Federal Court Grants Judicial Review: H&C Grounds Not Properly Considered

OUTCOME: Allowed

Date: 20260529 Docket: IMM-3229-25 Citation: 2026 FC 705 Ottawa, Ontario, May 29, 2026 PRESENT: [NAME]. [NAME]: [APPELLANT] Applicant and THE MINISTER OF CITIZENSHIP [RESPONDENT] Respondent

REASONS AND

JUDGMENT I. Overview [ 1 ] On January 30, 2025, an [RESPONDENT], [NAME] [IRCC] officer [Officer] rejected the Applicant’s application for permanent residency from within Canada on humanitarian and compassionate [[NAME]] grounds after concluding that the factors outlined in her application were not sufficient for her to be granted an exemption [Decision]. [ 2 ] The Applicant now seeks judicial review of the Decision pursuant to paragraph 72(2) of the [RESPONDENT] Protection Act , SC 2001, c 27 [IRPA]. [ 3 ] For the reasons provided orally at the hearing and committed in writing below, the application for judicial review is granted. [ 4 ] The Applicant is a citizen of Afghanistan. She arrived in the United States of America [US] through the evacuation efforts by the US in Afghanistan in August 2021 and made a claim for asylum upon her arrival. [ 5 ] The Applicant requested to relocate to Canada as she had relatives in the country, but her request was denied by [NAME]. On January 20, 2023, she entered Canada without reporting to a port of entry. On January 30, 2023, she was directed to report for an interview by the Canada Border Services Agency [CBSA] and she made a refugee claim that same day. [ 6 ] On January 31, 2023, a section 44 Report was prepared. Since the Applicant has a sister in Canada, she was found eligible to submit a refugee claim despite arriving from the US. She was issued a work permit on October 31, 2023, which was valid through October 31, 2025. [ 7 ] On November 7, 2023, the [RESPONDENT] and [NAME] found the Applicant to be ineligible to make a refugee claim under the Safe Third Country Agreement between Canada and the US due to her previous asylum claim made in the US. The Applicant has not yet been removed due to the current temporary suspension of removals [TSR] to Afghanistan. [ 8 ] The Applicant applied for permanent residency in Canada under section 25(1) of the IRPA on January 9, 2024. The application details the Applicant’s past as a teacher, as Director of Women’s Affairs in the province of Nangarhar, and as an independent Member of National Assembly for Nangarhar until the [NAME] took control of Kabul in August 2021. The application further details the arrival of the [NAME] and the Applicant’s personal circumstances under the [NAME] as well as her escape from Afghanistan. The application also included objective country condition evidence on Afghanistan about the general humanitarian crisis, the mistreatment and violence against women, and the detaining of activists, [NAME], [NAME] and members of [NAME]. [ 9 ] As for [NAME], the Applicant relied mainly on her profile, submitting that as a single unmarried woman with an extensive background in women’s welfare in Afghanistan, and being a former politician in Afghanistan, her profile is such that she would face serious risks and hardship if she was forced to return to Afghanistan to apply for permanent residency. [ 10 ] In her Decision, the Officer determined that the factors outlined in the Applicant’s application for permanent residence from within Canada were not sufficient for the Applicant to be granted an exemption on [NAME] grounds, and therefore, refused the [NAME] application.

II. Analysis [ 11 ] The Applicant submits that the Decision is unreasonable on numerous grounds. I will focus on one ground that I consider warrants intervention by the Court – the alleged failure by the Officer to consider any of the risk factors raised by the Applicant. [ 12 ] The Officer states on the concluding paragraphs of the Decision that she considered the extent to which the Applicant, “given her particular circumstances,” would face difficulties in leaving Canada in order to apply for permanent residence abroad. However, I am unable to discern from the Officer’s reasons where such consideration was given. [ 13 ] The Officer specifically noted that the situation of general insecurity in Afghanistan may be the source of some hardship to those who seek permanent residence in Canada. She further recognized that the situation in Afghanistan was far from ideal for many women and girls. [ 14 ] However, there is simply no analysis of the unique circumstances of the Applicant’s case in arriving at the Decision, in spite of the fact that the Applicant had explained in detail her personal circumstances, which reflected a heightened risk that the Applicant faced in Afghanistan. [ 15 ] The question at issue here is whether due to the current conditions in the home country of the Applicant where a TSR is in place, it would be a hardship for the Applicant to return there to apply for permanent residence, as is ordinarily required by s 11 of the IRPA, such that an exemption under s 25(1) of the IRPA would be warranted. [ 16 ] I agree with the Applicant that the Officer erred by affording the country conditions in Afghanistan little weight in her hardship analysis, in part, on the basis that the TSR currently prevents the Applicant from being removed to that country. The error arises because the Officer failed to engage with the Applicant’s submission that she would have no choice but to leave Canada and return to Afghanistan to apply for permanent residence. Had the Officer done so, this would have required the Officer to consider whether the return to Afghanistan in that event warranted [NAME] relief under s 25(1) of the IRPA: [RESPONDENT] v Canada (Citizenship [RESPONDENT]) , 2022 FC 1194 at para 32. [ 17 ] I wish to add that the Officer cannot be faulted for highlighting significant gaps in the Applicant’s application regarding her establishment in Canada. I disagree with the Applicant that establishment was an irrelevant consideration in this case. As stated by Justice Denis Gascon in [NAME] v Canada (Citizenship [RESPONDENT]) , 2015 FC 1070 at para 25: “A strong degree of establishment is required for an [NAME] application to succeed… It is the applicant’s onus to provide sufficient evidence of significant establishment, not on the Officer to investigate Mr. [NAME] allegations and evidence.” III. Conclusion [ 18 ] For the reasons above, the application for judicial review is granted. [ 19 ] The parties do not raise a question of general importance for certification, and I find none arises in this case.

JUDGMENT in IMM-3229-25 THIS COURT’S

JUDGMENT is that : The application for judicial review is granted. The Decision of the Officer is set aside. The matter is remitted to a different officer for reconsideration. The applicant shall be afforded a period of 30 days from the date of this Judgment to provide additional evidence and submissions in support of her [NAME] application. No question is certified. “[NAME]” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3229-25 STYLE OF CAUSE: [APPELLANT] v THE MINISTER OF CITIZENSHIP [RESPONDENT] OF HEARING:

HELD BY VIDEOCONFERENCE DATE OF HEARING: May 27, 2026

REASONS AND

JUDGMENT: [NAME] J. DATED: MAY 29, 2026 APPEARANCES : [COUNSEL] For The Applicant [APPELLANT] For The Respondent SOLICITORS OF RECORD : [COMPANY] and Solicitor Surrey, British Columbia For The Applicant Attorney General of Canada Vancouver, British Columbia For The Respondent