Aboye v. Canada: Anti-Black Racism as Hardship in H&C—Beyond Basics to Effective Protections and Mental Health Impacts

Aboye v. Canada: Federal Court Affirms Anti-Black Racism as H&C Hardship and Rebukes Token Reliance on State Remedies

Date of update: 2025-07-25 | Source: Federal Court of Canada (Court Decision)

Summary: The Federal Court allowed judicial review in Aboye v. Minister of Citizenship and Immigration (2024 FC, citation pending; IMM-4167-24), finding an Officer’s refusal of a humanitarian and compassionate (H&C) application unreasonable. Justice Paul Favel held that anti-Black racism constitutes hardship even where basic services are accessible; that Officers must assess the effectiveness—not mere existence—of state protections; that mental health impacts must be evaluated under Kanthasamy without requiring proof of treatment unavailability abroad; and that best interests of the child (BIOC) must be analyzed distinctly, not subsumed within hardship. The matter was remitted for redetermination; no certified question issued. In a ruling with immediate relevance to H&C assessments under IRPA s. 25(1), the Court reviewed an Ethiopian-Italian family’s application grounded in establishment in Canada, systemic discrimination experienced in Italy, and the best interests of their children. The Officer accepted that racism existed but minimized its weight by pointing to access to employment, housing, education, and national anti-discrimination bodies. Justice Favel found this approach “unintelligible” in several respects and aligned the analysis with Kanthasamy and Vavilov:

- Anti-Black racism is hardship even where socioeconomic basics exist. Reliance on access to “electricity and running water” as a mitigating factor was rejected as focusing on bare minimums rather than lived harms, consistent with Alex (2022 FC).

- State protection must be assessed for effectiveness, not just existence. The Officer failed to grapple with record evidence of weak enforcement and a far-right government’s anti-immigration stance when weighing Italy’s National Office to Combat Racial Discrimination.

- Mental health must be centrally considered under Kanthasamy. Once anxiety, depression, and suicidal ideation are accepted on the evidence, demanding proof that treatment is unavailable in Italy contravenes Kanthasamy (2015 SCC, para 47). The proper lens is the adverse impact of removal on the applicants’ health.

- BIOC requires a separate, child-centered analysis. The Officer erroneously intertwined BIOC (limited to the minor child) with general hardship and failed to address how racism permeates schooling. The Court noted the persistent trend of no BIOC analysis for those over 18, even if dependent, and cautioned against presuming adaptability without addressing vulnerabilities. This decision reinforces an empathetic, globally contextual H&C framework: Officers must meaningfully engage with systemic discrimination and mental health evidence rather than defaulting to formalistic references to services or institutions. The Court indicated no tension with recent jurisprudence; for example, Rubio (2025 FC) supports a contextual approach on different grounds. Program affected: H&C (humanitarian and compassionate considerations) Independent analysis and potential impacts:
- Positive: The ruling provides clear, citable guidance for recognizing anti-Black racism as substantive hardship; elevates mental health impacts in removal risk assessments; and strengthens standards for evaluating state protection effectiveness. It may improve consistency and fairness in H&C decisions involving systemic discrimination.
- Negative/operational: Expect more intensive evidentiary and analytical requirements for Officers, potentially increasing processing times. Applicants will likely submit broader country-conditions and enforcement-efficacy evidence, and decisions that rely on generic references to services or institutions face heightened litigation risk. The continued limitation of BIOC to minors may leave adult dependents without a tailored best-interests analysis. Outcome: Judicial review allowed; refusal set aside and matter remitted for redetermination. No certified question.

Tags: Canada immigration, H&C, humanitarian and compassionate, Federal Court, anti-Black racism, state protection effectiveness, mental health, Kanthasamy, Vavilov, best interests of the child, Italy, systemic discrimination, IRPA s.25, Rubio 2025 FC, Alex 2022 FC End of article.