsorship application could be completed. He remained closely involved with four of her daughters and nine step-grandchildren and viewed those relationships as his strongest establishment in Canada. Because he was not their legal parent, they could not sponsor him.

Court Findings

• Officer Applied the Wrong H&C Test

The officer expressly used the formulation from the dissent in Kanthasamy, asking whether “decent, fair-minded Canadians” would find refusal simply unacceptable. The Court held that this was not the binding legal framework. The majority in Kanthasamy requires a broader, equitable and flexible assessment of humanitarian and compassionate considerations.

• Binding Precedent Could Not Be Ignored Without Explanation

Vavilov requires administrative decision-makers to act consistently with binding judicial precedent. Even if departure from precedent were theoretically possible, the officer gave no explanation for choosing the dissenting test over the Supreme Court majority. The Court found this alone materially undermined the decision.

• Analysis Reflected an Unduly Stringent Hardship Focus

The Minister argued the incorrect test was merely a drafting error. The Court disagreed because the substance of the reasons reflected the same restrictive approach, emphasizing hardship rather than the broader equitable considerations mandated by Kanthasamy.

• Loss of Spousal Sponsorship Opportunity Was Ignored

A central feature of the application was that the applicant permanently lost the opportunity to obtain PR through his Canadian wife because she died after a long illness. This circumstance formed an important part of the H&C request, yet the officer did not mention or assess it at all.

• Immigration Non-Compliance Required Contextual Assessment

The applicant had entered and remained in Canada unlawfully and previously used a false identity. Those facts could properly weigh against him, but the Court stressed that H&C applications often arise precisely because immigration rules were not followed. The officer had to assess the significance of the misconduct in context rather than simply punish non-compliance.

• Extenuating Circumstances Were Not Meaningfully Considered

The applicant had made sustained efforts to regularize his status and had returned to Canada in 2009 to be with his seriously ill wife. The officer relied negatively on his immigration history without meaningfully addressing these contextual and compassionate circumstances. This further undermined the reasonableness of the decision.

Outcome

The Federal Court granted judicial review, set aside the July 2, 2020 H&C refusal, and remitted the matter to a different decision-maker for redetermination. No question was certified.

Case Citation:

Perez v. Canada (Citizenship and Immigration), 2022 FC 1238 (CanLII)