Category Archives: Humanitarian and Compassionate

Explanation of the H&C Bars

The purpose of this blog post is to provide an overview of the changes to Humanitarian & Compassionate Applications (“H&C“) resulting from the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act which are now in effect.  In brief, there are now several restrictions on when H&C applications can be made.

Permanent Residence Applications Only

Perhaps most importantly, section 25 of the Immigration and Refugee Protection Act now states:

Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

[Emphasis Added]

As such, officers cannot consider H&C factors in temporary resident applications, including work permits, study permits, and visitor records.

One Year Bar (and Five Year Bar)

The following table explains how Citizenship and Immigration Canada will process H&C applications in certain scenarios.

If Then
CIC receives the H&C application on or after June 29, 2010, and the applicant has a pending H&C application (this could include an H&C request made in the context of another type of PR application)… the H&C application will NOT be examined, fee and application will be returned.
the application is received on or after June 28, 2012, and the applicant has a pending refugee claim…. the H&C application will NOT be examined, fee and application will be returned.
the application is received on or after June 28, 2012, and the applicant has received a negative decision on a refugee claim from the Immigration and Refugee Board’s Refugee Protection Division (RPD) or Refugee Appeal Division (RAD). the H&C application will NOT be examined until after 12 months have passed since the date of the last decision, fee and application will be returned, unless an exception applies.
the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim AFTER substantive evidence was heard at their RPD hearing the H&C application will NOT be examined until after 12 months have passed since the date that the IRB determined the claim to be withdrawn, fee and application will be returned, unless an exception applies.
the application is received on or after June 28, 2012, and the applicant has withdrawn a refugee claim BEFORE substantive evidence was heard at their RPD hearing the H&C application will be examined.
the application is received on or after June 28, 2012, and the applicant has been determined to be a “designated foreign national” the H&C application will NOT be examined for 5 years.

Exceptions

The exceptions mentioned above are 1) risk to life due to medical condition and 2) adverse effect on the best interests of a child directly affected.  Special rules apply to claiming these exceptions, and it is important that applicants be specific that they are requesting them.

What is a Child?

Almost two years ago I did a post on whether a disabled adult who is dependent on his parents can be considered a child for the “best interest of the child” analysis in H&C applications.  At the time, I wrote that:

[Saporsantos Leobrera v. Canada (Citizenship and Immigration), 2010 FC 587] holds that an adult with a disability remains an adult with a disability, and ought not to be deemed a “child” for the purposes of the Convention on the Rights of the Child, or section 25 of the Immigration and Refugee Protection Act.

It is important to note that this is only the most recent case in a string of decisions on this issue. Given the conflicting preceding decisions on the matter, the issue is by no means settled.

It took longer for this issue to re-emerge in the jurisprudence than I thought it would, but the issue of what the definition of a “child” is for the “best interest of the child” analysis was front and centre in the recent decision of Dugly Medina Moya v. The Minister of Citizenship and Immigration, 2012 FC 971.

In Moya, Justice Hughes agreed with and re-printed much of the judgement in Saporsantos Leobrera, writing that:

The courts have a specific role to play in the Canadian system of constitutional supremacy. Acknowledging the roles of the executive branch, the legislative branch and recognizing the judiciary’s role as one of interpretation of the law. It is, thus, incumbent on the Federal Court to follow the interpretation of the legislation in jurisprudence issued by the Federal Court of Appeal and the Supreme Court.

It is the Court’s conclusion that the definition of “dependent child” is not determinative of whether a person is deserving of a best interests of the child analysis. The Court finds, based on the entirety of section 2 of the IRPR, that the definition of “dependent child” was not intended to apply to the IRPA.

As has been shown, the definition of “child” is undefined in the IRPA and the jurisprudence makes it clear that the best interests of the child analysis has a special relationship with the Convention on the Rights of the Child. Therefore, the Court is of the opinion, based on the above reasoning, that the importance that the Convention on the Rights of the Child has been unduly minimized by the earlier jurisprudence on this matter.

