Steven Meurrens: All right. It is June 13th, 2025. We are here today with an all-star panel of H&C experts, Raj Sharma, who was supposed to be on a few weeks ago. We had the episode titled, but then he couldn't make it, and I learned what happens when an episode airs with the title Raj Sharma in it, and he's not there. I get a lot of emails saying, "Where is Raj Sharma? We want Raj." Always a hit on our episodes. We may even bring up, I guess, your past cases because they weren't H&C applications, but they were IAD appeals for Ms. Mohamad. Welcome back.
Raj Sharma: It's a pleasure always, and it's been a long time. Although we did meet at the conference...
Steven Meurrens: A few times. We did a scavenger hunt. We tried to follow you around.
Raj Sharma: I tried to mislead you. Yes.
Steven Meurrens: You tried. No, you told us the truth that they weren't going to count something. We didn't believe you, so we went there... Right? We went there and we're like, aha. Raj thought we were going to believe him that this wasn't going to count. Then they told us this doesn't count. So you were right.
Raj Sharma: Deception and misdirection are powerful allies in litigation.
Steven Meurrens: You sound like Emperor Palpatine in the way that you're talking.
Deanna Okun-Nac...: We just all came back from the CDA Immigration Conference and they had a... I can't believe you guys went on it. I needed any time to recover my energy, so I just chilled rather than going on a scavenger hunt.
Steven Meurrens: It was quite something.
Deanna Okun-Nac...: Yeah.
Steven Meurrens: Also, joining us today is Hannah Lindy, who works at our firm and is our firm's resident guru on H&C applications, which is the topic for today. H&C stands for Humanitarian and Compassionate Applications. Growing area.
Deanna Okun-Nac...: This is Hannah's first time on the show.
Hannah Lindy: Yeah, it is. Longtime listener, first time caller.
Steven Meurrens: There we go.
Deanna Okun-Nac...: Cool.
Steven Meurrens: So why don't we start with you, Hannah. What is an H&C application and why would someone want to file it?
Hannah Lindy: So an H&C application is an in-Canada application for permanent residents. The authority for making this application is under section 25 of IRPA. When we look at our PR application streams in Canada, we've got family sponsorship, economic and then humanitarian/refugee. So the in-Canada humanitarian application can be made by almost anyone in Canada. There are some restrictions.
The people who make these kinds of applications tend to be people who aren't eligible to apply from outside Canada or who can't apply under some other category or stream for permanent residents. So it can be people who are out of status in Canada and have been for many years, people who have some kind of temporary status in Canada, but again, they don't fit under any of the other categories. Sometimes failed refugee claimants. It's really a very, very broad category and I imagine they get a lot of applications from people in very different circumstances.
Steven Meurrens: What is the general test that IRCC is looking for?
Hannah Lindy: So the general test, I mean to put it very, very simply I think is whether looking at the applicants circumstances as a whole, whether that warrants granting them permanent residence on humanitarian and compassionate grounds. Officers also have to consider as part of that the best interest of any children who are affected and the best interest of the child factor that's baked into the language of section 25 of the act.
Steven Meurrens: Yeah. Any of you, I guess, maybe Raj, when you, probably all of us receive emails, correspondence, meet with people who don't have any options for permanent residence, especially now with lotteries in the Parental Grandparent program, hugely high points thresholds for express entry. What factors and things are you looking at to decide whether H&C makes sense for this person?
Raj Sharma: A humanitarian and compassionate application is necessarily subjective. Subjective in the sense that we've got the factors that have been set out in various forms or another, and there's a great... If you read Kanthasamy, the Supreme Court decision, you'll get a nice sense of the historical operation of Section 25.
Suffice it to say there's always been a provision under the IRPA or the predecessor legislation to soften or mitigate against these sometimes harsh or rigid consequences of the act as a whole. So the traditional factors that we see in the jurisprudence, in the manuals that the officers are supposed to have regard to, we're supposed to look at the let's say, the non-compliance or the nature of the request I suppose. Or the circumstances of the individual bringing the application or the need for the application, but their establishment in Canada, which is more than just time in Canada, but their ties to this country and the impact on them if they had to leave.
There's the family in Canada and the dislocation to that family in the event of if relief is not granted. There's of course hardship and return scenario and best interest of a child that Hannah pointed out. It's non-exhaustive in the sense that the key is to bring forth almost a Shakespearean test. Whether that's Justice Harrington, I think in Espinoza or in another case prior to that, very, very subjective, can you hear a good man groan and not relent and not compassion him?
