Humanitarian and compassionate considerations for immigrating to Canada

Canada’s immigration system, by its very nature, is forced to reconcile many differing values and aspirations.

For example, the system attempts to mediate between providing both consistency and certainty on one (metaphorical) hand, but also flexibility and fairness on the other.

The Immigration and Refugee Protection Act (IRPA) is the main statute governing immigration to Canada. IRPA reflects this balancing effort. When seeking immigration status in Canada, section 25(1) of the IRPA allows persons who do not meet one or more of the application requirements set forth in the Act to request that the government consider waving the relevant requirements on humanitarian and compassionate (H&C) grounds. The Minister of Citizenship and Immigration may also, himself, request such consideration.

When an H&C request is made by a foreign national inside Canada, the Canadian immigration system is obligated to consider it. H&C requests can also be made by foreign nationals outside of Canada; however, there is no legal obligation to consider them.

To be clear, H&C consideration is just that: it is a request for an exception to usual application requirements, not an automatic grant of a waiver.

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Canadian legislation and jurisprudence have a longstanding and well-developed framework for evaluating such requests, which has evolved considerably over time.

This body of work allows immigration officers and other decision-makers to grant exemptions to application requirements in many different circumstances, taking into account the facts specific to a given case (e.g. ties to Canada, medical, financial, and admissibility issues, the best interests of children involved, etc.) in a consistent manner.

Sometimes, however, a case emerges which, by its nature is very unusual and challenging. The unfortunate situation of Ms. Elena Starach, on which the Federal Court ruled this past November, is such a case.

Ms. Starach is in her early sixties. Unfortunately, she has long suffered the ravages of mental illness - in her case, schizophrenia. Ms. Starach has spent many of the past years homeless in Toronto; she is now a ward of the Ontario Public Guardian and Trustee.

Because of her illness, Ms. Starach is unable to recall many basic details of her biography, such as where she was born. Compounding this imbroglio, neither Immigration, Refugees, and Citizenship Canada (IRCC) or the Canadian Border Services Agency (CBSA) apparently have any immigration records relating to Ms. Starach.

Given her inability to provide relevant background information and documentation, counsel for Ms. Starach accordingly requested that her application for permanent residence receive consideration on H&&C grounds. Factors included: Ms. Starach’s mental illness; that Ms. Starach is apparently stateless; and that lack of permanent status in Canada could prejudice Ms. Starach’s receipt of government housing and social services.

The reviewing officer acknowledged Ms. Starach’s situation was difficult but nevertheless rejected the H&C grounds application. Counsel for Ms. Starach sought and obtained leave to pursue a Judicial Review at the Federal Court of Canada to challenge this decision.

The judgment of the Court was, simply put, scathing. It held that the Officer “entirely failed to engage with [Ms. Starach’s H&C] request” and instead engaged in a “circular and unintelligible analysis” of her situation. The Court concluded that the Officer’s outright dismissal of Ms. Starach’s application on the apparent ground that the Officer was not satisfied Ms. Starach’s was in fact stateless, was, itself, unintelligible and without explanation. The judgment also drew from a previous case, Abeleira v Canada (M.C.I.), 2017 FC 1008 [Abeleira], which like that of Ms. Starach, involved a person who was stateless, without identification, and not known to have ever been a citizen of another country at any point. The ruling in this Abeleira case emphasized that the immigration officer was required to consider the global deleterious impact of a refusal of H&C permanent residency to such a person.

Accordingly, the Federal Court accepted Ms. Starach’s appeal and set aside the initial officer’s decision, remanding it to another officer for redetermination.

Ms. Starach’s case, while most unfortunate, also illustrates some of the strengths of the Canadian immigration system. There is room for individuals to seek humanitarian and compassionate consideration for their immigration applications when they do not meet all application requirements. The Federal Court demands that Officer’s determinations be reasonable, intelligible, and in line with existing jurisprudence. If an application is rejected, applicants may still be able to seek recourse at the Federal Court, as Ms. Starach successfully did.

Ms. Starach may have tragically forgotten herself, but the Canadian immigration system has not forgotten her.

If you are interested in learning more about this case, Starach v. Canada (M.C.I.), 2020 FC 917, you can access it at https://canlii.ca/t/jb494

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