What is the test for the grant of humanitarian and compassionate relief under section 25(1) of the IRPA?
It was set out by the Supreme Court in Kanthasamy, at paragraph 21:
...to offer equitable relief in circumstances that "would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunates of another": Chirwa, at p. 350.
Justice Zinn, in a recent decision, commented on the fact that there are some Federal Court decisions that have phrased the test/question in a different way, "...in particular, decisions that require that an applicant's circumstances be compared to those of others..." (Zhang 2021 FC 1482) After commenting that it was "challenging" to discern the origin of this practice, Justice Zinn points to a representative statement by the Chief Justice:
...applicants for such relief must demonstrate the existence of misfortunes or other circumstances that are exceptional, relative to other applicants who apply for permanent residence from within Canada or abroad..." (Huang 2019 FC 265 at para 20).
Justice Zinn notes that this statement appears to have been followed and relied upon by H&C officers. In his view (one that I must agree with) this "comparison requirement is not supported by Kanthasamy". He concludes his analysis by stating that the H&C analysis/test "requires only an examination of the personal circumstances of an applicant. It does not require that a comparative analysis be done." (Zhang, supra, paragraph 24)
In a recent case (to be heard before Justice Phelan on February 28, 2022) we raised concerns that the Officer was operating under the understanding that the Applicant was to show exceptional hardship or misfortune (relative to others). The proper question is of course whether their personal and particular circumstances give rise to sympathy and a heart felt desire to relieve them from their suffering and difficulty.
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