Vancouver, British Columbia, March 4, 2025
PRESENT: Justice Andrew D. Little
BETWEEN:
JORGE MARIANO ANTONIO PINTO GUARDADO
REGINA MARIA HERNANDEZ DE PINTO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] The applicants ask the Court to set aside a decision by a senior immigration officer dated June 23, 2022, which denied their request for permanent residence in Canada with an exemption on humanitarian and compassionate (“H&C”
) grounds under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”
).
[2] The applicants submitted that the H&C decision should be set aside as unreasonable under the principles set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.
[3] For the following reasons, I conclude that the decision was unreasonable and must be set aside.
I. Facts and Events Leading to this Application
[4] The applicants are citizens of El Salvador. They are currently living in Canada. Their adult children also reside here. Their two daughters are Canadian citizens and their son resides here on a study permit. Their grandchildren are Canadian citizens.
[5] In their H&C application, the applicants provided the following information relevant to this application.
[6] From 2004 to 2006, Mr Pinto was the General Director of the El Salvador Ministry of Public Health, a cabinet-level position appointed directly by the President of El Salvador. Mr Pinto advised that during his time in government, he led efforts to fight corruption and reform public health institutions. After he left his role, he successfully defended himself against an administrative investigation and numerous civil lawsuits for many years.
[7] In 2013, Mr Pinto was charged in criminal court in El Salvador, along with other board members of a small business association he led prior to entering government, of “undue appropriation”
resulting from the same contract dispute that was the basis of the prior civil suits.
[8] In 2016, the prosecutor withdrew the charges, but they were later revived by the Chief Prosecutor General, a political appointee. The charges were later dismissed by the criminal court on the grounds that the accusations remained a civil matter, a decision upheld at first appeal and then reversed in June 2017 by the El Salvador Supreme Court of Justice.
[9] On June 29, 2017, the day after the criminal charges were reinstated, Mr Pinto was given authorization to leave El Salvador, provided he returned there by September 1, 2017.
[10] On July 20, 2017, Mr Pinto entered Canada. His wife, the applicant Ms Hernandez de Pinto, had already entered on January 24, 2017.
[11] In August 2017, Mr Pinto filed a claim for refugee protection under the IRPA. He did not return to El Salvador by September 1, 2017.
[12] The Refugee Protection Division and the Refugee Appeal Division dismissed the refugee claim.
[13] In 2021, the applicants applied for permanent residence in Canada under IRPA subsection 25(1) with an exemption on H&C grounds. The application was unsuccessful, and the applicants challenged the decision in this Court. The matter was resolved consensually, and their H&C application was sent for redetermination.
[14] The applicants were offered a pre-removal risk assessment (“PRRA”
), for which they applied.
[15] The H&C redetermination and the PRRA both resulted in negative decisions. The applicants sought leave to apply for judicial review of both decisions.
[16] In this proceeding, the applicants challenge the negative H&C decision. I understand they no longer challenge the PRRA decision.
II. Legal Principles
[17] The parties both submitted that the standard of review of the H&C decision is reasonableness, as described in Vavilov. I agree: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909, at paras 42-44.
[18] Reasonableness review is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras 8, 63; Vavilov, at paras 12-13 and 15. The starting point is the reasons provided by the decision maker, which are read holistically and contextually, and in conjunction with the record that was before the decision maker. A reasonable decision is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrained the decision maker: Mason, at paras 8, 59-61, 66; Vavilov, esp. at paras 85, 91-97, 103, 105-106 and 194.
[19] The Supreme Court’s reasons in Mason underlined the importance of responsive justification in a decision maker’s written reasons. If a decision maker fails to provide a responsive justification for its decision – that is, there has been a significant failure to account for or meaningfully grapple with a party’s key issues or central arguments – a reviewing court may lose confidence in the reasonableness of the decision: Mason, at paras 10, 86, 97, 98, 118; Vavilov, at paras 127-128.
[20] Subsection 25(1) of the IRPA gives the Minister discretion to exempt foreign nationals from the ordinary requirements of that statute and grant permanent resident status in Canada, if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. The H&C discretion in subsection 25(1) is a flexible and responsive exception to the ordinary operation of the IRPA and can be used to mitigate the rigidity of the law in an appropriate case: Kanthasamy, at para 19.
[21] Humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable […] [person] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the [
IRPA]”
: Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 IAC 338, at p. 350, as quoted in Kanthasamy, at paras 13 and 21. The purpose of the H&C provision is to provide equitable relief in those circumstances: Kanthasamy, at paras 21-22, 30-33, 45.
[22] Subsection 25(1) has been interpreted to require that the officer assess the hardship that the applicant(s) will experience upon leaving Canada. Although not used in the statute itself, the appellate case law has confirmed that the words “unusual”
, “undeserved”
and “disproportionate”
describe the hardship contemplated by the provision that will give rise to an exemption. Those words to describe hardship are instructive but not determinative, allowing subsection 25(1) to respond flexibly to the equitable goals of the provision: Kanthasamy, at paras 33 and 45.
[23] The H&C assessment under subsection 25(1) is a global one, and all relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances: Kanthasamy, at paras 25, 27-28, 33; Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at paras 74-75.
III. The H&C Decision was unreasonable
[24] The applicants raised several issues to support their position that the H&C decision was unreasonable under Vavilov principles. Two of those arguments persuade me that the decision was unreasonable.
