Hardship and the Humanitarian and Compassionate (H&C) Assessment

Humanitarian and Compassionate (H&C) Assessment – The Hardship and the Humanitarian and Compassionate (H&C) Assessment

As of December 10, 2015, there are no hardship tests for applicants based on the provisions specified in subsection 25 (1). However, when officers determine whether the case possesses sufficient grounds for justifying granting a humanitarian and compassionate (H&C) request, they would need to include an assessment of hardship.

This is why hardship continues to be an important consideration for determining whether sufficient humanitarian and compassionate (H&C) considerations exist for the authorities to justify granting an exemption and / or permanent resident status.

In many cases, the officers could find that hardship will typically arise because of the requirements specified in section 11. This requirement expects foreign nationals to apply for permanent resident visas before entering Canada.  In other words, decision makers would need to consider the extent to which the applicant would face hardship if the applicant had to leave Canada to apply for permanent residence abroad, given the applicant’s specific circumstances.

It goes without saying that leaving Canada would involve some inevitable hardships anyway. However, this alone would not generally be sufficient for warranting the provision of relief on humanitarian and compassionate (H&C) grounds. This is in accordance with the provisions specified in subsection 25 (1) that refers to the following cases:

• Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 and,
• Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463

Applicants have the ability to request for exemptions from other requirements specified in the Immigration and Refugee Protection Act (IRPA) or the Immigration and Refugee Protection Regulations (IRPR). In these cases, the decision makers would consider the hardships the applicant faces, in case the authorities do not grant the request exemption.

The Limitation on the Assessment of Risk in an In-Canada Application

Subsection 25 (1.3) of the Immigration and Refugee Protection Act (IRPA) states:

“the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”.

Based on this definition, officers do not need to determine the establishment of a well-founded:

• Fear of persecution
• Risk to life
• Danger of torture and,
• Risk of cruel and unusual treatment or punishment

However, they would need to take the various underlying facts into account for determining whether the applicant could face hardships if the authorities decide to return the applicant to the country of origin.

It is worth highlighting here that subsection 25 (1.3) applies only to humanitarian and compassionate (H&C) applications made in Canada.

The Factors to Consider in Humanitarian and Compassionate (H&C) Assessment

Applicants would need to base their requests for humanitarian and compassionate (H&C) consideration on any relevant factors. These factors would typically include, but not be limited to:

• The establishment in Canada for in-Canada applications
• The ties to Canada
• The best interests of any children directly affected by the humanitarian and compassionate (H&C) decision
• The factors in the applicant’s country of origin including adverse country conditions
• The health considerations including the inability of a country to provide medical treatment
• The considerations over family violence
• The consequences of the separation of relatives
• The ascertaining of whether the applicant’s inability to leave Canada has led to the applicant’s establishment – specifically in the case of applicants in Canada
• The ability to establish in Canada for overseas applications and,
• Any unique or exceptional circumstances that might merit relief

It is worth highlighting that decision makers are not limited to assessing factors submitted by applicants. As such, they would need to consider and weigh all information before them. This would include, for instance, the applicant’s immigration history or criminal record.

The Additional Considerations in Overseas Processing

In situations having an overseas context, the decision makers would need to consider the applicant’s circumstances relative to others living in their country, when they consider whether sufficient humanitarian and compassionate (H&C) grounds exist that justify the granting of an exemption. It is worth noting that this assessment is not merely a comparison of life in Canada versus life in the country of origin. Rather, it is an assessment of the hardship that would result if the authorities do not grant the applicant an exemption or a permanent resident visa.

The Adverse Country Conditions

Applicants would typically submit information claiming that conditions in their countries of origin would result in hardship if the authorities did not grant them the exemptions requested for. In this scenario, the decision makers would need to consider the conditions in that specific country. Thereafter, they would need to balance these factors into the hardship assessment. Adverse country conditions could include factors that have a direct, negative effect on the applicant such as:

• War
• Natural disasters
• Unfair treatment of minorities
• Political instability
• Lack of employment and,
• Widespread violence

The authorities have placed the onus on the applicant to provide information that supports the claim of adverse country conditions. Therefore, the decision makers would need to assess these applications that cite the presence of adverse country conditions. Subsequently, the decision makers would need to look at the submissions of the applicant. This would enable them to determine whether the situation warrants redressal and / or relocation.

