It is not uncommon for people to submit both Pre-Removal Risk Assessment (PRRA) applications as well as Humanitarian & Compassionate (H&C) applications at the same time.
The test for the two applications, however, is quite different.
Officers assessing PRRA applications 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 consider public policy considerations and humanitarian / compassionate grounds justify an exemption from the need to apply for permanent residence under a specific program and outside of Canada.
If an applicant has submitted both a PRRA and a H&C, and both are rejected, then an applicant should closely examine whether the officer evaluating the applications applied the correct test, as it may be the case that an officer has conflated the requirements for the two applications.
For example, it is a reviewable error of law for an H&C officer to equate the existence of state protection with a lack of undue, undeserved, or disproportionate hardship (Demiraj v. Canada, 2011 FC 161; Hinzman v. Canada, 2010 FCA 177).
As well, there is no requirement that an individual face risk not generally borne by the population in his or her country of origin, as is the case with PRRA assessments (Rubayi v. Canada, 2018 FC 74).
Failed applicants examining the reasons for their rejection should thus carefully examine whether the correct test was applied. Even if a visa officer in a rejection state what the correct test was, it is important to review in detail 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.
Finally, in Miyir v. Canada (Citizenship and Immigration), 2018 FC 73, Justice Diner stated that in situations where H&C applicants provide substantially the same arguments for why they would experience hardship as why they would face risk, then the following rules generally apply:
- An H&C applicant may allege that he or she will face “hardship” upon return to his or country of origin, and such a circumstance must then be factored into the consideration of whether to grant H&C relief;
- Where the alleged “hardship” in the country of origin is based on facts found not to be credible in a failed refugee claim, nothing precludes the applicant from raising those same facts in an H&C application. However, it is the applicant’s onus to overcome those prior negative credibility determinations;
- If “hardship” is argued based upon facts that the H&C officer indeed accepts, the officer must then consider whether “hardship” justifies H&C relief, in a holistic, flexible, and equitable manner as required by Kanthasamy; and
- The H&C officer must be careful not to conflate the refugee analysis with the “hardship” the applicant may face applying from abroad. For instance, an H&C applicant need not show that adverse country conditions affect him or her more severely than the general population. Further, an applicant need not lead direct evidence of discrimination if he or she belongs to a group that experiences discrimination.