 Although the Court is sympathetic to the position of the Applicant, as the policy behind analyzing the best interests of the child is, as recognized by the Convention on the Rights of the Child, partially based on the physical and mental vulnerabilities of children; and it also recognizes that persons with disabilities may also be vulnerable, to varying degrees, the Court cannot agree that dependency and vulnerability are the defining characteristics of “childhood” for the purposes of section 25. The Court consequently finds that dependent adults should not be included in the analysis of the best interests of the child.

The Convention on the Rights of the Child, Article 1, states:

For the purposes of the present Convention, a child means every human being below the age of eighteen years, unless under the law applicable to the child, majority is earlier attained.

Unlike in Saporsantos Leobrera, however, Justice Hughes acknowledged that there is uncertainty on the issue, and certified the following question:

“Is the ‘child’ spoken of in section 25 of IRPA restricted to a person under the age of 18 years?”

The issue is now on its way to the Federal Court of Appeal, and we should see a definitive answer on this soon.

Marrying an Inadmissible Spouse

By Hammer51012

Sometimes, the Immigration and Refugee Protection Act and its regulations can force individuals to make really difficult choices.  I recently encountered this when a client presented issues raising a refugee claim based on sexual orientation, an inadmissible spouse who had been working with a work permit, potential misrepresentation based on a misunderstanding of the law, and really difficult choices.  

Because I for obvious reasons cannot get into any details on my own clients, I’m going to present the “inadmissible spouse issue” by summarizing a recent Federal Court case: Abalos v. Canada (Citizenship and Immigration).

In Abalos, the Applicant was a live-in caregiver living in Canada whose application for permanent residence was approved-in-principle.  As there was nothing to suggest that she was medically or criminally inadmissible, the coast was essentially clear for her to become a permanent resident. 

Prior to the Applicant’s application being approved in principle, the Applicant married a refugee claimant in Canada.  The man was from the same country that she was.

Shortly after learning that her application was approved-in-principle, the Applicant sent a letter to Citizenship and Immigration Canada informing them that she had gotten married.  

One month later, the Applicant’s husband’s refugee claim was rejected.  The rejection of the refugee claim resulted in the husband being the subject of an unenforceable removal order.

This, unfortunately, triggered the application of s. 113(1)(e) of the Regulations, which provide that:

Permanent residence

113. (1) A foreign national becomes a member of the live-in caregiver class if

(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;

Accordingly, an immigration officer rejected her application for permanent residence, a decision which the court upheld.

A Note on H&C Submissions

It is worth noting that the applicant did ask the Officer to consider humanitarian & compassionate considerations after the officer informed the applicant of his concerns regarding s. 113(1).  However, as noted in the decision, the applicant did not state what the humanitarian & compassionate grounds should have been.

The Best Interests of the Child and Misrepresentation

One of the challenges in immigration law is determining the appropriate balance between the understandable necessity of ensuring that visa applicants are upfront and honest and humanitarian & compassionate considerations (“H&C considerations”).

No where is this challenge more pronounced then when there are children involved.  In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that H&C considerations require that immigration officers consider the best interests of a child when there are children involved.

As I have previously discussed on this blog, this principle has created a bit of a myth that the bests interests of a child will be determinative in any application.  This is simply not the case.  For example, in Canadian Foundation for Children, Youth, and the Law , the Supreme Court declared that:

It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.

Recently, in Moore v. Canada, the Federal Court had the opportunity to analyze the relationship between the bests interests of the child analysis and misrepresentation.   Misrepresentation is considered to be an extremely serious breach of the Immigration and Refugee Protection Act.  The consequence is a two-year ban on entering Canada.

