Humanitarian and compassionate (H&C) considerations: Administrative law principles - Guidelines for H&C decision-making

IRCC is required to follow the rules of procedural fairness throughout the decision-making process.

Before processing an H&C application or request, officers review the administrative law principles summarized below. These explanations are only overviews and do not constitute an exhaustive presentation of the legal principles applicable to an H&C assessment.

List of administrative law principles

1. Delegated authority

   As holders of decision-making authority delegated from the Minister, decision-makers cannot exceed the scope of the delegation granted. Refer to IL3 and Legal references for details on the authority to grant exemptions on H&C grounds.

2. Duty to consider

   Decision makers are obliged to consider formal applications or requests for an exemption on H&C grounds under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA) on behalf of the Minister when the applicant has satisfied the requirements of sections 10 and 66 of the Immigration and Refugee Protection Regulations (IRPR).

3. Onus on applicant

   Decision makers do not have to elicit information on H&C factors and are not required to satisfy applicants that such grounds do not exist. The onus is on applicants to put forth any H&C factors they believe exist in their case.

4. All the evidence

   Decision makers consider and weigh all the relevant evidence and information, including what the applicant and the officer consider important. Do not emphasize one factor to the exclusion of other factors. The decision maker must look at the whole picture. Any information or evidence that is irrelevant or should not be given much weight should be documented appropriately.

   If the applicant is given time to provide further submissions, officers should only make a decision on the application after this time has elapsed.

5. The right to be “heard”

   One of the fundamental components of natural justice or fairness is the right to be heard. This means the applicant must have a fair opportunity to present their case. In the case of an H&C application or request, the applicant will have normally provided written submissions.

   The right to be heard does not require an absolute right to an interview.

6. The “case to be met”

   There is no particular “case to be met.” Applicants determine what they believe are the H&C factors for their specific circumstances and make submissions to support their application or request for H&C considerations. The decision maker may have information or evidence from a source other than the applicant (that is, extrinsic information). When making Stage 1 or Stage 2 assessments, officers must share the information with the applicant and allow submissions to be made in response to this information.

   When the source of information is confidential, the decision maker must share core information with the applicant, so they are aware of the case to be met. It is not necessary to release the identity of a confidential source.

   Right to a fair and impartial decision maker and freedom from bias

   Procedural fairness is violated when the decision maker is biased or their conduct or statements raise a reasonable apprehension of bias.

   An applicant has the right to a fair and impartial decision maker. Decision makers must not allow personal beliefs or interests to influence their decisions. The application or request must be studied impartially. The applicant does not have to prove that the decision maker was biased. The mere possibility of bias may be enough to show bias.

   If the Act or Regulations give officers complete authority to make a decision, they must clearly exercise that authority. Officers may, of course, take advice before making a decision. However, it should be plain to applicants that officers have used their authority to decide freely. The record of decision should also indicate that, after weighing guidance among all relevant factors, officers came to their own conclusion. If officers tell applicants that a decision on their case is a result of advice from a superior or headquarters, or of information in program delivery instructions, they restrain their discretion and are violating two other principles of procedural fairness, namely whoever hears must decide, and applicants must have the opportunity to disabuse decision makers of their concerns.

   The following are examples of situations that may show bias:

   • commenting on a question before an interview;
   • prior involvement in the case;
   • a relationship between the decision maker and one of the parties;
   • marked hostility toward one of the parties;
   • possibility of financial benefit from the outcome of the proceedings.

7. Right to a decision

   Decisions must be made within a reasonable time, and applicants must be informed of the decision in writing.

8. Right to reasons

   The rationale for an H&C assessment must be recorded and noted in the file. The reasons for refusal must be made available to the applicant upon request.