Last Updated on August 29, 2016
The Minister’s Own Initiative
On the Minister’s own initiative, the Minister might consider examining the circumstances of a foreign national who:
- Is inadmissible (for reasons other than those specified in sections 34, 35 or 37) or,
- Does not meet the requirements of the Immigration and Refugee Protection Act (IRPA)
Based on the circumstances of the case, the Minister could decide to grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations specified by the Immigration and Refugee Protection Act (IRPA). This is especially so, if the Minister is of the opinion that various humanitarian and compassionate (H&C) considerations relating to the foreign national warrant this treatment. In many cases, the Minister would take into account the best interests of a child directly affected.
The Minister could provide an exemption to the foreign national from the payment of any applicable fees as well. This is especially so in respect of their examination of the foreign national’s circumstances.
The Provincial Criteria
The Minister might not grant permanent resident status to a foreign national referred to in subsection 9 (1). This is especially so if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
The Humanitarian and Compassionate (H&C) Assessment
It is worth highlighting that the type or quantum of relief provided would vary from case to case. In many cases, this would depend on the facts and the context of the case. However, officers making humanitarian and compassionate (H&C) considerations would need to substantively consider and weigh all the relevant facts and factors before the. This is especially so in accordance with the facts associated with the following cases:
- Kanthasamy v. Canada (Citizenship and Immigration) 2015 SCC 61 and,
- Baker v. Canada (Minister of Citizenship and Immigration)  2 S C R 817
In addition, the officers would need to ensure that they do not consider individual humanitarian and compassionate (H&C) factors in isolation. In other words, they would need to ensure the global assessment of all the relevant factors.
Subsection 25 (1) specifies the standards that these officers would need to apply. In other words, officers would need to ascertain whether the case justifies the provision of relief on the grounds of various humanitarian and compassionate (H&C) considerations relating to the foreign national. In addition, they would need to take into account the best interests of a child directly affected.
The sections that follow highlight some of the numerous considerations that officers would need to be mindful of when they process humanitarian and compassionate (H&C) applications.
Humanitarian and Compassionate (H&C) Assessment – The Balance Between Discretion and Consistency
The authorities believe that effective decision-making in humanitarian and compassionate (H&C) cases involves striking a balance between certainty and consistency. In addition, it involves having the flexibility needed for dealing with the specific facts of a case as well. In addition to the legislation, the decision makers would need to use the following documents for determining when and how they would need to exercise discretion in keeping with the intentions of the policy:
- Policy statements
- Manuals and,
Referring to these documents as and when needed would be of legitimate help in guiding decision makers in their work.
- This balance applies to applications made in Canada and overseas
- It is worth highlighting that policy guidelines such as these will provide some assistance to decision makers
- But, these guidelines are, in many cases, neither exhaustive or restrictive
- The provisions specified in the Immigration and Refugee Protection Act (IRPA) or the Immigration and Refugee Protection Regulations (IRPR) are legally binding
- But, the provisions specified in these policy guidelines are not legally binding
- Therefore, decision makers should not fetter their discretion by treating them as if they were mandatory requirements
- For more details, officers would need to review the case Thamotharem v. Canada (Minister of Citizenship and Immigration): 2007 CaswellNat 1391; 2007 FCA
Humanitarian and Compassionate (H&C) Assessment – The Onus on Applicant
The authorities have placed the entire onus upon the applicant to be clear in the submission as to exactly what kind of hardships the applicants would face if the authorities did not grant them the requested exemptions. As such, officers would not need to:
- Elicit information on various humanitarian and compassionate (H&C) factors and,
- Satisfy applicants that such grounds do not exist
However, applicants would need to put forward any humanitarian and compassionate (H&C) factors that they believe are relevant to their cases.
- This specification applies to applications made in Canada and overseas
Humanitarian and Compassionate (H&C) Assessment – The Threshold of Proof
The authorities require officers to do fact finding using the standard of proof typically used in administrative law. In particular, they would like officers to focus on the balance of improbabilities i.e. is it more likely than not that the evidence or information presented is true.
In many cases, the officers would need to use a lower standard of proof as well for assessing the inadmissibility of applicants. This constitutes the concept of reasonable grounds to believe. It is worth highlighting the provisions specified in A33 of the Immigration and Refugee Protection Act (IRPA) that states:
“The facts that constitute inadmissibility under A34 to A37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.”
By using these standards of proof, officers would be able to determine all the elements of the case. Thereafter, they would need to assess all the facts in the application. This would enable them to decide whether a refusal to grant the request for an exemption would, more likely than not, result in unusual and undeserved (or disproportionate) hardship.
- This specification applies to applications made in Canada and overseas
Humanitarian and Compassionate (H&C) Assessment – The Requirement to Apply for Permanent Residence from Outside Canada
One of the cornerstones of the Immigration and Refugee Protection Act (IRPA) specifies that foreign nationals wishing to live permanently in Canada would need to do both of the following before they arrive in Canada:
- Submit their applications outside Canada and,
- Qualify for and obtain permanent resident visas
It is worth mentioning that foreign nationals do not have the right to apply for permanent residence from within Canada. They can only do this based on the exceptions provided in the legislation. Some foreign nationals might not qualify to apply for permanent residence from within Canada under the provisions specified in the Immigration and Refugee Protection Act (IRPA). These individuals would need to request for an exemption from the requirement of having to be a member of the class referred to in R72 (2).
The provisions specified in A25 (1) provide the flexibility for granting exemptions to approve deserving cases that the legislation did not anticipate. As such, officers would be able to process these applications for permanent residence from within Canada.
This specification applies to applications made in Canada and oversea.