Permanent Residence Alternatives H and C By Robin Seligman, Barrister & Solicitor and Cheryl Robinson, Barrister and Solicitor

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1 Workshop 3C CLE May 13, 2011 Permanent Residence Alternatives H and C By Robin Seligman, Barrister & Solicitor and Cheryl Robinson, Barrister and Solicitor The application of humanitarian and compassionate ( H&C ) factors have been an effective means to overcome various inadmissibility issues and non compliance with the terms of the Immigration and Refugee Protection Act ( IRPA ). However, with the introduction of the Balanced Refugee Reform Act and the accompanying new Immigration Policy Manual IP 5 ( IP 5 ), the boundaries limiting this discretionary measure have tightened. The Source: Section 25(1) of IRPA is the source of the H&C discretion. The text provides that: The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. [Emphasis added] As before, s. 25 has a broad scope it has the potential to apply to almost anything in IRPA. Beyond the discrete application for permanent residence from within Canada, H&C factors may

2 be applied against both inadmissibility and eligibility issues for those who do not qualify for immigration under IRPA. This provision is only triggered by the request of a foreign national the new s.25 has eliminated the element of Minister s own initiative as a means to apply H&C discretion. Of note, the Minister must examine the circumstances concerning the foreign national when requested by an applicant in Canada, but may perform a similar examination upon receipt of a request by a foreign national outside of Canada, a differentiation that has significant impact upon family reunification through overseas H&C application. The element of public policy considerations remain as part of s.25, but separated from s.25 (1). S. 25.2(1) stipulates that: The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by public policy considerations. The Balanced Refugee Reform Act has also brought additional limiting elements to the availability of the discretion in s. 25 of IRPA, including the payment of fees in full as a prerequisite to the application of s.25 discretion (s.25 (1.1)). An exception preventing concurrent processing of applications requesting H&C discretion has been added to the legislation (s. 25(1.2)), as has a limitation on the application of s. 96 and s. 97 refugee factors (s. 25(1.3)). Interpretation of hardship: CIC officers and the Federal Court:

3 For inland cases, the IP 5 manual governs the determination of applications made from within Canada on H&C grounds. A new IP 5 manual was released to elucidate the changed s. 25 in April As outlined in the new IP 5 manual: The purpose of H&C discretion is to allow flexibility to approve deserving cases not covered by the legislation. This discretionary tool is intended to uphold Canada s humanitarian tradition. Use of this discretion should not be seen as conflicting with other parts of the Act or Regulations but rather as a complementary provision enhancing the attainment of the objectives of the Act. The H&C decision making process is a highly discretionary one that considers whether a special grant of an exemption from a requirement of the Act is warranted. It is widely understood that invoking Subsection 25(1) is an exceptional measure and not simply an alternate means of applying for permanent resident status in Canada. A humanitarian and compassionate assessment considers circumstances and/or factors that may be sufficiently compelling to allow for the requested exemption. The test by which hardship is assessed has been established by the Federal Court as unusual, undeserved or disproportionate hardship. The Federal Court has held the concept of hardship in an H&C application is much more expansive than the risk of persecution, life or security as assessed in a Pre Removal Risk Assessment ( PRRA ) [Melchor v Canada (MCI) 2004 FC 1327].

4 An applicant may experience undue hardship in the country of origin, even where the risk does not amount to risk to life or security and falls below that threshold [Pinter v Canada (MCI) 2005 FC 296]. According to the new IP 5, this hardship will be determined as a result of a global assessment of H&C considerations put forth by the application a weighing together of all the H&C considerations submitted by the Applicant. There are many factors which can be cited in an H&C application (see below). It is important to note however, that there are no determinative factors for the processing of an H&C application for example, best interest of the child, the presence of a marriage or common law relationship are not automatic grounds for a positive decision. Checklist: Persuasive factors for H&C application: Ties to Canada, including establishment o Establishment through long residence through no fault of the applicant is especially persuasive o Connection to community o Friends in Canada o Former PR status Family in Canada o Connections between family members emotional and financial support etc o Hardship that a negative decision would impose upon a claimant or close family members o Providing care for elderly or sick family members

