On October 23, 2026, the Federal Court granted judicial review of an inland humanitarian and compassionate (H&C) refusal in Nijjar v. Canada (Citizenship and Immigration), 2026 FC 1299 (opens in a new tab). The Court did not grant permanent residence. It set the officer's decision aside and sent the file back to a different IRCC officer. The useful part for families is what the Court said officers must actually do with establishment, hardship, and the best interests of the child (BIOC).
What this case was about
The applicant was an elderly widow from India. She had applied from inside Canada for permanent residence on H&C grounds under IRPA subsection 25(1) (opens in a new tab). Her case rested on three pillars: establishment with family in Canada, hardship if she had to return to India with no immediate family left there, and the best interests of her two grandchildren in Canada (Nijjar, paras 1 and 8).
The officer refused. On BIOC, the officer named the grandchildren, accepted attachment and caregiving, then found their parents were the primary caregivers and that phone or video contact could continue. The officer said there was insufficient evidence that departure would be contrary to the children's best interests (Nijjar, paras 16–18).
The Federal Court disagreed that those reasons were reasonable.
The law in plain words
- Immigration and Refugee Protection Act (IRPA) s. 25(1) (opens in a new tab): the Minister may grant permanent residence or an exemption where H&C considerations justify it, taking into account the best interests of a child directly affected.
- Kanthasamy, 2015 SCC 61 (opens in a new tab): H&C is equitable relief. Officers must treat BIOC as a significant factor (not always the only factor), and they must be "alert, alive and sensitive" to the child's interests (Nijjar, paras 22–23, citing Kanthasamy and Baker (opens in a new tab)).
- Vavilov, 2019 SCC 65 (opens in a new tab): reasons must be justified, transparent and intelligible. Acknowledging evidence is not the same as assessing it.
- IRCC Guide 5291 (opens in a new tab): you must put forward the factors and documents you want considered, including BIOC. BIOC does not automatically outweigh every other factor — but it must be real evidence, not slogans.
The onus stays on the applicant (Nijjar, para 24). That does not let an officer wave away key evidence with a template paragraph.
Where the officer went wrong on BIOC
This is the paragraph families should read twice.
The Court held the officer had to ask how the grandmother's departure would affect the children, not only whether they would still have a parent as primary caregiver (Nijjar, para 48). Finding that parents can arrange "alternative childcare" or that contact can continue by telecommunication does not, by itself, show those alternatives adequately protect the children's interests (Nijjar, paras 48–49).
Boilerplate about phones and video was not enough. The Court pointed to Federal Court authority that alternative methods of communication are not substitutes for physical presence (Nijjar, para 49, citing Bibi, 2025 FC 84 (opens in a new tab), para 28). The officer also failed to explain how the accepted emotional attachment and daily caregiving were weighed against those alternatives (Nijjar, para 50).
ਪਹਿਲਾਂ officer ਦੇ H&C reasons ਪੜ੍ਹੋ; BIOC ਲਈ grandchildren ਦੀ daily care ਤੇ attachment ਵਾਲੇ documents ਲਾਓ, ਸਿਰਫ਼ phone ਵਾਲੀ ਗੱਲ ਨਹੀਂ।
Establishment and hardship were also unreasonable
Establishment. For an elderly widow whose life in Canada was family-centred — co-residence, dependence, daily caregiving — giving that factor only "modest weight" needed a real explanation. Summarizing the family story and then cutting its weight was not enough. The officer also failed to address material evidence of community ties (including weekend Gurudwara attendance with the grandchildren) (Nijjar, paras 28–33).
Hardship. The officer acknowledged emotional and practical hardship, then concluded there was "insufficient evidence" that departure would have a negative impact. The Court said those two ideas do not fit together: limited weight is one thing; "no negative impact" is another (Nijjar, paras 36 and 42). Inferences from past travel to India also had to account for visa refusals and return obligations, not treat earlier stays as proof she could live independently without hardship (Nijjar, para 37). Speculating about a leftover support network in India, without the record to back it, was also a problem (Nijjar, para 39).
What a "win" at Federal Court actually means
Judicial review asks whether the decision was reasonable. It does not redo the H&C application or order IRCC to approve it. In Nijjar, the Court granted the application for judicial review, set the refusal aside, and remitted the matter to a different officer (Nijjar, paras 52–54 and judgment).
Deadlines are short: under IRPA s. 72(2)(b) (opens in a new tab), generally 15 days if the matter arose in Canada and 60 days if it arose outside Canada, from when you are notified. Only a lawyer, or you yourself, can appear in Federal Court. Nalua does not litigate Federal Court matters in-house; when judicial review is the right next step, we refer to the lawyers Gurjot works with. Gurjot represents clients before the IRB himself as an RCIC-IRB. See our Federal Court and IRB page and H&C services.
Checklist before you file or challenge an H&C with BIOC
- Each affected child is named, with age, schooling, health and daily routine
- Caregiving is shown with documents (schedules, school letters, medical letters, photos with dates, affidavits) — not only family statements
- Submissions answer: how would removal or separation change this child's life?
- Telecom or "the parents can cope" is not your whole BIOC theory
- Establishment matches the person's real life (family-centred lives need family-centred proof, plus any community ties)
- Hardship evidence is personal to the applicant, not generic country reports alone
- You have the full reasons / decision notes, and you marked the leave deadline
Your file may differ. That is what a consultation is for.
What to do now
- Today: if you have an H&C refusal, write down the notification date and calculate the 15-day or 60-day leave deadline. Get the full reasons.
- This week: map every BIOC and hardship claim in the reasons to a document in your file. Note what the officer ignored or answered with a template.
- Before you refile or litigate: get a professional review. Learn about Gurjot, our services, or read our earlier post on study permit refusals and judicial review.
Official sources
- Nijjar v. Canada (Citizenship and Immigration), 2026 FC 1299 (opens in a new tab)
- Immigration and Refugee Protection Act, s. 25 (opens in a new tab)
- Immigration and Refugee Protection Act, s. 72 (opens in a new tab)
- Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (opens in a new tab)
- Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) (opens in a new tab)
- Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (opens in a new tab)
- Bibi v. Canada (Citizenship and Immigration), 2025 FC 84 (opens in a new tab)
- IRCC Guide 5291 — Humanitarian and Compassionate Considerations (opens in a new tab)
- Federal Court: How to file an application for leave and for judicial review (immigration) (opens in a new tab)
Book a consultation with Gurjot — Surrey office, English/Punjabi/Hindi: https://cal.com/nalua/immigration-consultation