Malaekeh v. Canada (Citizenship and Immigration)

Introduction

Applying for permanent residence in Canada on Humanitarian and Compassionate (H&C) grounds is a nuanced and challenging process. A recent case, Malaekeh v. Canada (Citizenship and Immigration), 2024 FC 1058, illustrates the complexities involved, particularly around the establishment factor. This case involved an applicant who sought permanent residence based on his extensive time in Canada, employment history, family ties, and lack of connection to Iran.

Background: The Applicant’s Claim

The applicant had been residing in Canada for over 35 years. He argued that his long-term stay, work experience, and family and social connections demonstrated a significant establishment in Canada. Furthermore, he pointed out the absence of any ties to his home country, Iran, as a critical factor. Under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA), immigration officers have the discretion to grant exemptions on H&C grounds, allowing applicants to bypass the standard requirement of obtaining a permanent residence visa from abroad and overcome certain eligibility or admissibility issues.

The Legal Challenge: Establishing a Case for H&C Grounds

The core issue in H&C applications often revolves around the establishment factor, where applicants must provide evidence of their significant ties and integration into Canadian society. The Court noted that the burden of proof lies with the applicant, who must clearly outline the factors for consideration and provide corroborating evidence. In this case, the absence of sufficient supporting documents significantly weakened the applicant’s position.

The jurisprudence on the impact of being without status or having precarious status in Canada varies. While remaining in Canada after a failed refugee claim does not automatically disqualify an applicant from H&C consideration, it does necessitate strong evidence of establishment. This case highlighted that merely residing in Canada for an extended period is insufficient without proper documentation supporting claims of establishment.

Case Analysis: Malaekeh v. Canada (Citizenship and Immigration)

In Malaekeh v. Canada (Citizenship and Immigration), Justice Gleeson ruled that the IRCC’s determination of insufficient evidence of establishment was reasonable. Despite the applicant’s long residence in Canada, the lack of supporting documents—such as employment records, community involvement, and family ties—was a critical factor in the case’s outcome. This decision underscores the importance of providing comprehensive evidence to substantiate claims of establishment.

Implications

The Malaekeh v. Canada case serves as a crucial reminder for applicants seeking permanent residence on H&C grounds. It emphasizes the need for meticulous preparation and thorough documentation of all relevant aspects of an applicant’s life in Canada. Establishment is not solely based on the length of stay but requires demonstrable ties to the community, a stable employment history, and other factors that showcase integration into Canadian society.

This case also highlights the discretionary nature of H&C decisions and the variability in judicial interpretations. It is vital for applicants to understand that each case is unique, and strong evidence is necessary to meet the required threshold for H&C considerations.