5 o Family members with PR status or citizenship o Spouse or common law partner Best interests of any children affected by the H&C application (to be considered where child is under 18 years of age at time that application is received) o Emotional needs and welfare o Impact of loss of parent / access to both parents o Education and health o Lack of knowledge / length of time away from country of origin o Country conditions as directly pertaining to child, including matters related to child s gender o Custody issues o Social, cultural, medical (including any special needs) and physical welfare o Age of the child o Dependency between child and applicant o Establishment in Canada Factors in country of origin so long as it doesn t amount to persecution as described in s. 96/97 Medical inadequacies of country of origin o Mental health considerations such as PTSD o Physical health Family violence considerations Employment history and prospects

6 Financial ties to Canada o Business o Purchase of property or residence Lack of ties to home country (family, economic, residential) Civil record in Canada Volunteer work Other hardship factors, including sexuality, forced military service, ethnicity, religion, harassment so long as it doesn t amount to persecution or s. 96/97 factors Factors to be excluded from post June 29, 2010 H&C application: Under the new s. 25(1) of IRPA, factors that are deemed to pertain to s. 96 (Convention refugee) and s. 97 (person in need of protection) will be excluded from consideration by an H&C inland officer. Section 25(1.3): Non application of certain factors states that: In examining the request of a foreign national in Canada, 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. As noted in IP 5, applications received before June 29, 2010 (Royal Assent of the Balanced Refugee Reform Act) will continue to have s. 96 and 97 risks assessed within the concept of

7 hardship. Where new information has been submitted in support of an application filed before June 29, 2010, the application will be continue to be assessed according to the terms of pre Royal Assent s. 25 regardless of whether the new information cites s. 96/97 risk and was received after June 29, As before, PRRA units will continue to make the decisions on pre June 29, 2010 H&C applications that cite risk factors. However, applications received after June 29, 2010 which cite risks that fall under s.96 and s.97 will be still assessed however those risks will not be taken into consideration in the final decision. Administratively, cases which raise issues of discrimination will be transferred to PM 4 Public Service level officers (the successors to PRRA officers these officers will be specially trained at evaluating country conditions.). H&C applications that do not raise discrimination issues will be dealt with by Inland Services officers. Although factors in the applicant s country of origin may be considered, the consideration is limited to hardships not described in s. 96/97 this may include harassment, medical inadequacies and discrimination that do not amount to persecution. The IP 5 manual indicates that foreign nationals who claim risk will be advised in writing that such claims are addressed through Canada s refugee system or PRRA, and not via an H&C application. It is still unclear what happens if an H&C applicant provides clear evidence of persecution or meets the definition of a refugee or person in need of protection would these risks simply be ignored by the decision maker or would they be reassessed as hardships? It is not impossible to envision a scenario where worsening country conditions lead to a new or increased risk of persecution even where a refugee claim has been previously denied on that basis. In addition,

8 should applicants refrain from producing the strongest evidence possible for fear of actually meeting the definition of convention refugee and this being told their evidence cannot be considered in their H & C application? In these cases it is likely that the PRRA process would have to be used to address risk. How Generalized Violence May Constitute Hardship This following pertains to the concept of how generalized violence can constitute hardship. In the recent decision in Dezameau V. Canada, 2010 FC 559, rendered May 27 th, 2010,, Justice Pinard was dealing within a refugee law context. However his decision pertains to the generalized fear of rape by women in Haiti. He states: [24] This is explicitly set out in the Chairperson s Guideline 4, Women Refugee Claimants Fearing Gender Related Persecution, Immigration and Refugee Board of Canada: The fact that violence, including sexual violence and domestic violence, against women is universal is irrelevant when determining whether rape, and other gender specific crimes constitute forms of persecution. The real issues are whether the violence experienced or feared is a serious violation of a fundamental human right for a Convention ground and in what circumstances can the risk of that violence be said to result from a failure of state protection. [Emphasis in original.] [26] Furthermore, a gender related crime cannot be rejected because women face general oppression and the applicant s fear of persecution is not supported by an individualized set of facts (see the Federal Court of Appeal s decision in Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (Salibian)). Where the applicant has not, herself, experienced the type of persecution she fears, the applicant can use evidence of similarly situated persons to demonstrate the risk and the unwillingness or inability of the state to protect. This is also expressly set out in the Gender Guidelines. [30] I note that the Board understood the applicant to fear being a target of violence, kidnapping and rape, given the current situation for all women in Haiti and made the following two findings. First, that the risks the applicant fears arise from general criminality:

