Changes to Humanitarian and Compassionate Applications in Canada as of June 29 2010 – Announced September 3 2010

By Author: Admin | September 6, 2010

September 3 2010 was the date on which Canada’s Immigration Department announced changes to all in-Canada humanitarian and compassionate (“H&C”) cases filed on or after June 29 2010.  The changes are designed to reduce the hurdles Canada’s Border Service Agency has faced prior to deporting foreign nationals from Canada.  Some discipline is being added to humanitarian and compassionate applications in Canada that was hitherto found wanting.

Specifically, it is no longer possible for an applicant to submit more than one H&C application at a time.  I doubt this had occurred  frequently prior to June 29 2010, given that the government fee as of the time of this posting is $550.00 per adult applicant.  However, some creative Canadian immigration lawyers have used more than one H&C application in tandem with federal court stays of removal from Canada with some success (stays of removal allow a person to remain in Canada despite a removal order issued by the CBSA).  I can see the bureaucratic logic of extending this restriction to other applications since in theory this would mean less applications for Canada’s Immigration department to deal with (prior to this change the only other explicit restriction on filing more than one application was in the context of spousal/common law applications).

The law now states that government fees must be paid to get the benefit of processing.  This was understood as mandatory by experienced immigration lawyers and consultants, and mirrors other parts of Canada’s immigration law dealing with federal skilled workers which also require the fee prior to an application being ‘locked-in’ as of a certain date.

There is now the ability for the immigration department to waive fees, but I can never see this happening in practice except where there are extremely dire circumstances (something that you would see on the silver screen or Bollywood).  I can envisage such a successful H&C applicant being bandied about by Canada’s immigration department as a poster-boy of how humane the Canadian government is.  I can picture a glowing profile of the H&C applicant on Canada’s Immigration website, along with a photo op of such an H&C candidate with a high-profile politician.  Victimized persons being used as props by the Canadian government are not uncommon.

A sample of how extraordinary one’s story would have to be before the Minister would justify the waiving of fees is as follows:

“After being orphaned at the age of five, and subsequently raised by wolves, poor Bobby left his wolf-cave to seek out a good fortune at the ripe age of 12, only to be kidnapped by pirates.  After working in the dark hold of a pirate ship, bobby escaped while at a West African port of call.  While searching for subsistence he was captured by a war lord and enslaved.  Luckily the war lord was captured by a Canadian peacekeeping mission and the boy was rescued.  Watch of video of Bobby arriving in Canada for the first time.  See Bobby doing lay-ups with Prime Minister Stephen Harper.  Given Canada’s commitment to humanitarianism, the Right Honourable Minster of Immigration has directed that Bobby’s $550.00 processing fee has been waived.”

A significant change includes the separation of H&C applications from Pre-Removal Risk Assessment (‘PRRA’) applications.  From approximately 2006 until the June 29 2010 change, all H&C applications that alleged risk in the country of origin were processed by the Canada Border Service Agency at their PRRA unit.  The consensus among immigration lawyers and consultants was that this was generally the kiss of death to H&C applications as the perception of “undue, undeserved and disproportionate hardship” among CBSA officers was much more stringent as compared to when H&C applications were assessed by the Immigration Department.  In addition the CBSA mandate includes the removal of persons from Canada.  By contrast, the mandate of the Minister of Citizenship & Immigration is to process applications for entry to Canada.

Thus, there is now more hope for people seeking H&C landing already within Canada.

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