On December 10, 2015, the Supreme Court of Canada issued its most significant immigration judgment in almost twenty years.   Its decision in Kanthasamy v. Canada (Citizenship and Immigration) will likely result in visa officers assessing applications for Canadian permanent residence on humanitarian & compassionate grounds in a much more holistic and equitable manner than previously.

H&C Applications

People who would not normally be eligible to become permanent residents in Canada may apply to immigrate on humanitarian & compassionate  (“H&C”) grounds.  A typical H&C applicant is someone who does not meet the requirements of any of Canada’s economic or family reunification programs.  As well, applicants who do qualify for more traditional immigration programs, but who are inadmissible to Canada, may also request (with narrow exceptions) that their inadmissibility be waived for H&C reasons.

When visa officers review H&C applications, they analyze several factors, including the person’s establishment in Canada, their family ties to Canada, the best interests of any children involved, and what could happen to the applicants if their H&C applications are not granted.

Prior to Kanthasamy, the criterion for an H&C application was whether applicants would suffer “unusual and undeserved or disproportionate hardship” if their applications were refused.  Indeed, Citizenship and Immigration Canada’s guidelines on numerous occasions explicitly instructed officers that the assessment of a H&C application was a determination of whether the applicant met this test.  “Unusual and undeserved hardship” was defined as hardship that was not anticipated or addressed by immigration legislation, and was “beyond the person’s control.”  “Disproportionate hardship” was defined as an “unreasonable impact on the applicant due to their personal circumstances.”

Kanthasamy

In Kanthasamy, the Supreme Court of Canada found that while immigration officers should treat the “unusual and undeserved or disproportionate hardship” factors described above as descriptive,

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I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question:

What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?

The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary.

Joseph v. Canada

In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions:

1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act?

2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on removal are not those generally faced by others in their country of origin?

3) If the answer to question 2) is no, can the conditions in the country of origin support a reasoned inference as to the challenges any applicant would face on return to his or her country of origin, and thereby provide an evidentiary foundation for a meaningful, individualized analysis of hardships that will affect the applicant personally and directly as required by Kanthasamy v Canada (Citizenship and Immigration),

 » Read more about: Joseph v. Canada and the Difficulty of H&C Assessments  »

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Section 108 of the Immigration and Refugee Protection Act states that a person’s refugee protection chall cease when:

Rejection

108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:

(a) the person has voluntarily reavailed themself of the protection of their country of nationality;

(b) the person has voluntarily reacquired their nationality;

(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;

(d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or

(e) the reasons for which the person sought refugee protection have ceased to exist.

Cessation of refugee protection

(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).

Effect of decision

(3) If the application is allowed, the claim of the person is deemed to be rejected.

Exception

(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.

As previously noted on this blog:

Traditionally, the CBSA rarely initiated cessation proceedings because the loss of refugee status did not also lead to a loss of permanent residence status.  

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Last updated on September 13th, 2019

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.

The purpose of this post is to focus on the establishment factor.

Establishment in Canada

Immigration, Refugees and Citizenship Canada’s Guidelines (the “Guidelines“) 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?

 » Read more about: Humanitarian & Compassionate Applications – The Establishment Factor  »

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On April 25, I blogged about how the Federal Court had certified the following question involving s. 117(9)(d) of the Immigration and Refugee Protection Regulations (“R179(9)(d)”):

In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227?

On June 11, 2013, in Fang v. Canada (Citizenship and Immigration) (“Fang“), VB2-00332, Member Mattu of the Immigration Appeal Division (the “IAD“) issued a decision which raises similarly broad issues.  Andrew Wlodyka, the appellant’s counsel, has informed me that an Application for Leave to Commence Judicial Review is currently underway, as confirmed here, and I wouldn’t be surprised if the litigation resulted in a certified question.

The issue is whether the IAD has the jurisdiction to determine whether an officer breached procedural fairness in determining humanitarian & compassionate factors (“H&C“) under s. 25 of the Immigration and Refugee Protection Act (“IRPA“)  in an application where R117(9)(d) applies.

R117(9)(d) provides that a foreign national is not a member of the family class if (subject to certain exceptions) the foreign national’s sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application,

 » Read more about: The Jurisdiction of the IAD in Considering Procedural Fairness in 117(9)(d) Cases  »

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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.

 » Read more about: What is a Child?  »

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The Federal Court has confirmed that s. 65 of the Immigration and Refugee Protection Act requires that the Immigration Appeal Division determine whether an applicant is a member of the Family Class before considering humanitarian & compassionate considerations (“H&Cs“).

Accordingly, people appearing before the Immigration Appeal Division in a Family Class appeal should be prepared to prove that the applicant is a member of the family class before arguing H&Cs.  This is the case even if the visa officer did not make a determination, or made a negative determination, regarding membership in the Family Class.

For example, if a visa officer rejects a spousal-sponsorship application on the basis of criminality, then at the Immigration Appeal Division the appellant must be prepared to demonstrate bona fides of the relationship prior to analyzing the inadmissibility, and any H&Cs to overcome it.

 

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In Uddin v. Canada (Citizenship and Immigration), 2011 FC 1260, Justice Harrington rejected a judicial review of an immigration officer’s inside Canada spousal sponsorship.  While part of the decision dealt with procedural fairness, and the following interesting quote

One might wonder what duty one owes to a scofflaw who deliberately flaunts our laws and wallows back through the big muddy,

Justice Harrington also noted that the officer was not obligated to consider humanitarian & compassionate considerations because the applicant never requested that H&C considerations be considered in writing.

Regulation 66 of the Immigration and Refugee Protection Regulations states that:

A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.

As Justice Harrington noted, there was plenty of time for the immigration consultant in this case to submit a request in writing.  As he did not, there was no obligation on the officer to consider them.

 » Read more about: Court Reminder that Humanitarian & Compassionate Requests have to be in Writing  »

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Failed refugee claimants, and some other types of inadmissible people within Canada, often submit both Pre-Removal Risk Assessment (PRRA) applications, as well as Humanitarian & Compassionate (H&C) ones.

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On Saturday, August 14, Citizenship and Immigration Canada (“CIC“) released Ministers Instructions regarding proposed changes to the Immigrations and Refugee Protection Regulations (the “Regulations“) that will correspond to changes to humanitarian & compassionate (“H&C“) applications under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) that resulted from the Balanced Refugee Reform Act (“Bill C-11“).

The changes will impact H&C applications under IRPA s. 25, which provides that an individual who does not meet the eligibility requirements to apply within an immigration class may be granted permanent resident status or an exemption from any criteria under humanitarian and compassionate or public policy grounds.  Prior to Bill C-11, s. 25 stated:

25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or 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 obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

Provincial criteria

(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.2001, c. 27, s. 25; 2008, c. 28, s. 117.

As a result of Bill C-11, s. 25 will now read:

25.

 » Read more about: Ministers Instructions Resulting From Changes to s. 25 H&C Applications  »

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