9 It is also well established that in an H&C context, it is not a pre requisite that an applicant be personally targeted. Sadikh Ba v. Canada (Citizenship and Immigration), 2009 FC 287 (CanLII) Here the court refers to the case of Sahota, and states: [7] While PRRA and H&C applications take risk into account, the manner in which they are assessed is quite different. In the context of a PRRA, risk as per section 97 of IRPA involves assessing whether the applicant would be personally subjected to a danger of torture or to a risk to life or to cruel and unusual treatment or punishment. [8] In an H&C application, however, risk should be addressed as but one of the factors relevant to determining whether the applicant would face unusual, and underserved or disproportionate hardship. Thus the focus is on hardship, which has a risk component, not on risk as such. [9] In general terms, it is more difficult for a PRRA applicant to establish risk than it is for an H&C applicant to establish hardship (see: Melchor v. Canada (Minister of Citizenship and Immigration), 2004 FC 1327 (CanLII), [2004] F.C.J. No. 1600, 2004 FC 1327; Dharamraj v. Canada (Minister of Citizenship and Immigration), 2006 FC 674 (CanLII), [2006] F.C.J. No. 853, 2006 FC 674; and Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296 (CanLII), [2005] F.C.J. No. 366, 2005 FC 296). In addition, the decision maker is required to consider whether the circumstances constitute unusual, undeserved or disproportionate hardship. Please see Ahmad v. Canada (Minister of

10 Citizenship and Immigration), 2008 FC 646 (CanLII), 2008 FC 646, [2008] F.C.J. No. 814 at para. 37; Ramotar, above, at para. 13; Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296 (CanLII), 2005 FC 296, 44 Imm. L.R. (3d) 118 at para. 3). The Federal Court has ruled in several recent decisions that under H&C criteria the hardship faced by applicants does not need to be an individualized risk. PRRA applications and Refugee Protection Division cases are restricted to the criteria contained in sections 96 and 97 of IRPA. H&C applications require an officer to take into account a general atmosphere of prevailing insecurity even when it is faced by the entire population. The requirement to demonstrate hardship can be satisfied by documentary proof of generalized violence or other forms of instability: In this regard please see: Sahota v. Canada, 2007 FC 651 Pacia V. Canada, 2008 FC 804 Barrak v. Canada, 2008, FC 962 Ramsawak v. Canada, 2009, FC 636 Ramotar v. Canada, 2009 FC 362 Ramirez v. Canada, 2006 FC 1404 In Ramsawak supra, Justice De Montigny states: This Court has emphasized, in a number of cases, the importance of assessing an H&C claim through the lens of hardship, as distinct from that of risk applied in relation to a PRRA: see, for example, Uddin v. Canada (Minister of Citizenship and Immigration), [2003].C.J. No. 460; Serda v. Canada (Minister of Citizenship and Immigration), 2006 FC 356; Sha er v. Canada (Minister of Citizenship and Immigration), 2007 FC 231; Pinter v. Canada (Minister of Citizenship and Immigration), 2005 FC 296; Ramirez v. Canada (Minister of Citizenship and Immigration), 2006 FC The mere fact that the officer states the proper test at the outset of their reasons does not mean that the officer properly assessed the evidence. Again, personalized risk is not an irrelevant consideration in an H&C application; but an officer has an obligation, in this context, to look beyond risk to other indicators of hardship, where they are present. In this case, the officer makes no reference whatsoever to hardship. Indeed, the section itself is titled Allegations of Personalized Risk. The officer accepted that there was evidence in the record of racial tensions as well as problems with crime and violence against women in Guyana.

