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Humanitarian and Compassionate Applications & Risk

Section 25 of the Immigration and Refugee Protection Act (IRPA) is the generic section of the Act which allows people to seek to overcome or be exempt from any requirement under the Act on humanitarian and compassionate ("H&C") grounds. The provision also allows people to seek permanent residence within Canada when they do not otherwise qualify under any of Canada's programs. The section is often relied on by failed refugee claimants whose situations do not quite meet the threshold of the definitions of protected persons, but a return to their country of nationality would nevertheless cause undue, undeserved or disproportionate hardship. In exceptional situations, such individuals are granted permanent residence on H&C grounds.

In June 2010, section 25 was amended to add subsection (1.3), which reads as follows:

(1.3) 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.

What this amendment says is that an officer reviewing an H&C is not allowed to consider any refugee-type factors. The officer is not permitted to make a protection determination. Often times, H&C applications, particularly for failed refugee claimants, often cite general country conditions and generalized risk as reasons for the hardship. Until this amendment, the Federal Court has consistently held that the risk analysis that an officer must undertake in an H&C is vastly different than what is required of a Member hearing a refugee case or a PRRA (pre-removal risk assessment) officer. The Court consistently held that general risks, that may be faced by a population generally, may be sufficient for a finding of hardship.

It is only now that we are seeing decisions on H&Cs filed post-June 2010 and the bulk of them are being refused by officers saying they cannot look at any of the generalized evidence provided because they are precluded from doing so by s. 25(1.3). We have always maintained that this is a completely incorrect interpretation of the law. How can you say generalized risk is a "refugee-like factor" when that type of evidence is specifically not considered in a refugee case?

In our office, we have been filing applications for Judicial Review to the Federal Court on almost all of these types of refusals because we strongly believe this is a gross misinterpretation of the law, and of this new subsection.

Yesterday, I was able to finally argue such a case in front of Justice Hughes at the Federal Court. Justice Hughes was very well versed on the issue presented and felt quite strongly that we might need direction from the Federal Court of Appeal on this issue. Counsel for the Department of Justice also indicated that the interpretation of this new subsection is being hotly debated within the immigration department in Ottawa.

It will be interesting to see Justice Hughes decision, and it is also very likely that this will be referred to the Federal Court of Appeal by way of a certified question. Some direction on the interpretation to be given to this amendment is desperately needed!

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