Saleh v. Canada (Citizenship and Immigration), 2024 FC 135 : H&C Refusal Set Aside Where Officer Used Removal Deferral to Minimize Hardship

The Federal Court reviewed the refusal of Abdulsalam Saleh Hussein Saleh’s inland H&C application for PR. The officer gave little weight to adverse country conditions because an administrative deferral of removals temporarily protected the applicant from removal. The Court granted judicial review because the officer failed to consider that, without H&C relief, the applicant would ordinarily need to leave Canada and apply for PR from abroad.

Key Principle

An administrative deferral of removals does not eliminate the hardship relevant to an inland H&C application. Although the applicant may not face immediate removal, the officer must consider that the applicant ordinarily must leave Canada and apply for PR from abroad unless granted an exemption. A removal deferral is relevant but cannot be used narrowly to minimize serious country conditions without examining the practical consequences of the statutory application process.

Background

The applicant sought PR from within Canada on H&C grounds. His country of citizenship was subject to an administrative deferral of removals because conditions there posed a generalized risk to the civilian population.

The officer acknowledged the adverse conditions but assigned them little weight. The officer reasoned that the deferral meant the applicant would not presently be required to return and therefore would not immediately face the described hardship.

Court Findings

• Removal Deferral Was Applied Too Narrowly

The officer treated the deferral as effectively protecting the applicant from the adverse country conditions. This overlooked that the H&C application sought an exemption from the ordinary requirement to leave Canada and submit a PR application from abroad.

• Applicant Could Still Be Required to Apply Abroad

Although the deferral prevented immediate enforced removal, it did not grant the applicant permanent status or an inland pathway to PR. Without an H&C exemption, he could be required to leave Canada and apply from the very country whose dangerous conditions formed part of his hardship claim.

• Country Conditions Could Not Be Given Little Weight Automatically

The existence of a removal deferral confirmed that the Minister recognized a generalized risk to the civilian population. While that fact did not guarantee H&C relief, it remained an important consideration requiring substantive assessment rather than being treated as a reason to discount hardship.

• Hardship Inquiry Required Practical Analysis

The officer stated that the decision concerned the hardship the applicant would experience if required to leave Canada to apply abroad. However, the reasons did not actually assess what applying from abroad would mean in light of the recognized conditions and the uncertain duration of processing.

• Applicant Did Not Need to Expressly Raise the Legal Consequence

The Minister argued that the applicant had not specifically submitted that he would need to apply from abroad. The Court rejected this argument because the officer introduced and relied on the deferral, while the need for an exemption from applying abroad was inherent in the H&C application itself.

• Deferral Was Relevant but Not Determinative

The Court confirmed that nationals of countries subject to removal deferrals are not automatically entitled to H&C relief. However, the officer was required to fully weigh the deferral’s significance and could not use it solely to conclude that the applicant’s hardship was presently mitigated.

Outcome

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

Case Citation:

Saleh v. Canada (Citizenship and Immigration), 2024 FC 135 (CanLII)