11 Nonetheless, the officer was not satisfied that the applicants were personally targeted or at risk of violence or persecution, given the problems cited are general in nature. Yet, nowhere does the officer assess why the applicants would not face hardship as a result of this situation, even if generalized. Inadmissibilities vs. H&C Discretion Officers are only granted specific authority to exempt an applicant for particular inadmissibility matters through application of H&C discretion. This list includes criminality (s. 36(2)); financial/economic reasons (s.39), misrepresentation (s. 40), non compliance with IRPA (s. 41) and inadmissible family members (s.42). Of note, officers do not have the delegated authority to grant exemptions in the case of security (s. 34), human rights and international rights violations (s. 35), organized criminality (s. 37), serious criminality (s. 36(1)) and medical reasons (s. 38). [Please note that Operational Bulletin O21, regarding application of H&C discretion to inadmissibilities and published on June , has expired] Authority to grant exemptions is only delegated to CIC officers for inadmissibilities of less severity. In order to gain exemptions for issues of serious criminality (s.36 (1)) and medical inadmissibility (s. 38), the request must be directed to the Director of Case Review at National Headquarters as the only person with the authority to grant the H&C exemption. The authority to grant exemptions for security (s. 34), human and international rights violations (s. 35) and organized criminality (s.37) is only designated to the CIC Minister. Where there is more than one exemption requested, the higher authority will assess all exemptions. The request for exemption will be balanced against the H&C factors and assessment of the entire case.

12 Although it appears that s. 25 and its H&C discretion is broadly applicable to all inadmissibilities, the new IP 5 manual notes that exemptions to inadmissibility must be weighed against the objectives as expressed in IRPA which indicate an intent to prioritize security and to treat criminals and security threats less leniently. Not only do requests for non delegated exemptions add additional time to the processing of the H&C application, the greater the severity of the inadmissibility (and the greater the element of security), the less likely the chance of a positive response to the H&C request. No Stage 1 approval will be rendered without all known inadmissibilities, including potential health inadmissibility, considered and assessed. Discretion vs. the CBSA removal process: As we all know, there is a long waiting process involved in submitting an H&C application thanks to a significant backlog of undecided cases and a processing time upwards of 30 months. For many applicants, this extended waiting process comes up against the CBSA removal process. Unfortunately, the CBSA removal process moves much faster than the H&C decision making by CIC and leads to competing obligations under IRPA. IRPA requires that CBSA officers remove foreign nationals who are deemed removal ready as soon as is reasonably practicable there is no stay of removal until a positive Stage 1 assessment on an H&C application has been made. Despite pending H&C applications, both CBSA and the Federal Court have consistently enforced the obligation, thereby curtailing the H&C discretion simply on the basis of timeliness. Although an H&C application will continue to be considered after removal, if a positive Stage 1 assessment is made, the applicant may be allowed to return to Canada for processing, although this is by no means guaranteed.

13 Practical processing matters As of April 1, 2011, all new H & C applications are to be filed at the Backlog Reduction Office in Vancouver at the following address: CIC Backlog Reduction Office 1148 Hornby Street Vancouver, BC V6Z 2C3 Fax: (this may change so please check prior to faxing) CIC has advised me that they do not have a projected time line for processing applications at the Backlog Reduction Office in Vancouver. In addition, you should be updating your client s applications on an ongoing basis as there is no guarantee that CIC will send out a letter advising that the file is going to be reviewed in the near future. In the past CIC has sent out a warning letter that allows applicants 30 days to update their files. This may no longer be the case. In Canada Landing Class applications continue to be filed at the CPC in Alberta. PRRA Applications can be faxed in as well at (this may change so please check prior to faxing)