In Moore, Justice Scott cited Ebebe v Canada (Minister of Citizenship and Immigration), 2009 FC 936, and noted that:

In Ebebe, Justice Barnes mentions that the officer was alert, alive and sensitive to the best interests of the child. After reviewing the conclusions of the officer in this regard, he concludes at para 21, that:

All of the above confirms that the Officer carried out a thorough and thoughtful assessment of the best interests of the child. What is essentially being advanced on behalf of Mr. Ebebe is that this decision must be irrational because, in the end, the Officer’s concerns about Mr. Ebebe’s misconduct overwhelmed the evidence supportive of maintaining family unity. While a different decision could certainly have been reached on this record, it was not an error to give great and, indeed, overriding weight to Mr. Ebebe’s misconduct. This was, after all, a case of serious and prolonged misrepresentation of the sort that was of concern to the Court in Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC 358 at paragraph 19:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions.

Justice Scott similarly found that the bests interests of the child do not necessarily trump misrepresentation.

The case is a useful reminder of both the severity of misrepresentation, as well as that the best interests of the child are not determinative.

Canadian Immigration Fee Waiver Possibility?

On April 19, 2011, the Federal Court of Appeal declared that Citizenship and Immigration Canada has the authority to waive application fees for humanitarian & compassionate purposes.

My favorite part of the judgment was the following passage:

I do not accept the Minister’s argument on this point. The result of the Minister’s interpretation is this. It is possible as a matter of law for a person with no financial resources to be granted permanent resident status if the Minister is of the opinion that such a decision is warranted by humanitarian and compassionate considerations or public policy considerations. However, because that same person does not have $550, the Minister cannot permit the opening of the door that would engage the Minister’s statutory authority to assess those considerations. In my view, that state of affairs makes no sense.

Accordingly, section 25(1) of IRPA allows the Minister to waive any applicable criteria or obligation under the Act for humanitarian and compassionate considerations and public policy considerations.

It is important to note that while Citizenship and Immigration Canada has the authority to grant a request made by a foreign national in Canada to waive the requirement to pay an application fee, and that if asked by an applicant it has to make a decision on the matter, Citizenship and Immigration Canada does not have to waive the fee.

So don’t jump for joy at the prospect of of not having to pay application fees, because it’s hard to imagine that Citizenship and Immigration Canada will be granting too many, if any, waivers.

   
   
   
   
   
   

 

Distinguishing PRRA and H&C

Photo By Hamed Saber

Failed refugee claimants, and other people generally without status within Canada, often submit both Pre-Removal Risk Assessment (PRRA) applications, as well as Humanitarian & Compassionate (H&C) ones, as a last ditch effort to acquire permanent resident status.

PRRA Officers are required to determine whether an individual would be at risk of persecution if returned to his/her country of origin. In the context of failed refugee claimants, officers are required to give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

H&C applications, meanwhile, require Immigration Officers to regard public policy considerations and humanitarian grounds to determine whether removal will result in disproportionate hardship.

If an applicant has submitted both a PRRA and a H&C, and both are rejected, then the Applicant should closely examine whether the officer evaluating the applications applied the correct test.

It is a reviewable error of law for an H&C officer to equate state protection with a lack of undue, undeserved, or disproportionate hardship (Demiraj v. Canada, 2011 FC 161; Hinzman v. Canada, 2010 FCA 177).

Failed applicants examining the reasons for their rejection should thus carefully examine whether the correct test was applied.  Even if the rejection reasons state what the test was, it is important to review the reasons to ensure that the stated test was the test applied.  In Ramsawak v Canada (Minister of Citizenship and Immigration), 2009 FC 636, the Federal Court noted that:

This Court has emphasized, in a number of cases, the importance of assessing an H&C claim through the lens of “hardship”, as distinct from that of “risk” applied in relation to a PRRA.

The mere fact that the officer stated the proper test at the outset of his reasons does not indicate, of course, that the officer properly assessed the evidence. To come to the contrary conclusion would be to privilege form over substance. Of course, there is nothing wrong with an officer relying on the same set of factual findings in assessing an H&C and a PRRA application, provided these facts are analysed through the proper prism relevant to each application. This is precisely where the officer went wrong: he appears to have parroted the findings made in his PRRA decision, which was released the same day.

