Simic v. Canada (Citizenship and Immigration), 2022 FC 719 : H&C Refusal Set Aside Where Officer Failed to Engage With Discrimination Evidence and Central Arguments

The Federal Court reviewed Anja Simic’s refusal of permanent residence on humanitarian and compassionate grounds. The officer acknowledged her establishment in Canada and family connections but refused relief after finding insufficient hardship if she returned to Serbia or Croatia. The Court found the decision unreasonable because the officer failed to meaningfully engage with the central basis of her H&C application: her long-standing experience of discrimination and her inability to find acceptance in her home country.

Key Principle

An H&C decision must meaningfully address the central issues and arguments advanced by an applicant. An officer cannot simply acknowledge evidence of hardship or establishment while failing to analyze the core reasons why humanitarian relief is requested.

Background

The applicant was a citizen of Serbia and Croatia who had lived in Canada since 2017. She explained that she experienced discrimination in Serbia because of her Croatian accent and her family’s background as ethnic Serbs from Croatia. She relied on evidence concerning discrimination against persons of Croatian origin in Serbia and argued that Canada was the first place where she felt accepted.

Her sister, brother-in-law, and extended family members lived in Canada. Many family members and friends provided letters supporting her request to remain permanently.

Court Findings

• Officer Failed to Address the Central Theme of the H&C Application

The Court identified the central theme of the applicant’s H&C request as her experience of discrimination in Serbia and her desire to remain in the one place where she felt accepted. The officer acknowledged some establishment and hardship factors but did not meaningfully analyze this core argument.

• Discrimination Analysis Was Based on Unsupported Assumptions

The officer concluded that the applicant was unlikely to continue being viewed as an outsider because she was born, raised, and educated in Serbia. The officer suggested that she would eventually assimilate to a Serbian accent. The Court found this unreasonable because she had lived in Serbia for more than 20 years and had not assimilated during that period.

• Applicant’s Family History Was Misunderstood

The officer also suggested that the applicant’s parents had assimilated to a Croatian accent despite their Serbian background. The Court found this inaccurate because the applicant’s parents were born and raised in Croatia and had moved to Serbia as refugees. Like their daughter, they continued to be viewed as outsiders.

• Visitor Status Was Not a Substitute for H&C Relief

The officer noted that the applicant could continue visiting Canada using her valid temporary resident visa. The Court found this reasoning failed to understand the purpose of an H&C application. The issue was not whether the applicant could visit family, but whether she should be granted permanent residence because of her circumstances.

• Permanent Residence Concerns Were Ignored

The Court relied on the principle from Paul v Canada that H&C relief is not about facilitating temporary visits but addressing circumstances where permanent residence is sought because ordinary immigration pathways may not provide a realistic solution. The officer did not grapple with this distinction.

• Establishment Evidence Was Not Fully Considered

The applicant had extensive family connections in Canada, including a sister, brother-in-law, extended family, and community support. The officer recognized these factors but did not adequately weigh their importance alongside the applicant’s evidence that Canada represented the first place where she experienced belonging and acceptance.

Visitor Status Extension Judicial Review Was Moot

The applicant also challenged a refusal to extend her temporary visitor status. The Court dismissed that judicial review because the issue had become moot after the H&C decision was made and the requested extension period had expired. The Court found no practical benefit in deciding that issue.

Outcome

The Federal Court granted judicial review of the H&C refusal, set aside the decision, and remitted the matter to a different immigration officer for redetermination. The judicial review concerning visitor status was dismissed as moot. No question was certified.

Case Citation:

Simic v. Canada (Citizenship and Immigration), 2022 FC 719 (CanLII)