Not Our Case: Humanitarian Application Refusal at Federal Court
When an officer uses a deportation moratorium against the applicant
Humanitarian and compassionate (H&C) immigration applications are very much in the spotlight today. Against the backdrop of wars and crises around the world, demand for this pathway has surged, and approval rates have risen from roughly 15% to 70% in just the past two years.
But refusals still happen. This article examines one such refusal, based on a recent Federal Court decision where the applicant sought judicial review.
A family that had arrived in Canada from Ukraine under the CUAET program held valid temporary status through 2025. They filed a humanitarian and compassionate application for permanent residence – and were refused. Believing the decision was unreasonable, they turned to the Federal Court.
The Standard of Review
One of the most important standards for evaluating administrative decisions – including decisions on immigration applications – is reasonableness.
In Canadian jurisprudence, "reasonableness" means more than simply being rational. It encompasses adequacy, justifiability, and coherence with the facts and context of the case. A reasonable decision must be grounded in sound reasons and must make sense in light of the evidence before the decision-maker. When a court reviews an administrative decision for reasonableness, it asks whether the decision falls within a range of possible, acceptable outcomes that are defensible on the facts and the law.
Grounds for Review
The court's decision reveals that the applicant raised several grounds for arguing the refusal was unreasonable, but the court needed only one to agree.
The officer's reasons stated that positive weight could not be given to the applicant's arguments about the best interests of the children, because refusing the humanitarian application would not result in the children being immediately returned to a war zone (Ukraine). The officer pointed to the existing administrative deferral of removals (ADR) – a government-imposed moratorium on deportations to Ukraine – as an effective barrier to removal.
In the officer's reasoning, while removing the children to Ukraine would indeed be contrary to their best interests, the ADR already prevented that from happening. The humanitarian application, therefore, did not need to carry the additional positive weight of the children's interests – and the officer assigned this factor neutral weight instead.
The court noted a critical distinction: an administrative deferral of removals does not automatically lead to approval of humanitarian applications, but it equally cannot serve as a reason to refuse them. The court specifically observed that the officer's own remark – "I must emphasize the ADR is not viewed as a negative factor in this application" – contradicted what had actually been done: the weight assigned to the children's best interests was shifted from positive to neutral, which effectively was a negative impact on the application.
The Verdict
Based on the argument described above, the court concluded that the refusal was indeed unreasonable.
The refusal was set aside, the application was returned for processing, and it will be reconsidered by a different officer.
Commentary
What Does the Court's Decision Mean?
As with any judicial review of a refusal, a court ruling in the applicant's favour does not mean the immigration application is approved. The court does not have the authority to grant permanent residence or approve a humanitarian application. What the court can do is set aside the refusal, declare it unreasonable, and direct that the application be returned for reconsideration by a different officer.
The Basis for Review
In this case, the applicant was fortunate in one important respect: the officer made a substantial and clearly identifiable error by using the existence of an active deportation moratorium as a factor that weakened the humanitarian application. Had the officer refused the application without including this reasoning in their notes – and without making other errors – the outcome of the judicial review could have been different.
War as a Basis for Refugee Claims
The court's decision contains an important observation: it confirms that the war in Ukraine constitutes what is known as a "generalized risk" – a conclusion further supported by the existence of the administrative deferral of removals. This characterization (meaning a general risk affecting the entire civilian population) automatically means that the war in Ukraine cannot, on its own, serve as a basis for a refugee claim. Refugee protection requires the absence of a generalized risk – the claimant must face a personalized risk that sets them apart from the general population. This position can be considered authoritative, and the court cited existing legal precedents in support.
De Facto Family Members
Those who read the full court decision may have noticed an intriguing detail: the introductory section describes the applicants as a family of two adults and two children, yet the case heading lists five individuals. This is almost certainly not an error. It most likely means the application included a so-called de facto family member – someone who is not recognized as a family member under the law but who is, in practical terms, part of the family unit. In this case, it may have been a parent of one of the adult family members.
The concept of a de facto family member can be a valuable tool in immigration applications. If you believe it may apply to your situation, we encourage you to reach out.
Timeline
Based on the information available in the court decision, the approximate chronology of events was as follows:
- 2022 – family arrives in Canada under the CUAET program
- Early 2023 – humanitarian and compassionate application submitted
- August 2023 – application refused
- August – September 2023 – application for judicial review filed
- August 16, 2024 – Federal Court rules in the applicant's favour
Lawpoint Immigration represents clients in Federal Court judicial reviews of humanitarian application refusals and other immigration decisions. If you believe your H&C application was refused unreasonably, we can evaluate your case and advise on the available options.