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Canada鈥檚 immigration system, by its very nature, is forced to reconcile many differing values and aspirations.

For example, the system attempts to mediate between providing both consistency and certainty on one (metaphorical) hand, but also flexibility and fairness on the other.听听

The Immigration and Refugee Protection Act (IRPA) is the main statute governing immigration to Canada. IRPA reflects this balancing effort. When seeking in Canada, section 25(1) of the IRPA allows persons who do not meet one or more of the application requirements set forth in the Act to request that the government consider waving the relevant requirements on humanitarian and compassionate (H&C) grounds. The Minister of Citizenship and Immigration may also, himself, request such consideration. 听

听When an H&C 听request is made by a foreign national inside Canada, the Canadian immigration system is obligated to consider it. H&C requests can also be made by foreign nationals outside of Canada; however, there is no legal obligation to consider them. 听

听To be clear, H&C consideration is just that: it is a request for an exception to usual application requirements, not an automatic grant of a waiver.听

Canadian legislation and jurisprudence have a longstanding and well-developed framework for evaluating such requests, which has evolved considerably over time.

This body of work allows immigration officers and other decision-makers to grant exemptions to application requirements in many different circumstances, taking into account the facts specific to a given case (e.g. ties to Canada, medical, financial, and admissibility issues, the best interests of children involved, etc.) in a consistent manner. 听

听Sometimes, however, a case emerges which, by its nature is very unusual and challenging. The unfortunate situation of Ms. Elena Starach, on which the Federal Court ruled this past November, is such a case.听

听Ms. Starach is in her early sixties. Unfortunately, she has long suffered the ravages of mental illness 鈥� in her case, schizophrenia. Ms. Starach has spent many of the past years homeless in Toronto; she is now a ward of the Ontario Public Guardian and Trustee. 听

听Because of her illness, Ms. Starach is unable to recall many basic details of her biography, such as where she was born. Compounding this imbroglio, neither (IRCC) or the Canadian Border Services Agency (CBSA) apparently have any immigration records relating to Ms. Starach.听听

听Given her inability to provide relevant background information and documentation, counsel for Ms. Starach accordingly requested that her application for permanent residence receive consideration on H&&C grounds. Factors included: Ms. 厂迟补谤补肠丑鈥檚 mental illness; that Ms. Starach is apparently stateless; and that lack of permanent status in Canada could prejudice Ms. 厂迟补谤补肠丑鈥檚 receipt of government housing and social services.听

听The reviewing officer acknowledged Ms. 厂迟补谤补肠丑鈥檚 situation was difficult but nevertheless rejected the H&C grounds application. Counsel for Ms. Starach sought and obtained leave to pursue a Judicial Review at the Federal Court of Canada to challenge this decision.听

听The judgment of the Court was, simply put, scathing. It held that the Officer 鈥渆ntirely failed to engage with [Ms. 厂迟补谤补肠丑鈥檚 H&C] request鈥� and instead engaged in a 鈥渃ircular and unintelligible analysis鈥� of her situation. The Court concluded that the Officer鈥檚 outright dismissal of Ms. 厂迟补谤补肠丑鈥檚 application on the apparent ground that the Officer was not satisfied Ms. 厂迟补谤补肠丑鈥檚 was in fact stateless, was, itself, unintelligible and without explanation. The judgment also drew from a previous case, Abeleira v Canada (M.C.I.), [Abeleira], which like that of Ms. Starach, involved a person who was stateless, without identification, and not known to have ever been a citizen of another country at any point. The ruling in this Abeleira case emphasized that the immigration officer was required to consider the global deleterious impact of a refusal of H&C permanent residency to such a person.听

听Accordingly, the Federal Court accepted Ms. 厂迟补谤补肠丑鈥檚 appeal and set aside the initial officer鈥檚 decision, remanding it to another officer for redetermination.听

听Ms. 厂迟补谤补肠丑鈥檚 case, while most unfortunate, also illustrates some of the strengths of the Canadian immigration system. There is room for individuals to seek humanitarian and compassionate consideration for their immigration applications when they do not meet all application requirements. The Federal Court demands that Officer鈥檚 determinations be reasonable, intelligible, and in line with existing jurisprudence. If an application is rejected, applicants may still be able to seek recourse at the Federal Court, as Ms. Starach successfully did. 听

听Ms. Starach may have tragically forgotten herself, but the Canadian immigration system has not forgotten her.听听

听If you are interested in learning more about this case, Starach v. Canada (M.C.I.), 2020 FC 917, you can access it at 听

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