Humanitarian and compassionate (H&C) considerations: Assessing, researching and recording a decision

Assessing an applicant’s submissions

To assess submissions, determine

• which facts have been established on a balance of probabilities
• which statements are supported by the submissions/documentary evidence
• whether the facts establish that H&C considerations relating to the foreign national, taking into account the best interests of a child directly affected, justify granting the requested exemption

Assessing documentation

Factors that can be taken into consideration when assessing the weight to be given to documentary evidence include

• the date of the document
• the reasons for which it was prepared
• the relationship between the person who prepared the document and the applicant
• whether the author has an interest in the outcome of the application (self-serving evidence)
• whether the document shows signs of bias
• whether it appears to be contrived
• whether the content is consistent with other reliable information
• whether the author was a witness to the events described or it is hearsay (a legal term describing a class of evidence based on the reports of others rather than the personal knowledge of a witness

Decision-makers must:

• determine which facts are most important, which evidence is the most persuasive, which argument is the most compelling or convincing, and why. The weight given to any factor in a case is an objective determination of the decision maker.
• explain why they preferred one piece of evidence over another. It is not necessary to mention every piece of evidence supplied by the applicant. Officers focus on the evidence that is significant to support the decision.
• weigh the facts fairly and impartially, considering both positive and negative elements

Note: Officers should keep in mind the challenges applicants may face in obtaining intrinsic or personal evidence. Evidence should not be discounted solely because the author, such as a family member, has an interest in the well-being of the applicant.

Assessing credibility

• If credibility is central to the decision, a telephone or in-person interview can be held, or a procedural fairness letter can be sent.

The IRB has extensive documentation on how to weigh evidence. This documentation is not specifically directly applicable to IRCC but can be use as a general reference in the context of immigration.

Conducting research

Officers may do independent research regarding the issues identified in the application. The sources consulted during research may differ for each individual case.

When officers obtain information through Internet searches, they should do the following:

• Share relevant information and external documentation/extrinsic information with the applicant, if the applicant could not reasonably be expected to have seen or know about the information, even if the document is “publicly accessible.”
• Upload copies of all documents obtained from the Internet and used in the decision-making process in the Global Case Management System (GCMS). Copies should be in PDF format (using the ‘Print to PDF’ function); the date and time of consultation will appear on the copy.
• Refer to the most current information sources.

Decision makers should make sure to consult the most recent and updated versions of country reports to ensure there have been no changes in country conditions that could affect the decision Information from Sources of country of origin information does not normally need to be released to the applicant. However, decision makers should follow the rules of procedural fairness if a new, relevant and decisive document was published after the application was submitted.

Recording the reasons for an H&C decision

When writing H&C decisions, officers should keep in mind the following:

• Record all the factors, both positive and negative, that were considered to make a decision.
• Explain their thought process. Make no assumptions; fill in the gap between the facts listed and the decision.
• Avoid absolute statements like “there is no evidence” or “there would be no hardship”; the appropriate term is insufficient evidence or hardship.
• Use neutral terms.
  • It is preferable to say, “he declares/states” rather than “he claims” or “he admits.”
• Avoid strong comments on the credibility of the information.
  • If the officer writes, “I do not believe,” this suggests that they are questioning credibility. The officer must demonstrate that they have fully investigated the issue (interviewed the applicant, for example). Using the phrase, “I am not satisfied,” is less contentious and keeps the onus on the applicant to satisfy the officer.
• Comment on the evidence rather than the inference the officer draws from the evidence.
  • Do not comment on whether or not a common-law couple has a close relationship; comment on whether sufficient evidence has been submitted to satisfy the officer that there is a genuine relationship.
• Be satisfied that they have adequately addressed an issue; they should not go any further by trying to reinforce their decision.
• Write in simple, straightforward and dispassionate language.
• Record how the applicant was provided with an opportunity to satisfy the officer of the H&C considerations in relation to their case.
• Include a bibliography and footnotes and upload PDF documents used as a reference for the decision.