Humanitarian & Compassionate Applications

Meurrens LawHumanitarian and Compassionate

People who would not normally be eligible to become permanent residents of Canada may be able to apply on humanitarian and compassionate (“H&C“) grounds.

Humanitarian and compassionate grounds apply to people with exceptional cases.

Here are 2020 approval statistics for humanitarian & compassionate class applications.

2A-2020-95301_Release package

Sample Decisions

Below are sample H&C decisions that were used in an Immigration, Refugees and Citizenship Canada training session.

For each example, IRCC provided a chat to show a portion of the officer’s decision-making steps to describe context of the application.

As can be seen, a big deficiency in many H&C applications is the applicant not providing documentary examples to substantiate their assertions in claim.

The H&C requests were based on the following situations:

  • Domestic violence in Mexico from two former partners
  • Discrimination in Japan
  • Criminal gangs in Honduras
  • Members of a drug cartel
  • Land dispute
  • Adverse country conditions in Bulgaria
  • Membership in a political party
  • Adverse country conditions in China
  • Adverse country conditions in Fiji
  • Religious discrimination in Bangladesh
Sample H&C

COVID-19

In the following years there will likely be many humanitarian & compassionate consideration applications filed by people who worked as front-line workers during COVID-19.  In Mohammed v. Canada (Citizenship and Immigration), 2022 FC 1, Justice Ahmed made a statement about COVID-19 front-line workers in the humanitarian & compassionate context. He wrote:

At a time when most people in Canada were staying at home to avoid the spread of COVID-19, frontline workers were risking their own health to provide essential services. This includes those who worked tirelessly in long-term care homes that saw frequent COVID-19 outbreaks and many deaths. The evidence before the IAD in this appeal included evidence demonstrating the heavy toll COVID-19 has taken on female immigrants working in health care.

An employment letter on the record states that the Applicant has been employed at the Bethany Care Society since December 7, 2020 and is currently working as a Health Care Aide at Bethany Airdrie, a long-term care facility in Airdrie, Alberta. The letter states that the Applicant ““[…] maintains casual employment at Bethany with the ability to pick up additional shifts.”” As counsel for the Applicant aptly pointed out during the hearing, there was nothing casual about working at a long-term care facility during those times. This same facility was hit with a COVID-19 outbreak in early January 2021. Evidence before the IAD shows that on January 4, 2021, Bethany Airdrie reported 40 cases at the facility, including 19 employees and 21 residents, and the deaths of two residents from COVID-19. The entire facility remained under lockdown during this time.

As a health care aide, the Applicant risked her own health and safety to support health-compromised and aging individuals. She is applying the very skills she acquired in Canada over a decade ago at a time when they are desperately needed, while not knowing if she herself will be able to stay in Canada. To frame this commitment and these contributions as only a ““moderately positive”” factor in the Applicant’s appeal is unintelligible.

The moral debt owed to immigrants who worked on the frontlines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be understated. I do not find that the IAD gave this contribution the weight it deserved.

The Ordinary Operation of the Law

In Kashyap v Canada (Citizenship and Immigration), 2022 FC 961, Justice Diner addressed comments made by an officer in an H&C decision, noting:

Furthermore, the remark about paying deference to the law and statutes of Canada suggests a significant misapprehension of the Officer’s role in evaluating a s 25(1) application, which is not to simply pay deference to the ordinary operation of the law, but to weigh and consider whether H&C considerations warrant a flexible and responsive exception thereto (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, at para 19 [Kanthasamy]).

First and foremost, the raison d’être of the H&C exemption is to overcome non-compliance or other obstacles posed by immigration rules, by offering equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” (Kanthasamy at para 21, citing Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338 at p 350).

There were compassionate circumstances here that the Applicant submitted but the Officer simply did not address, instead reciting a need to be deferential to the law – which, again, includes an exception contained in s 25(1) of the Act. The Officer is owed significant deference in making this highly discretionary determination, but not to the point of failing to weigh all the relevant facts and factors before them (Kanthasamy at para 25).

Discrimination

In Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 Justice Abella, writing for the majority, stated that  direct evidence is not necessary to establish potential discrimination and related hardship.  She wrote:

The Officer agreed to consider the hardship Jeyakannan Kanthasamy would likely endure as discrimination in Sri Lanka against young Tamil men. She also accepted evidence that there was discrimination against Tamils in Sri Lanka, particularly against young Tamil men from the north, who are routinely targeted by police. In her view, however, young Tamils are targeted only where there is suspicion of ties to the Liberation Tigers of Tamil Eelam, and the government had been making efforts to improve the situation for Tamils. She concluded that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”.

This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633.

Here, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38.

Even the Guidelines, expressly relying on this Court’s decision in Andrews, encourage an approach to discrimination that does not require evidence that the applicant will be personally targeted:

5.16. [Humanitarian and compassionate] and hardship: Factors in the country of origin to be considered

While [ss. 96 and 97] factors may not be considered, the decision-maker must take into account elements related to the hardships that affect the foreign national. Some examples of what those “hardships” may include are: […]

• discrimination which does not amount to persecution; […]

• adverse country conditions that have a direct negative impact on the applicant. […]

Discrimination

Discrimination is: A distinction based on the personal characteristics of an individual that results in some disadvantage to that individual.

In Andrews, [the] Court wrote:

“Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.”

(Inland Processing, s. 5.16)

In Kaur v. Canada (Citizenship and Immigration), 2022 FC 1483, Justice Brown reiterated that it is contrary to Kanthasamy to require that applicants provide corroroborating evidence that they would experience discrimination.

While there is a split in the jurisprudence on this, in Al-Aswadi v. Canada (Citizenship and Immigration), 2022 FC 1623, Justice Favel noted that:

To reiterate, it is an error for an officer to limit their assessment of hardship in an applicant’s home country to hardship connected to a personal characteristic. This error confuses the criteria applicable to an H&C application under subsection 25(1) of IRPA with those that define a person in need of protection under subsection 97(1) of IRPA (Marafa at para 4; Quiros v Canada (Citizenship and Immigration), 2021 FC 1412 at paras 30-31; Aboubacar v Canada (Citizenship and Immigration), 2014 FC 714 at para 4).

Ad-Hoc H&C Requests

As Justice Manson noted in Aryan v. Canada (Citizenship and Immigration), 2022 FC 152, while ordinarily H&C applications take the form of a parallel application accompanying a permanent residence application, H&C requests made ad hoc in the course of other imigration applications must be considered.