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IMMIGRANTS - Application for immigrant visa - Humanitarian and compassionate considerations

Wednesday, January 13, 2021 @ 6:05 AM  

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Appeal by Subramaniam from a decision dismissing his application for judicial review of an immigration officer’s decision refusing to process the appellant’s application for permanent residence on humanitarian and compassionate grounds. The appellant was found inadmissible because he engaged in people smuggling. Several years later, invoking a recent shift in the legal test for people smuggling, he filed the application for permanent residence on humanitarian and compassionate grounds. The officer held that the prior inadmissibility finding precluded the exercise of the discretionary relief under s. 25(1) of the Immigration and Refugee Protection Act. The appellant argued that s. 25(1) did not constitute an absolute bar to considering applications made by those who had previously been found inadmissible based on ss. 34, 35 or 37 of the Act. Alternatively, he argued that the Minister retained residual discretion when presented with applications from foreign nationals in Canada, who had previously been found inadmissible under the same provisions.

HELD: Appeal dismissed. Section 25(1) barred an applicant who has been declared inadmissible under s. 37 from humanitarian and compassionate consideration. The fact that inadmissibility determinations were conclusive and final unless set aside by the Federal Court entailed a lack of authority to reverse such findings for both pre-removal officers and humanitarian and compassionate officers. A finding that an officer could exercise discretion under s. 25(1) to revisit a tribunal’s inadmissibility determination on ss. 34, 35 or 37 when determining whether the statutory bar to s. 25 applied, would render that statutory bar meaningless and contrary to Parliament’s intent. The current s. 25(1) now prevented an inadmissible person from availing himself or herself of humanitarian and compassionate consideration where their inadmissibility status is founded on ss. 34, 35 or 37. Recent jurisprudential developments could be reviewed by an officer in the course of the humanitarian and compassionate analysis as one of the many factors that could be weighed against an applicant’s inadmissibility, but only if the humanitarian process was available to the applicant.

Subramaniam v. Canada (Minister of Citizenship and Immigration), [2020] F.C.J. No. 1125, Federal Court of Appeal, J. Gauthier, Y. de Montigny and G.R. Locke JJ.A., November 23, 2020. Digest No. TLD-January112021006