Humanitarian and compassionate (H&C) considerations: Initial assessment of an H&C application

Applies to  in Canada and  overseas

Balance between discretion and consistency

Making effective decisions in H&C applications or requests requires finding the right balance between consistency and the ability to address the unique circumstances of each case. In addition to legislation, documents such as policy statements, guidelines, manuals and handbooks guide decision makers on when and how to exercise discretion in line with policy objectives. These documents play a legitimate role in guiding decision makers in their work.

Note: While policy guidelines assist decision makers, they are not intended to be either exhaustive or restrictive. Unlike the Immigration and Refugee Protection Act (IRPA) and its regulations, guidelines are not legally binding, and decision makers should not fetter their discretion by treating them as if they were mandatory requirements.

See: Thamotharem v. Canada (Minister of Citizenship and Immigration); 2007 CarswellNat 1391; 2007 FCA.

Onus on applicant

The onus is entirely on the applicant to be clear in their submissions as to exactly what hardship they would face if they were not granted the requested H&C exemption. Decision makers do not have to elicit information on H&C factors and are not required to assure applicants that such grounds do not exist.

Applicants must put forth any H&C factors that they believe are relevant to their case.

Threshold of proof

Fact-finding should be done using the usual standard of proof in administrative law: Balance of probabilities - is it more likely than not that the evidence or information presented is true?

A lower standard of proof, reasonable grounds to believe (PDF), may be used to assess inadmissibility. In this regard, section A33 provides that “The facts that constitute inadmissibility under sections A34 to A37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.”

Once all elements of the case have been determined, using the appropriate standard of proof, officers should conduct a full global assessment of the facts in the application and decide whether granting permanent resident status or an exemption from any applicable criteria or obligations of the IRPA is justified by H&C considerations.