A New Chapter for H&C Applications in Canada: Establishment as a Determinative Factor

On December 23, 2024, the Federal Court issued a groundbreaking decision in Kapoor v. Minister of Citizenship and Immigration (2024 FC 2095) that reshapes how Humanitarian and Compassionate (H&C) applications are assessed in Canada. This decision is particularly significant for individuals who have built strong ties in Canada but may struggle to demonstrate extreme hardship in returning to their home country. Justice Battista’s ruling challenges longstanding principles and expands the possibilities for relief under H&C provisions.

The Foundation of H&C Applications

H&C applications, governed by section 25(1) of the Immigration and Refugee Protection Act (IRPA), provide a pathway to permanent residence for individuals who may not qualify under traditional immigration categories. These applications are intended to address unique circumstances by allowing decision-makers to consider factors such as:

• Establishment in Canada.

• Family ties in Canada.

• Risk and hardship in returning to the home country.

• Adverse country conditions.

For years, Federal Court jurisprudence has maintained that establishment in Canada cannot be determinative in an H&C application. Applicants needed to demonstrate unusual, undeserved, or disproportionate hardship to succeed. This placed a significant burden on individuals with strong ties to Canada but weak risk-based claims. Justice Battista’s decision directly challenges this limitation.

The Case: Kapoor v. Minister of Citizenship and Immigration

Overview:

Kapoor, an Indian citizen, entered Canada in 2019 and applied for refugee protection, citing fear of his abusive father. His claim was denied at multiple levels, including the Refugee Protection Division (RPD), Refugee Appeal Division (RAD), and through a Pre-Removal Risk Assessment (PRRA). Following these refusals, Kapoor filed an H&C application, focusing on his significant establishment in Canada and the challenges of relocating to unfamiliar parts of India identified as potential Internal Flight Alternatives (IFAs).

The Officer’s Decision:

The Immigration Officer rejected Kapoor’s H&C application, assigning “moderate” or “some” weight to his establishment factors, including:

• His employment history and rising income.

• Long-term residence in Canada.

• Close family ties (mother and sisters) in Canada, who were recognized refugees.

The Officer explicitly stated that establishment alone cannot determine the outcome of an H&C application and relied heavily on the findings of the PRRA to conclude that Kapoor could safely relocate within India.

The Federal Court’s Ruling:

Justice Battista quashed the Officer’s decision, finding it unreasonable for several reasons:

1. Failure to Justify Weight Assignments: The Officer provided no rationale for assigning limited weight to compelling evidence of Kapoor’s establishment.

2. Fettering of Discretion: The Officer unreasonably concluded that establishment evidence could not be determinative, a principle Justice Battista rejected as inconsistent with IRPA and Supreme Court jurisprudence.

3. Unresponsiveness to Hardship Submissions: The Officer failed to adequately consider Kapoor’s argument that living in IFAs would result in undue hardship due to lack of connections or support.

The Significance of Justice Battista’s Departure from Established Jurisprudence

Justice Battista’s ruling represents a major shift in the legal landscape for H&C applications, particularly by challenging the long-held principle that establishment evidence cannot, by itself, justify relief.

1. Historical Context: The Preclusion of Establishment as Determinative

Previous Federal Court decisions, such as Irimie v. Canada (2000), held that establishment evidence could not outweigh all other factors in an H&C application. The rationale was twofold:

• Preventing misuse of the H&C process: Courts feared that granting relief based solely on establishment would incentivize individuals to remain in Canada unlawfully and later apply for H&C relief.

• Preserving hardship as a central requirement: The Court emphasized that H&C applications were intended to address unusual, undeserved, or disproportionate hardship, not solely reward contributions to Canadian society.

These principles became entrenched in Federal Court jurisprudence, even after the Supreme Court’s landmark decision in Kanthasamy v. Canada (2015), which broadened the discretion afforded to decision-makers in H&C cases.

2. Why Justice Battista’s Decision Matters

Justice Battista’s ruling boldly departs from this historical framework, arguing that:

• Establishment Can Be Determinative: The preclusion of establishment as a determinative factor is inconsistent with the broad discretion granted by IRPA. Decision-makers should have the flexibility to approve applications based on compelling establishment evidence alone, depending on the circumstances.

• Policy Concerns Are Outdated: Justice Battista criticized the rationale in Irimie, particularly its concern about incentivizing refugee claims. He noted that these concerns are no longer aligned with the humanitarian objectives of IRPA, which prioritize compassion and flexibility.

• Focus on Individual Circumstances: The decision emphasizes that H&C applications should be assessed on a case-by-case basis, without rigid adherence to outdated principles.

Practical Implications for H&C Applicants

This decision has far-reaching implications for individuals with strong establishment in Canada but weak evidence of hardship or risk in their home countries.

1. Who Benefits?

• Long-Term Residents: Individuals who have lived in Canada for several years, built careers, and integrated into their communities.

• Economic Contributors: Applicants with strong employment histories, rising incomes, and financial independence.

• Family-Oriented Individuals: Those with deep family ties in Canada but limited support networks abroad.

• Students and Workers: Temporary residents who have established roots in Canada and contributed to society over time.

2. How to Strengthen an H&C Application

Justice Battista’s decision highlights the importance of robust documentation for establishment factors, such as:

• Employment records (pay stubs, tax filings, letters from employers).

• Community involvement (volunteer activities, letters of support from community leaders).

• Proof of residence (leases, utility bills).

• Statements from family members and evidence of their inability to visit or relocate.

3. Reduced Burden for Hardship Evidence

While hardship remains relevant, applicants with weaker claims in this area can now focus more heavily on establishing their contributions to Canadian society.

A Shift Toward Compassion and Flexibility

2024 FC 2095 reflects a growing recognition that H&C applications are intended to be flexible, compassionate, and responsive to unique circumstances. By affirming that establishment evidence can be determinative, Justice Battista’s decision brings the humanitarian objectives of IRPA into sharper focus and offers new hope to applicants who have contributed significantly to Canada.

For those navigating the challenges of H&C applications, this decision underscores the importance of presenting a comprehensive, well-documented case. At Blacksy Immigration, we specialize in advocating for our clients’ unique circumstances, ensuring that their voices are heard and their contributions recognized.

If you believe this decision could impact your case, reach out to us today. Together, we’ll explore how your establishment in Canada can pave the way to a brighter future.

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About the Author

I’m Ahmet Faruk Ocak, a Canadian immigration lawyer and the founder of Blacksy Immigration Law Firm 🌊. 

At Blacksy, we specialize in providing honest, straightforward, and tailored immigration solutions to individuals and businesses worldwide. Our brand promise is simple: no unnecessary fuss, no false hopes, and no empty promises—just realistic, reliable guidance to help you achieve your immigration goals.

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