A similar outcome was reached in Paul v. Canada. There, the Federal Court noted that:

The Officer seems to have conflated the H&C application with the PRRA. Indeed, the Officer found that the applicants had failed to demonstrate hardship because of the availability of state protection and because Ms. Paul could return to Canouan, where she took refuge before coming to Canada. Those conclusions are mirrored in the Officer’s reasons for refusing their PRRA.

The Officer correctly considered the risk, which remains relevant in assessing the H&C application (Ramsawak). However, the Court finds that the Officer failed to go beyond the issue of risk and consider whether that risk gives rise to unusual, undeserved or disproportionate hardship.

When You Don’t Understand the Reasons In the Rejection Letter

Have you submitted an immigration application, gotten a negative response, and cannot figure out why? As previously noted in this blog, the duty of fairness only requires that visa officers provide the most basic or minimal reasons for their conclusions and determinations. However, the reasons must still amount to actual, coherent, reasons.

This duty requires the provision of written reasons for a decision. This is especially the case where a decision has important ramifications for the individual or individuals in question. In Baker v. Canada, the Supreme Court noted that:

It would be unfair if the person subject to a decision such as this one which is so critical to their future not be told why the result was reached.

The principle is simple: Unsuccessful litigants (or applicants) should not be left in any doubt as to why they were unsuccessful.

In VIA Rail Canada Inc. v. National Transportation Agency, [2001] F.C. 25 (C.A.), the Federal Court of Appeal held that:

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.

So just what constitutes sufficient reasons? One of the leading cases analyzing this issue is Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565. The case dealt with an application for a visa exemption for humanitarian and compassionate grounds. In denying the application, the Immigration Officer stated that:

I acknowledge that both applicants have established themselves in Canada. It is reasonable to expect that after more than ten years in Canada, they would become established. Both applicants have upgraded their skills in Canada and have been steadily employed. They have not had to rely on social services for financial support. Despite the positive contributions the applicants have made, I am not satisfied that their establishment in Canada constitutes grounds for which an exemption should be granted. I am not satisfied that they have sufficiently demonstrated that the requirement of applying for a visa at a visa office abroad represents unusual, undeserved or disproportionate hardship.

The judge in Abu found that these reasons were completely inadequate. In a paragraph that has been cited in many future judgments, he noted that:

In my view, these ‘reasons’ are not really reasons at all, essentially consisting of a review of the facts and the statement of a conclusion, without any analysis to back it up. That is, the officer simply reviewed the positive factors militating in favour of granting the application, concluding that, in her view, these factors were not sufficient to justify the granting of an exemption, without any explanation as to why that is. This is not sufficient, as it leaves the applicants in the unenviable position of not knowing why their application was rejected.

This paragraph was recently re-iterated in Ventura v. Canada (Citizenship and Immigration), 2010 FC 871. There, the potential immigrant was Angolan. In his Humanitarian & Compassionate application, he listed various ties that he had to Canada, including family relations, community involvement, and establishment in the community. The case is interesting because the government argued that the Immigration Officer did not have to provide detailed reasons because the applicant himself had not explicitly elaborated on why the enumerated factors would constitute hardship. Justice Montigny rejected this argument, and found that the listing of the factors provided enough for the Immigration Officer to work with, and that as the application was complete sufficient reasons were required. The implication is clear: you do not need to provide specific legal arguments in your application, as long as the substance is there.

Here is another example of insufficient reasons from the case Rolfe v. Canada (Minister of Citizenship and Immigration), 2005 FC 1514. There, the applicant was an individual applying for permanent residence. He had extensive experience leading mountaineering expeditions in Europe, and wanted to apply under the self-employed persons class on the basis that he could establish himself economically by leading arctic expeditions.

In rejecting the application, the Immigration Officer stated:

Subsection 12(2) of the Immigration and Refugee Protection Act states that a foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.

Subsection 100(1) of the Immigration and Refugee Protection Regulations 2002, states that for the purposes of subsection 12(2) of the Act, the self-employed persons class is prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are self-employed persons within the meaning of subsection 88(1)[of the same Regulations].

Subsection 88(1) of the regulations defines a “self employed person” as a foreign national who has relevant experience and has the intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada.