The Assessment of Discrimination

Another aspect that the decision makers would need to consider is whether discrimination would affect an applicant. For this, the applicants would need to show that they are members of a group that is discriminated against. Once the applicants show this, the decision makers would be able to make an inference of discrimination.

In addition, subsection 25 (1) highlights that evidence of discrimination as experienced by others who share the applicant’s profile has great relevance as well. This is regardless of whether or not the applicant can provide evidence that shows that the applicant has been targeted personally.

The Inability of a Country to Provide Medical Treatment

In certain situations, the officers could come across applicants who allege that they would suffer hardship if the authorities were to return them to their countries of origin because of certain medical conditions. Typically, these cases would involve applications in Canada. In this scenario, the decision makers would need to be satisfied that:

• The applicants require the treatment and,
• The treatment is not available in the applicants’ countries of origin

As such, the onus remains on the applicant to provide:

• Documentary evidence from the applicant’s doctors confirming that the applicant has:
  • Been diagnosed with the condition,
  • Been receiving the appropriate treatment for the condition diagnosed and,
  • A vital need for receiving treatment for the condition diagnosed to maintain the individual’s physical or mental well-being and,
• Confirmation from the relevant health authorities in the country of origin that attest to the fact that an acceptable treatment is unavailable in the applicant’s country of origin

For more details, the officers would need to consider related information about suspected or known health inadmissibility (refer to Notes). This is in accordance with the provisions specified in A38. Refer to the section titled ‘Medical Inadmissibility A38 (1)’ that follows subsequently in this document.

The decision makers are responsible for substantiating the applicant’s claims. As such, they would need to access reliable and unbiased internet resources for information on medical care available in the country of origin. For instance, this could comprise:

• The UK Home Office Country of Origin Reports
• The World Health Organisation
• UNAIDS (for HIV cases) and,
• The International Organisation for Migration

Note:

• The authorities believe that the knowledge of country conditions is essential for decision makers to make objective, reasoned and consistent decisions for some types of cases
• For instance, this information could be useful in applications involving:
  • Refugees
  • Humanitarian and Compassionate (H&C) cases and,
  • Pre Removal Risk Assessment (PRRA) cases
• In addition, this information could be important in the context of interventions at the refugee determination hearings of in-Canada claimants
• In almost all cases, country conditions information is vital for:
  • Asking relevant questions during the interviews
  • Evaluating the information elicited objectively and,
  • Assessing the credibility of the applicant
• As such, decision makers would need to consult country condition information regularly as this information could keep changing

In some cases, obtaining client consent could be important. This is especially so if the authorities require case specific information from various third parties. In addition, the authorities will need to disclose evidence gathered for countering the applicant’s submissions to the applicant. Moreover, they would need to give the applicant ample time and opportunity for framing a response as well (refer to the section titled ‘The Process for Medical Refusals’ that follows subsequently in this document).

Situations could arise where the decision makers find that medical services are readily available in the country of origin that the applicant could access. In this scenario, they would need to consider this fact in the analysis of hardship. Therefore, the applicant cannot refuse to access those services for supporting a claim for hardship in the humanitarian and compassionate (H&C) application. Decision makers would assess hardship based on all of the evidence of services available to the applicant.

In some cases, the applicant might acknowledge that the treatment is available. But, the applicant might also add that the treatment available comes at a prohibitively high cost. Or, the applicant might specify that the treatment itself, the hospital conditions or the availability of medicines might be inadequate or substandard. Decision makers would need to take these details into account. In addition, they would need to weigh these in balance with all the other humanitarian and compassionate (H&C) factors. It is worth highlighting that the decision makers could still give a positive consideration in such cases if other positive factors are evident in the applicant’s submissions.

In some situations, the decision makers might be satisfied that an applicant would suffer hardship on account of a medical condition, if they were to be returned to the country of origin. In this scenario, the decision makers would need to weigh in this factor (as well as other positive factors) against any negative factors. Positive factors could comprise:

• The evidence of establishment in Canada
• The lack of family ties in the country of origin and,
• The best interests of the child considerations

Similarly, negative factors could comprise the existence of any inadmissibility etc.

Situations could arise where officers find positive consideration warranted, but a serious inadmissibility exists as well. In this scenario, the decision makers would need to forward the case to the delegated decision maker for a Stage 1 assessment.

