February 27, 2021

Humanitarian and compassionate considerations for immigration to Canada

EST was released on January 31, 2021 at 04:00 AM

Canada’s immigration system, by its very nature, is forced to adjust to many different values ​​and aspirations.

For example, the computer tries to mediate between providing stability and stability in one (metaphorical) hand, but flexibility and honesty on the other.

The Immigration and Refugee Protection Act (IRPA) Is the main law governing immigration To Canada. The IRPA reflects this balancing effort. When searching Immigration status In Canada, SSection 25 (1)And IRPA Allows people not to meet One or more The Application Requirements Set inside Act to require the government to consider waiving humanitarian and compassionate (H) related requirements&C) Ground. Minister Citizenship and Immigration may also request such an opinion.

When an H&C request is made by a foreign national within Canada, the Canadian immigration system is obliged to consider it. H&C requests may also be made by foreigners outside Canada; However, there is no legal obligation to consider them.

To be clear, that’s what H&C is considering: this is an exceptional demand for regular use needs, not an automatic subsidy of a discount.

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Canadian law and the judiciary have a long-standing and well-developed framework for evaluating such claims, which has developed significantly over time.

This work system allows immigration officials and other decision-makers to grant exemptions to application requirements in a variety of situations, taking into account the specific facts of a given case (e.g. relations with Canada, medical, financial and approval issues, children with best interests, etc.) in a consistent manner.

Sometimes, however, a case emerges that, by its very nature, is very unusual and challenging. Ms. Elena’s unfortunate situation Starch, A federal court ruled last November, is one such case.

Ms. Starch Is in his early sixties. Unfortunately, he has long suffered from the devastation of mental illness – in his case, schizophrenia. Ms. Starch Has spent the last several years homeless in Toronto; He is now a Ward of the Ontario Public Guardian and Trustee.

Due to his illness, Ms. Starch She could not recall many basic details of her biography such as the place of her birth. This adds to Improclio, no Immigration, Refugees and Citizenship of Canada (IRCC) or the Canadian Border Services Agency (CBSA) have any immigration records related to Ms. Starch.

Her inability to provide relevant background information And documentation, cMrs. Starch Asked her accordingly Application for permanent residencee H.&&C Ground. Factors Included: Ms. Starch Mental illness; That madam. Starch Apparently unstable; Lack of permanent status in Canada Mrs. Starch Obtaining Government Housing and Social Services

The reviewing officer Ms. agreed. Starch The situation was difficult, however&C. Ground application. Ms. Consultant Starch Leave requested and received Proceed to a judiciary Review In federal court of Canada to challenge this decision.

The court’s verdict was, simply, worse. It took place The officer “failed to get involved [Ms. Starach’s H&C] Is engaged in a “circular and incomprehensible analysis” of the claim and instead his situation. The court concluded that Ms. had expelled the officer. Starch Application on the basis that the officer is transparent No. Satisfaction Mrs. Starch Really unstable, was, Itself, Incomprehensible and without explanation. Judgment came from the previous case, Hazelnut v Canada (M.C.I.), 2017 FC 1008 [Abeleira], Which is like Ms. Starch, A person is unstable, unidentified and does not appear to have been a citizen of another country at any time. In which judgment Hazelnut The lawsuit alleges that an immigration officer was needed to consider the global detrimental impact of the H denial.&C permanent residence for such person.

Accordingly, the Federal Court accepted Ms. Starch Appeal and set aside the decision of the starting officer and remand it to another officer for reconsideration.

Ms. Starch The case, while unfortunate, also illustrates some of the strengths of the Canadian immigration system. Individuals have the opportunity to seek humanitarian and compassionate feedback on their immigration applications When they do not meet all utility requirements. The Federal Court requires that the officer’s decisions be reasonable, prudent, and in accordance with existing jurisdiction. If A Application rejected, Applicants can still seek assistance in Federal Court, Mrs. Starch Successfully did.

Ms. Starch Sadly may have forgotten itself, but Canadan The immigration system has not forgotten her.

If you are interested in learning more about this case, Starch v. Canada (M.C.I.), 2020 FC 917, you can access this https://canlii.ca/t/jb494

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