Raj Sharma on the Humanitarian and Compassionate Application: A Widening Door?

I was counsel on two recent applications for humanitarian and compassionate relief; one against Niger and one against Nepal. Both applications were refused and I was counsel on both when review was sought at the Federal Court of Canada. Both of those resulting decisions should be of assistance to all seeking relief and consideration facing return to objective, significant, adverse country conditions. The humanitarian and compassionate process – otherwise known as “H&C” – has become, despite some hand-wringing in some quarters, an immigrant class of its own. I wrote about the recent decision by the Supreme Court considering the H&C; the majority adopted the reasoning of Justice Rennie (then, at the Federal Court) in Aboubacar.

Shrestha v MCI 2016 FC 1370 decided by Justice Gleeson considered a refusal of a request for humanitarian and compassion relief from a national of Nepal. The applicant in that case had only come to Canada in 2013 with his family remaining back in Nepal. In the summer of 2015 he had sought an exemption after two earthquakes devastated that country. His request for relief was denied in May of 2016 and part of that decision included the officer’s conclusion that “the adverse country conditions evidence addressed general country conditions only and did not address the personal circumstances of the applicant or his family” (paragraph 3).

Justice Gleeson decided that the officer had made a reviewable error in concluding that there was insufficient evidence to establish a link between the general, adverse country conditions evidence and the applicant’s personal circumstances. Justice Gleeson emphasized that in applications for humanitarian and compassion relief, an applicant “does not require to demonstrate that the alleged hardship is not a hardship generally faced by others in the country …” and “… in other words, the hardship must be personal but it need not be unique …”

In allowing the application for judicial review, Justice Gleeson found that there “was significant evidence … that describe the severity and devastating impact of earthquakes in Nepal … The evidence disclosed the impact the earthquakes had on basic human health services, education and housing … It describes Nepal’s weak economy, its position as one of the world’s poorest countries, and its ineffective government.”

Justice Gleeson in Shrestha acknowledged that these adverse conditions were “unquestionably general in nature” however he relied on Justice Rennie’s decision in Aboubacar v MCI adopted by the majority of the SCC in Kanthasamy; paragraph 12 of Aboubacar ” … There are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return …”

Finally Shrestha at paragraph 15 indicates that the officer erred in failing “… to recognize that the country conditions evidence might itself be sufficient to warrant a positive [H&C] decision in some limited circumstances.”

This is precisely the circumstance that the humanitarian and compassionate class is designed for. These dire economic, health or insecurity issues that a particular country may not lend itself to a finding of personalized risk under section 96 or 97 or by way of a PRRA – but they are precisely – and rightly – captured by the law, jurisprudence and policy surrounding section 25 (1) of the Immigration and Refugee Protection Act.