The Options for Applicants to Mitigate Hardships

In some situations, the decision makers would need to consider whether the applicant can reduce hardship by:

• Relocating within their country of origin or,
• Seeking redressal

The availability of redress and relocation are important. However, the authorities do not consider them to be necessarily determinative factors in the assessment of hardship. It is worth highlighting that the assessment of the humanitarian and compassionate (H&C) application typically focuses on a global assessment of factors presented in the application.

The two options that applicants could seek the recourse of include:

• Redress
  • Decision makers could conclude that a claim of hardship has ample validity
  • In this scenario, they would need to consider the various avenues for recourse or other forms of prevention or redress that exist in the applicant’s country of origin
  • For this, they would need to determine the manner in which traditional state bodies like the police and courts typically operate
  • In addition, they would need to include an investigation of the presence and effectiveness of the following organisations:
    • Human rights tribunals
    • Civil society organisations
    • Political parties and,
    • Other special interest lobby groups or rights activist bodies
  • Lastly, they would need to make a determination of the freeness with which other types of non-governmental organisations, which could have an interest in the applicant’s case, operate within the country
• Relocation
  • Situations could arise where applicants for humanitarian and compassionate (H&C) consideration could face hardship in one part of the country of origin
  • However, the authorities could reasonably expect these individuals to seek relief at some other place within that country
  • In this scenario, the decision makers could determine that undue hardship does not exist because the applicant could eliminate the hardship through relocation
  • Another option that exists for such individuals could involve relocation outside the country of citizenship
  • This is especially so for people who are citizens of countries that have entered into bilateral or multilateral agreements with neighbouring countries
  • These countries typically permit mobility with respect to travel, extended sojourn, employment and study
  • Examples of such regional agreements could include the Schengen Agreement that applies to several countries in the European Union (EU)

The Process for Medical Refusals

Some applicants might have cases where the provisions specified in IMM 5365B apply. Some of these cases would have a medical profile of inadmissibility as well. In this scenario, the officers would need to permit the applicants to respond. Thereafter, the officers would need to ensure that they follow the procedures given below.

• The medical officer would need to send a copy of the medical record and the Medical Notification i.e. IMM 5365B to the visa or immigration officer
  • This would not need to include x-rays
• Situations could emerge where the health condition of the applicant or the applicant’s family members could be likely to cause a danger to public health or public safety
  • In this scenario, the visa or immigration officer would need to notify the principal applicant of the medical results using the model Procedural Fairness Letter – medical refusals
  • For more information, readers would need to view the relevant section on the website of Citizenship and Immigration Canada (CIC) titled ‘Danger to Public Health and Safety’
• Similarly, situations could arise where the health condition of the applicant or the applicant’s family members might reasonably lead to an excessive demand on health i.e. out-patient medication and / or social services
  • In this scenario, the officers would need to notify the applicant by using the model Procedural Fairness Letter i.e. the medical refusal excessive demand cases
  • In addition, the officers would need to provide the applicant with the Declaration of Ability and Intent template
  • For more information, readers would need to view the relevant section on the website of Citizenship and Immigration Canada (CIC) titled ‘Excessive Demand on Health and Social Services’
• The officers would provide a minimum of 60 days from the date of the above-referenced letter of notification to the applicant for responding
• The visa or immigration officer would need to forward any new information that the applicant provides to the appropriate medical officers, using the form Letter to Medical Officer (from the visa or immigration officer) about New Medical Information in Procedural Fairness Cases
• Situations could arise where the applicant does not supply any additional documentation or information within the prescribed timeframes
  • In this scenario, the visa or immigration officer would need to refuse the application

It is worth mentioning that the applicants would need to:

• Provide any additional documentation or information that could be relevant to their application
• Pay any fees charged by doctors or other professionals that they have consulted for submitting additional information and,
• Respond to the visa office within the time allocated

In many cases, the applicants would provide new information within the 60-day period for challenging the medical opinion. In addition, they might even provide a mitigation plan. In this scenario, the medical officer would need to review the new information under Procedural Fairness and:

• Confirm the initial medical opinion or,
• Withdraw the existing medical opinion and re-open the assessment process thereby resulting in the formulation of a new medical opinion