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.