Updated: Jan 12, 2022
On January 4, 2022, the Federal Court of Canada granted a judicial review for redetermination to an applicant who failed to meet the permanent residency (PR) requirements under section 28 of the Immigration and Refugee Protection Act (IRPA). It requires applicants to physically remain in Canada for at least 730 days every five years.
Due to insufficient humanitarian and compassionate considerations, the applicant was issued a departure order. When it came to humanitarian and compassionate factors, the Federal Court determined that immigrants who worked on the frontline of protecting vulnerable Canadians during the COVID-19 pandemic are owed a moral debt that cannot be ignored.
According to the Federal Court, the context surrounding the applicant's humanitarian and compassionate application is unique and critical. However, the applicant's work during the COVID-19 pandemic deserves more than a passing note from the Immigration Appeal Division (IAD). The court finds that the IAD's decision lacks intelligibility and is unreasonable, in addition to other flaws in its reasoning.
The court added that since the decision is unreasonable, it is not necessary to address the Applicant's argument regarding procedural fairness.
The court concluded that they believe the IAD reached an unreasonable conclusion due to its acceptance that the applicant believed she could not return to Canada while her US immigration application was being processed, the hardship she would experience if separated from her husband, and the applicant's contributions during the COVID-19 pandemic. As a result, this judicial review application was granted.