August 18, 2021

Two Mistakes in Canadian Humanitarian and Compassionate Applications

We challenge a number of negative decisions from requests for permanent residence on Humanitarian and Compassionate (“H&C”) grounds pursuant to section 25 of the Immigration and Refugee Protection Act.  We also file a number of applications for H&C relief often totalling hundreds of pages, comprehensively setting out a series of critical and compelling factors that merit careful assessment.  For today’s blog I thought about looking at two common mistakes we see officers commit that are often challenged in Court or should be addressed in primary submissions.

Procedural Fairness and Errors of Law

First, a number of important questions to ask under this heading.  Did the Officer fail to raise concerns about an applicant’s credibility?  Was any assessment of the applicable law inaccurate?  Did the officer fail to appreciate any change of the law and the unknowing consequences which flowed, that were unforeseeable to the applicant?

Where an officer’s decision is rooted in a credibility concern rather than sufficiency of the evidence submitted in an application in satisfaction of the Respondent’s Document Checklist, the concern should be raised with the applicant. The duty of procedural fairness requires a reasonable opportunity to respond and provide further information to address an officer’s concern with “the credibility, the veracity, or the authenticity of the documentation provided by the applicant.”

The Respondent’s Manuals direct that “if credibility is central to the decision, then interview the applicant.” See for example Egheoma v. Canada (M.C.I.), 2016 FC 1164, pars. 12-15, Bajwa v. Canada (M.I.R.C.), 2017 FC 202, pars. 62-65 and “Humanitarian and Compassionate: Administrative law principles to guide H&C decision-making,” Government of Canada online (date modified 24 July 2014): <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/humanitarian-compassionate-consideration/administrative-law-principles-guide-decision-making.html>

If for example an officer’s flawed understanding of the law was used to undermine an Applicant’s credibility as held by the Court in Henson, here, “the positive factors ended up being filtered out through the prism of earlier conduct that required recourse to the H&C application in the first place […] As a result of viewing the application through this lens, the H&C remedy, one which is available in the immigration forest, was lost amongst the trees.” Henson v. Canada (M.C.I.), 2018 FC 1218, par. 38

Unreasonable assessment of evidence, ignored or misapprehended by the officer

Second, if an officer neglects to assess the evidence which spoke to his establishment, ties to Canada, and hardship of return financially, socially and physically these factors can all be live issues. For example, if an officer set a requisite standard of “exceptional” establishment to justify hardship of removal without defining the standard this can be contrary to the jurisprudence.  The Federal Court has held that requiring an applicant to demonstrate an “exceptional” level of establishment, without providing any indication of what would be considered “exceptional” establishment, renders a decision unreasonable. See Chandidas v. Canada (M.C.I.), 2013 FC 258, par. 80 and Henson, above, pars. 28-32

Another example is with respect to ties in the home country.  In Epstein, this Court found that officers cannot disregard personal circumstances; in particular, significant evidence of an applicant’s emotional and human dependency on family in Canada when there has been a fundamental change in life.  See Epstein v. Canada (M.C.I.), 2015 FC 1201, pars. 13-16 Ultimately did the officer’s assessment demonstrate “any appreciation of the Chirwa approach” as endorsed by the Supreme Court of Canada in Kanthasamy 2015 3 SCR 909 and subsequent jurisprudence in deciding the case.

These two broad issues are just the tip of the iceberg when dealing with H&C applications as they are amongst the most complicated cases to prepare and in certain cases litigate.  As applications of last resort, they really end up being all or nothing applications in terms of result. So, if contemplating challenging a refusal or making an H&C application it is important to be properly and fully represented.  If you would like to learn more about H&C applications click here, or if you want to contact us, click here.

As always, thank you for reading and please stay safe.