Last Updated on February 25, 2017
Officers would need to consider inadmissibilities at the stage at which the decision maker comes to know about them. In addition, officers would need to consider these inadmissibilities in the overall context of the Humanitarian and Compassionate (H&C) factors that the applicant typically puts forward. In other words, the officers would need to assess whether the Humanitarian and Compassionate (H&C) factors that the applicant has put forward are sufficient to justify granting a waiver of the inadmissibility. This is why officers need to assess any known inadmissibilities. Thereafter, they would need to grant the exemptions request, refuse the request or refer the case to the delegated decision maker for the consideration of the exemption.
For instance, consider a situation where an applicant requests an exemption from a medical inadmissibility. At the time of the Stage 1 assessment, the decision maker would typically be aware of the inadmissibility of the applicant. So, the decision maker would need to consider granting an exemption from the medical inadmissibility at that time.
Situations could arise where the applicant requires more than one exemption. Similarly, in some situations, there might be more than one delegated decision maker. In this scenario, the higher authority would need to decide on all the inadmissibilities of the applicant.
The Procedures for Specific Inadmissibilities
Humanitarian and Compassionate (H&C) Cases – Criminal Inadmissibilities i.e. A36 (1) and A36 (2)
Officers would need to assess whether the known inadmissibility outweighs the various Humanitarian and Compassionate (H&C) factors applicable in the case. For instance, consider a situation where the applicant has a criminal conviction. In this case, the officers would need to assess whether the criminal conviction outweighs the applicable Humanitarian and Compassionate (H&C) factors.
In addition, they would need to consider other factors as well. For instance, they would need to consider factors such as the applicant’s actions, including those that led to and followed the conviction. This would typically include:
The length of the criminal conviction
The sentence imposed
The length of time since the conviction
Whether the conviction is an isolated incident or part of a pattern of criminality and,
Any other pertinent information about the circumstances of the crime
Situations could arise where the officers might feel that the applicant is a danger to the public. In this scenario, they would need to seek the assistance of the Rehabilitation Division in the Case Management Branch (CMB). The Case Management Branch (CMB) can help equate criminal convictions from outside of Canada.
If the officers find that no grounds justify the granting of a positive decision, they would need to refuse the application. Similarly, situations could arise where the officers find grounds that warrant a positive decision. In addition, they might find that the case has no other negative factors. In these instances, the officers would need to:
Make a Stage 1 decision or,
Refer the application to a delegated decision maker
In some cases, the officers might find that the applicant has outstanding criminal charges that fall under the provisions specified in A36 (1) or A36 (2) i.e. serious criminality or criminality. In this scenario, based on the circumstances of the case, the officers would need to take one of the following measures:
They would need to assess the Humanitarian and Compassionate (H&C) application
If the officers do not find valid grounds for giving a positive decision, they would need to refuse the application or,
If the officers come across various grounds for a positive Humanitarian and Compassionate (H&C) decision and they find that there are no other negative factors applicable, they would need to wait for the outcome of the criminal charges before making a decision
Situations could arise where the officers discover criminal charges against the applicant or any family member at Stage 2. In many of these cases, the officers might find that the authorities have not yet made a final decision. In this scenario, the officers would need to delay the final decision or the scheduling of an appointment for the confirmation of permanent residence. They would need to do this until they have the results of the criminal charges before them.
- Medical Inadmissibility A38 (1)
- Quebec Cases
- H&C Cases – The Inadmissibility of Family Members (A42)
- H&C Cases – For Cases Involving Financial Inadmissibility i.e. Social Assistance (A39)