“Relevant experience” means at least two years of one of the following types of experience in the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application, namely,

(I) self-employment in cultural activities or in athletics,
(ii) participation at a world-class level in cultural activities or athletics, or

(iii) farm management experience.

“Specified economic activities” means cultural activities, athletics or the purchase and management of a farm.

Subsection 100(2) of the regulations states that if a foreign national who applies as a member of the self-employed persons class is not a self-employed person within the meaning of subsection 88(1), the application shall be refused and no further assessment is required. You do not come within the meaning of a “self-employed person” set out in subsection 88(1) of the regulations because I am not satisfied that your experience as an explorer, leader of northern expeditions, and husky trainer is recognized as a form of cultural activity, sports or farming under the intent of Section 88 of the regulations. You do not meet the requirements of subsection 100(1) of the regulations.

Not satisfied that experience as an explorer, leader of northern expeditions, and husky trainer is recognized as a form of cultural or sports activity? With no explanation as to why? Not surprisingly, the Court allowed the appeal.

The principle that can be derived from this string of reasons is clear: Reasons have to be more than just a conclusion. They must provide a logical train of thought, such that one can determine how the conclusion was reached. The reasons do not have to be particularly detailed, but the train of thought must still be there.

Those that have received rejection letters should also know that the visa officer has a more detailed set of reasons that have been recorded on the system. These reasons are generally not included in the formal rejection letter. Applicants should generally not re-apply without first obtaining a copy of the reasons in the system.

The Best Interests of a Child [Updated]

In considering humanitarian & compassionate considerations, immigration officers are required to consider the best interests of any child affected by the decision.

Baker v. Canada (Minister of Citizenship and Immigration) is the landmark Supreme Court of Canada decision which stands for the principle that the best interests of the child must be taken into consideration during H&C applications. This principle is now codified in s. 25(1) and s. 25(1.1) of IRPA, which states that:

25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. [Emphasis Added]

and

25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

IP-5 Immigrant Applications in Canada made on Humanitarian and Compassionate Grounds specifies the following factors that immigration officers should consider in analyzing the best interests of the child:

  • The age of the child;
  • The level of dependency between the child and the H&C applicant or the child and their sponsor;
  • The degree of the child’s dependency in Canada;
  • The child’s links to the country in relation to which the H&C assessment is being considered;
  • The conditions of that country and the potential impact on the child;
  • Medical issues or special needs the child may have;
  • The impact to the child’s education; and
  • Matters related to the child’s gender.

An Important Factor, but Not Determinative

Decision makers must actively and seriously consider the best interests of the child. They may not simply provide lip service to a number of relevant factors with a cursory analysis of the child’s best interest: Duka v. Canada (Citizenship and Immigration), 2010 FC 1071.

A good summary of these principles is found in Jiminez v. Canada (Citizenship and Immigration), where the Court cited Legault v. Canada, 2010 FCA 125, in stating that:

In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to re-examine the weight given to the different factors by the officers.

In short, the immigration officer must be “alert, alive and sensitive” (Baker, supra, at paragraph 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. . . . It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any “refoulement” of a parent illegally residing in Canada (see Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused, [1995] 3 S.C.R. vii). [Emphasis added.]

Canadian Foundation for Children, Youth, and the Law is another Supreme Court of Canada decision which notes that the best interests of the child are not determinative. There, the Court stated that:

It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice. (Emphasis added.)

Nonetheless, while the best interest of the child does not necessarily trump other factors for consideration: Legault v. Canada (Minister of Citizenship and Immigration), p2002[ F.C. 358 (F.C.A.), the decision-maker must consider children’s best interest as an important factor, giving them substantial weight, being alert to them, and being sensitive to them: Baker.

Younger Isn’t Always Better

Many people often think that the younger a child is the more important it is that that child be reunited with his/her parent.  Somewhat counter-intuitively, this is not the case.  The courts have consistently held that the younger a child is, then the lower the impact of a parent’s removal. (See Lodge v. Canada, 2011 FC 152)