Humanitarian & Compassionate Applications – The Establishment Factor

Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C“) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.

H&C applications may be based on a number factors, including:

  • establishment in Canada;
  • ties to Canada;
  • the best interests of any children affected by their application;
  • factors in their country of origin (this includes but is not limited to: Medical  inadequacies, discrimination that does not amount to persecution, harassment or  other hardships that are not related to a fear of return based on refugee determination factors;
  • health considerations;
  • family violence considerations;
  • consequences of the separation of relatives;
  • inability to leave Canada has led to establishment; and/or
  • any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.

Establishment in Canada

Immigration, Refugees and Citizenship Canada’s Inland Processing Manual (the “Manual“) provides that the degree of an applicant’s establishment may be assessed by analyzing the following questions:

  • Does the applicant have a history of stable employment?
  • Is there a pattern of sound financial management?
  • Has the applicant remained in one community or moved around?
  • Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
  • Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
  • Do the applicant and their family members have a good civil record in Canada? (e.g. no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse).

It is important to note that neither the legislation nor the courts have established what the threshold for sufficient establishment is.  As the Federal Court noted in Kachi v. Canada (Citizenship and Immigration), it us unreasonable for visa officers to rule that there is insufficient establishment without first establishing what the benchmark is, especially considering that permanent residents and Canadian citizens are under no obligation to “to attend religious services, to partake in community activities, to volunteer, or to make friendships.”

Establishment and Legal Status in Canada

The jurisprudence is mixed on what the consequences of someone being without status, or precarious status, should be on the establishment factor. Being in Canada without status does not automatically lead to the non-application of H&C factors.  In some decisions, remaining in Canada pending the outcome of legal procedures, including after a failed refugee claim, has been found to not necessarily be a negative factor.  In Sebbe v Canada (Minister of Citizenship and Immigration), the Federal Court stated the following  about whether a temporary resident purchasing a house could be a positive establishment factor.  Justice Zinn stated:

The Officer has taken a perverse view of the evidence of establishment forwarded by the applicants. Is every investment, purchase, business established, residence purchased, etc. to be discounted on the basis that it was done knowing that it might have to be given up or left behind? Is the Officer suggesting that it is the preference of Canadians that failed claimants do nothing to succeed and support themselves while in Canada? Is he suggesting that any steps taken to succeed will be worthless, because they knew that they were subject to removal? In my view, the answers to these questions show that it is entirely irrelevant whether the persons knew he or she was subject to removal when they took steps to establish themselves and their families in Canada. While some may suggest that in establishing themselves applicants are using a back-door to gain entry into Canada, that view can only be valid if the applicants have no real hope to remain in the country. In virtually all these cases applicants retain hope that they will ultimately be successful in remaining here. Given the time frame most of these applicants spend in Canada, it is unrealistic to presume that they would put their lives on hold awaiting the final decision.

The proper question is not what knowledge they had when they took these steps, but what were the steps they took, were they done legally, and what will the impact be if they must leave them behind.

As Madam Justice Kane noted in Deheza v. Canada (Immigration, Refugees, and Citizenship), such an approach would discourage temporary residents, and people who are without status but have valid reasons to stay in Canada, from establishing themselves in Canada.

However, in other decisions “flouting the law and ignoring lawful orders to leave the country” has resulted in the establishment factor being neutral or negative.  In Canada (Minister of Citizenship and Immigration) v. Legault, for example, the Federal Court of Appeal stated:

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. (emphasis added)

In Molina v. Canada (Citizenship and Immigration), 2014 FC 530, the Federal Court added that:

When establishment is a function of having deliberately chosen to evade removal, it should not provide an applicant with an advantage over those who have complied with the law.

Circumstances Beyond the Applicant’s Control

The IRCC Manual provides guidance to officers in determining whether positive consideration may be warranted where the period of inability to leave Canada were beyond the applicant’s control, and where there is evidence of a significant degree of establishment in Canada such that it would cause the applicant unusual or disproportionate hardship to apply from outside Canada.  It states:

Circumstances beyond the applicant’s control 

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

Circumstances Not Beyond the Applicant’s Control

An applicant, in Canada for a number of years, is unwilling to sign a passport application or provide particulars for a passport application.

An applicant wilfully loses or destroys their travel document(s).

Applicant goes “underground” and remains in Canada illegally.