Delgado v. MCI 2026 FC 497

This is a recent case from the Federal Court canvassing the requirement that a H&C officer approach such applications with empathy and assess in line with the jurisprudence and the evidence presented.

In this case, the applicant was a 65 year old Cuban grandmother. She sought H&C relief which was denied in late 2024; Justice Brouwer granted the application finding that the Officer’s decision was unreasonable. The applicant had first fled her country in 2010 along with her son making her way to Canada that same year where her daughter was already found to be a protected person (her refugee claim had been accepted). Her claim too was accepted and she became a PR in 2012. 6 years later she went to Cuba because her brother was dying and returned to Canada the same year; she’s been here ever since. Her single trip to Cuba led to the Minister seeking to cessate her status which they managed to do in 2021. Notably, this was before the salutary change in jurisprudence regarding cessation proceedings. With the assistance of her counsel she filed a H&C application and raised that point along with her decade plus establishment in Canada, her family here, her grandchildren’s best interests, and the hardship that would result in going back to Cuba (she had documented and longstanding mental health challenges).

The H&C Officer refused the application. At one point the Officer noted that the Cuban health system was among the best in the world (Decision, para 7). The Officer also dismissed the impact on the grandchildren seeing it as no different than other Canadian families with “varying challenges” and noted that the applicant may not want to return to Cuba given her “extended visit” or time in Canada. Finally, the Officer found that she had been granted a privilege by being recognized as a refugee and her return to Cuba showed disrespect for Canadian law.

The Court agreed with the applicant in several respects. Firstly, the Officer’s finding that the Cuban health system was among the best in the world was not in line with the actual evidence presented. Most of her health challenges were not present when she was in Cuba (pre-2010) and moreover the current state of Cuba’s health system is a far cry from what it may have been pre-2010.

In terms of the BIOC, the Court found that the analysis was not in accord with the jurisprudence. The Court agreed with the Applicant that the Officer ignored the emotional interconnectedness and the impact that separation and loss would have on them.

Ultimately the Court found that there is a “larger problem” with the Officer’s assessment: the lack of compassion. The Court cited Kanthasamy and Justice D. Campbell’s decision in Damte. The Court reiterated that H&C applications are “an exercise in empathy”. The Court found that the decision was utterly deficient in this regard and was dismissive overall. The Court specifically calls out the Officer’s characterization of the applicant’s decade plus life in Canada as an “extended visit”. The Court also noted that the recognition of refugee protection is not a privilege but a right. There was no basis for the Officer to get on his high horse and make a moral finding that the applicant showed disregard for Canada’s laws; that she failed to appreciate the “privilege” granted to her and her going back to Cuba on one occasion to be with her dying brother. The Court found that these two passages demonstrated that the Officer failed to engage empathetically with the application.
The decision was set aside and remitted for reconsideration by a different decision maker.