Appendix B – The Definition of Humanitarian and Compassionate (H&C) Considerations: The Request of the Foreign National [A25 (1)]

According to the provisions specified in subsection (1.2) of the Immigration and Refugee Protection Act (IRPA), the Minister would need to examine the circumstances concerning a foreign national based on a request from the foreign national. The foreign national would need to be an individual who:

• Is in Canada and has applied for permanent resident status and who is inadmissible (other than under sections 34, 35 and 37) or who does not meet the requirements of the Immigration and Refugee Protection Act (IRPA) or,
• Is outside Canada and has applied for a permanent resident visa (other than a foreign national who is inadmissible under sections 34, 35 and 37 of the Immigration and Refugee Protection Act (IRPA))

After examining the circumstances of the foreign national, the Minister could consider granting the foreign national an exemption from any:

• Applicable criteria specified in the Immigration and Refugee Protection Act (IRPA) or,
• Applicable obligations of the Immigration and Refugee Protection Act (IRPA)

However, the Minister would only do this if the Minister is of the opinion that humanitarian and compassionate (H&C) considerations relating to the foreign national justify the provision of this exemption. This is especially so when taking into account the best interests of a child directly affected.

The Restriction for a Designated Foreign National

The authorities have prohibited a designated foreign national from making a request to the Minister for humanitarian and compassionate (H&C) considerations if:

• The foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which the authorities make a final determination concerning the claim
• The foreign national has made an application for protection, until five years after the day on which the authorities make a final determination concerning the claim or,
• Five years after the day on which the authorities make a final determination concerning the claim have not elapsed (in any other situation)

The Suspension of the Request

The authorities have the ability to suspend the processing of a request of a foreign national, who, after making the request, has become a designated foreign national, if:

• The foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which the authorities make a final determination concerning the claim
• The foreign national has made an application for protection, until five years after the day on which the authorities make a final determination concerning the claim or,
• Five years after the day on which the authorities make a final determination concerning the claim have not elapsed (in any other situation)

The Refusal to Consider a Request

The Minister has the authority to refuse to consider a request for humanitarian and compassionate (H&C) considerations if:

• The designated foreign national fails, without any reasonable excuse, to comply with:
  • Any conditions that the authorities impose on them based on the provisions specified in subsection 58 (4) or,
  • Any conditions that the authorities impose on them based on the provisions specified in section 58.1 or,
  • Any conditions that the authorities impose on them based on the provisions specified in section 98.1 AND,
• A duration of less than 12 months has elapsed since the end of the applicable period referred to in case:
  • The foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which the authorities make a final determination concerning the claim
  • The foreign national has made an application for protection, until five years after the day on which the authorities make a final determination concerning the claim or,
  • Five years after the day on which the authorities make a final determination concerning the claim have not elapsed (in any other situation)

The Payment of Fees

The Minister will deal with a request for humanitarian and compassionate (H&C) considerations only once the applicant has paid all the applicable fees concerning that specific request.

The Exceptions (1,2)

The Minister has the authority to avoid examining the request for humanitarian and compassionate (H&C) considerations if:

• (a) The foreign national has already made such a request and the request is currently pending
  • In this scenario, the request must be for an exemption from any of the criteria or obligations of Division 0.1
• (b) The foreign national has made a claim for refugee protection that is currently pending before the Refugee Protection Division (RPD) or the Refugee Appeal Division (RAD) or,
• (c) Less than 12 months have passed since the foreign national’s claim for refugee protection was last:
  • Rejected
  • Determined to be withdrawn after the hearing of substantive evidence or,
  • Determined to be abandoned by the Refugee Protection Division (RPD) or the Refugee Appeal Division (RAD)
  • However, this situation would only apply when:
    • In the case of removal, the foreign nationals would experience a risk to their lives, because of the inability of each of their countries of nationality (or the country of their former habitual residence – in case they do not have a country of nationality) to provide adequate health or medical care or,
    • The removal of these foreign nationals would have an adverse effect on the best interests of a child directly affected

The Exception to Paragraph 1.2 (c)

It is worth noting that the exceptions specified in paragraph 1.2 (c) above, do not specify when:

• In the case of removal, the foreign nationals would experience a risk to their lives, because of the inability of each of their countries of nationality (or the country of their former habitual residence – in case they do not have a country of nationality) to provide adequate health or medical care or,
• The removal of these foreign nationals would have an adverse effect on the best interests of a child directly affected

The Non-Application of Certain Factors

Upon examining the request of a foreign national in Canada, the Minister has the authority to avoid considering the factors that officers typically consider in the determination of whether:

• A person is a Convention refugee under section 96 or,
• A person is in need of protection under subsection 97 (1)

In this situation, the Minister would consider the elements related to the hardships that affect the foreign national instead.

The Provincial Criteria

The Minister has the authority to not grant permanent resident status to a foreign national referred to in subsection 9 (1) in case the foreign national does not meet the provinces, selection criteria applicable to that foreign national.

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Source: Citizenship and Immigration