Reconsideration of a Negative Humanitarian and Compassionate (H&C) Decision

The Humanitarian and Compassionate (H&C) Assessment – The Reconsideration of a Negative Humanitarian and Compassionate (H&C) Decision

Exceptional circumstances could warrant the reconsideration of a decision.

• Humanitarian and compassionate (H&C) Stage 1 approvals
  • A Stage 1 approval is an interim decision as the applicant usually does not receive the confirmation of permanent residence at this stage
  • In some cases, inadmissibility or other significant factors could come to light following a Stage 1 approval
  • In this scenario, the officers would need to take this information into account and if appropriate, they would need to revisit the Stage1 decision
  • In case the officers decided to revisit the Stage 1 approval, they would need to provide the applicant with an opportunity for providing submissions prior to making the decision of reversing the positive Stage 1 decision
  • In some situations, it might be possible to resolve the application at Stage 2 without returning to the original decision maker
  • In cases where this is both reasonable and practicable, the officers would need to resolve the application at Stage 2 without returning to the original decision maker
• The guidelines for reconsideration requests after refusal at Stages 1 or 2
  • It is worth highlighting that the legal doctrine of functus officio does not automatically bar reconsideration of final humanitarian and compassionate (H&C) decisions i.e. MCI v Kurukkal, 2010 FCA 230
  • As such, the decision maker has the ability to exercise discretion for reconsidering or refusing to reconsider the applicant’s request for reopening a previous decision
  • However, officers would need to consider reconsidering previous decisions only in exceptional cases
  • As such, an applicant’s dissatisfaction or disagreement with the decision would not, by itself, qualify as being an exceptional case
  • Officers would need to return reconsideration requests to the original decision maker whenever possible
  • In some cases, a local office of Citizenship and Immigration Canada (CIC) might have determined certain applications
  • In this scenario, the officers would need to send the request to the Backlog Reduction Office in Vancouver (BRO-V) for assignment
• Reviewing a request for reconsideration is a two-step process
  • As such, officers would need to:
    • Decide whether to re-open the case and consider the new evidence presented, even if the case is under litigation at the Federal Court and,
    • Review the new submissions and the original file, before deciding to change or retain the original decision (after deciding to reconsider)
• The factors to consider when deciding whether to reconsider
  • Based on the information submitted, the officers would first need to determine whether the case warrants a reconsideration of a previous humanitarian and compassionate (H&C) decision
  • The applicant bears the responsibility for satisfying the officer that the case warrants a reconsideration
  • Officers would need to consider all relevant factors and circumstances for determining whether the case merits reconsideration
  • Some factors that the officers could consider relevant for warranting a reconsideration include:
    • Situations where the decision maker failed to comply with the principles of natural justice or procedural fairness when making the decision
    • Situations where the applicant has requested correction of a clerical or other error e.g. an officer who did not have the delegated authority made the decision
    • In the event of the applicant submitting new evidence, the officers would need to consider whether the new evidence is based on new facts
      • New facts would typically denote facts that arose after the authorities made the original decision and communicated it to the applicant
      • In addition, the officers would need to consider whether the new evidence is material and reliable
      • Officers would also need to decide whether the authorities would consider the new evidence more appropriately in the context of a new application
    • Situations where the applicant presents additional evidence that was available at the time of the original decision
      • In this scenario, the officers would need to consider why the applicant did not submit the evidence at the time of the original application
      • In addition, they would need to determine whether that evidence is material and reliable
    • The passage of time between the date of the original decision and the date of the reconsideration
    • The existence of any concerns regarding fraud or misrepresentation relating to a material fact in the original decision or with the new submissions and,
    • In some situations, the case might receive a negative decision from the Federal Court after a judicial review
      • In this scenario, the officers would need to refuse to reopen the case, if there are no extenuating factors that warrant reconsideration
• After deciding whether or not to reconsider
  • If the officers decide to reconsider, they would need to:
    • Reopen the first humanitarian and compassionate (H&C) decision
    • Request information from the applicant i.e. medical, procedural fairness letter etc. and,
    • Make a new decision and send the approval or refusal letter Stage 1
  • If the officers decide not to reconsider, they would need to inform the applicant
    • They would need to refer to the original refusal for explaining the refusal
    • This is because the officers would have already informed the applicant of the reasons for refusing their application the first time round
  • Thereafter, the officers would need to record the reasons for granting or refusing the reopening request based on the submissions reviewed
  • For instance, a decision could typically reflect the following reasons:
    • The passage of time
    • New information not previously submitted or,
    • A procedural fairness error
  • Officers would need to consider whether the case warrants a detailed analysis on a case-by-case basis based on factors such as:
    • Whether the officers decided to reopen the decision
    • The kind of submissions