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By immlawyer

I have had occasion to submit a number of "Humanitarian and Compassionate applications" under s.25 of the Immigration and Refugee Protection Act. The following excerpt from a recent Federal Court decision points out a number of important issues: 1. that the applicant has the onus to provide the documentation; and 2. that the decision is a discretionary one which mandates respect from the reviewing Court; and finally 3. that the decision doesn't actually take any right away from the applicant (and -- my reading -- therefore a refusal to exercise discretion breaches no significant rights):

[26] In an application based on humanitarian and compassionate considerations, the onus is always on the applicants to provide the documentation upon which the determination will be based (Zambrano v. Canada (Minister of Citizenship and Immigration), 2008 FC 481 at paragraph 39 (Zambrano); Melchor v. Canada (Minister of Citizenship and Immigration), 2004 FC 1327 at paragraph 13 (Melchor); Arumugum v. Canada (Minister of Citizenship and Immigration), 2001 FCT 985 at paragraph 16). Again, it has been reiterated by this Court numerous times that the humanitarian and compassionate decision making process is a highly discretionary one (Quiroa v. Canada (Minister of Citizenship and Immigration), 2007 FC 495 at paragraph 19; Kawtharani v. Canada (Minister of Citizenship and Immigration), 2006 FC 162 at paragraph 15; Jasim v. Canada (Minister of Citizenship and Immigration), 2003 FC 1017 at paragraph 11 (Jasim)). Furthermore, the decision of an officer not to grant an exemption under subsection 25(1) of the Act takes no right away from an applicant, who may still apply for landing from outside of Canada, which is the usual requirement under Canadian Immigration legislation (Jasim, above, at paragraph 11).

Bichari v. Canada (Citizenship and Immigration) (2010 FC 127).

Applicant's hoping for the Federal Court to be a safety net for adverse decisions by H&C officers may be disappointed. Given that 'reasonableness' is the appropriate standard of review for such decisions, the reviewing Court will be concerned with whether the decision/reasoning is justifiable, transparent and intelligible. The reviewing court will not reweigh the evidence.

Full post as published by Canadian Immigration Blawg on February 11, 2010 (boomark / email).