A. Assessment of Hardship on a return to El Salvador
[25] The applicants submitted in their H&C application that they would be subject to continued political persecution if they return to El Salvador, and that a “decades-long campaign to blacklist and discredit Mr Pinto and his family has made it impossible for him to conduct business or find work in El Salvador …” They advised that by defending against the investigations and charges against him, they exhausted all of the family’s financial resources and had to rely on money sent by their children then residing in Canada. The applicants argued that if they return to El Salvador, the impact of the blacklisting and persecution would cause undue hardship to them and their family in Canada.
[26] The H&C decision found that the process of re-integration and re-establishment in El Salvador was an “ordinary consequence” of the applicants’ return to that country. The decision continued to state:
While potentially not easy, tasks such as finding employment and realizing financial security are incidental to this process. The male applicant is a highly educated, astute and mobile individual. He completed post-secondary studies in engineering and marketing and held managerial and executive positions in El Salvador and Guatemala. In view of this information, I am not satisfied that he could not use his education, skills and work experience to once again secure his livelihood outside of Canada.
[27] In my view, there are material flaws in the reasoning process for this issue. While the H&C decision appeared initially to recognize the applicants’ position, their very point was that the return to El Salvador would not involve the “ordinary consequences”
of a return, owing to Mr Pinto’s history of mistreatment in El Salvador and because he could not previously secure a livelihood there. It was not responsive to the substance of the applicants’ position merely to provide perfunctory statements that finding employment or financial security was “incidental”
to their return to El Salvador and that Mr Pinto could use his education, skills and work experience to “once again secure his livelihood”
.
[28] In addition, the officer’s cursory conclusions failed to engage with the evidence, particularly evidence that contradicted those conclusions and that the applicants cited in their written submissions. The applicants provided facts and details to support their position that the decision appears to have ignored, including:
- a)Mr Pinto’s sworn statement described the situation in El Salvador over the years, including the charges and investigations against Mr Pinto. The statement advised that Mr Pinto regularly experienced threats and harassment everywhere he went, including daily telephone calls threating him and his family. By 2013, his personal income had “completely dried up” and the family was living off his wife’s pension and money sent by their daughters in Canada.
- b)The applicants’ son described graduating and getting a job in El Salvador but being fired due to his father’s name. He confirmed that neither of his parents could find work and that they depended on his sisters to send money from Canada. He described the family selling their furniture and other belongings to get money. He described “experiences of persecution and mental torture” .
- c)The statement from one of the applicants’ daughters described the family’s situation in El Salvador ( “constant telephone calls threatening my dad” , an attack on her sister with guns) and why she came to Canada (the “threats, unsafe and dangerous situation we were going through” ). She also described being a student in Canada from 2012-2016 while simultaneously working (first as a cleaner of two or three houses a day, then in retail positions) so she could both pay her tuition and expenses and also send money to her parents in El Salvador because Mr Pinto did not have a job, and the family business was not doing well.
[29] In my view, the officer’s decision was flawed due to the failure to assess and respond to the applicants’ evidence and submissions concerning hardship upon their return to El Salvador: Vavilov, at paras 125-128.
B. Failure to consider filed evidence
[30] The applicants submitted that the H&C decision did not consider a statement from their daughter dated August 19, 2022, that was submitted to IRCC by email on August 23, 2022. The officer’s decision is dated June 23, 2022, but the decision was not sent to the applicants until October 11, 2022, well after the applicants filed the August statement. It is not clear from the record whether or when the new statement was sent to the officer. The H&C decision did not list the statement as a source consulted.
[31] The respondent did not disagree with the timeline of events just described.
[32] The new statement addressed the high cost of childcare in Vancouver, whether their daughter could continue to work without her parents’ support, and the impact of the applicants leaving Vancouver and returning to El Salvador. The applicants submitted that the statement should have been considered before the decision was rendered. The respondent argued that the new evidence was not material to the overall H&C decision.
[33] It is not clear whether the additional statement would have been dispositive of the H&C application. However, it was of sufficient importance to the issue of applicants’ and the family’s hardship submissions, and to an assessment of the best interests of the applicants’ grandchildren, that it had to be considered by the officer in making the H&C decision.
C. Impact of the Two Flaws
[34] Together, these two concerns affect the fundamental reasonableness of the H&C decision and are sufficient to render the decision unreasonable, for failure to respect the factual constraints in the record and provide responsive justification for the decision: Mason, at paras 76, 81; Vavilov, at paras 100, 104, 125-128.
IV. Conclusion
[35] For these reasons, the application is allowed. The H&C decision is set aside, and the matter is remitted to another officer for a redetermination. The applicants shall have the right to update or file additional evidence and/or submissions in relation to the redetermination of their H&C application.
[36] Neither party raised a question to certify for appeal. No question will be stated.
JUDGMENT in IMM-10599-22
THIS COURT’S JUDGMENT is that:
The application is allowed. The decision dated September 5, 2023, is set aside.
The matter is remitted for redetermination by another officer. The applicants shall be permitted to update their application with additional evidence and/or submissions for the redetermination.
No question is certified for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act.
"Andrew D. Little"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-10599-22
STYLE OF CAUSE:
JORGE MARIANO ANTONIO PINTO GUARDADO, REGINA MARIA HERNANDEZ DE PINTO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING:
OCTOBER 8, 2024
REASONS FOR JUDGMENT AND JUDGMENT:
A.D. LITTLE J.
DATED:
march 4, 2025
APPEARANCES:
Randall Cohn
For The ApplicantS
Richard Li
For The Respondent
SOLICITORS OF RECORD:
Law Office of Randall K. Cohn
Vancouver, British Columbia
For The ApplicantS
Richard Li
Attorney General of Canada
Vancouver, British Columbia
For The Respondent