Deanna Okun-Nac...: This is not the first Borderlines podcast where you've quoted Shakespeare, just saying.
Raj Sharma: In this case I'm quoting from Justice Harrington who is quoting the [inaudible 00:06:33].
Deanna Okun-Nac...: Okay.
Raj Sharma: So this is sort of like a hearsay Shakespeare.
Hannah Lindy: I love that you put it like that though. I do think it's Shakespearean.
Deanna Okun-Nac...: Totally, a hundred percent.
Raj Sharma: So you have this when, Steven asked a very good question, and what I would say is that I'm a sympathetic individual, perhaps more so well than Steven.
Steven Meurrens: Perhaps. Perhaps. We were talking about this before we went on.
Raj Sharma: I don't know.
Deanna Okun-Nac...: I think even in Kanthasamy I find...
Raj Sharma: [inaudible 00:07:05] to feel something. So again, if you go back to Kanthasamy, you talk about these historical tests. The Chirwa test, and it's that same thing. The circumstances are such that would a reasonable person in a civilized society feel motivated to assist. So again, we're again very Shakespearean, very eloquent language.
We're trying to express something which is will an officer have the objective and basis that gives rise to a subjective animus to exercise the broad discretion allowed under the act. So back to Steven's question, what do I look for? I look for something that stirs the heart or can potentially stir the heart. Again, it's another test which is not applicable, let's say if it's... You know it when you see it, I suppose, or hear it.
Deanna Okun-Nac...: Yeah, that's just right. I think if the officer doesn't cry at the end of reading the submissions, it's not a viable H&C as I see it. So I used to find it was much easier to do a gut check on what is going to be a viable H&C. I used to have a pretty clear sense of whether something was going to be able to be successful, but I think that the category has been very much transformed.
Well first it was transformed as Raj says by the Kanthasamy decision because it had become somewhat fettered by this unusual, undeserved, and disproportionate hardship. That decision basically said, no, it really is more to be decided by this Shakespearean kind of standard. What would shock the conscience of the Canadian, the average Canadian, and what would a reasonable Canadian in a civilized society?
It went more to that, what is a situation that should drive compassion overall without these specific constraining factors? Because we did start to see more like, well, this isn't disproportionate as compared to everyone else. So it did get fettered.
I think that because the Levels Plan has so constrained the number of H&C applications that would be approved year over year, it really has thrown off what my evaluation has been. With such a limited number and with so many people in such difficult circumstances right now, because of all the various things going on around the world, I have a much harder time saying, yes, this one rises to the level. Yes, I feel very confident that this is going to be a very strong H&C application. I'm curious whether both of you also feel that giving clear advice has become much more difficult in the last year since the Levels Plan came out.
Hannah Lindy: I think it absolutely has. I mean, I still tend not to tell clients though I'm extremely confident that this application is going to be approved because the nature of H&C applications is so discretionary. I mean, I agree with you, Deanna. I think that once you've done this for a while and done enough of these applications to see what gets approved and what doesn't, you do a gut check and you have a fairly good sense of what is going to be a strong H&C application. Yeah, I do think that that has gone out the window somewhat.
So I find myself more recently telling people, look, I can tell you what is strong about your case, what the weaknesses are, but at the end of the day it's coming down to an officer and when they look at your file as Raj said, is it going to stir their heart? Are they going to actually grant you permanent residency? I just don't know. With the increase of applications with the Levels Plan, I think it's going to be even more difficult to predict going forward what applications are and are not going to be approved.
Steven Meurrens: So that Levels Plan, I'm not going to pull up the actual plan on YouTube, but the target this year for total humanitarian and compassionate and other which includes the Ukraine, Sudan, and Hong Kong programs, the target this year is 10,000 people admitted, not applications approved. So that includes family and kids. Dropping to 6,900 next year and then 4,300 in 2027. So the number of people that the government plans on admitting is going to go down by half.
At the same time, there's no reason to think that demand for the program isn't going to increase, especially we haven't really discussed it on the podcast yet, but with something like bill C-2, which is going to restrict asylum claims. So where do you see this category moving forward? Raj was saying before that demand for this is going to soar. How do you measure that against what should be a program that admits half as many people two years from now as it does today?
Deanna Okun-Nac...: Well, I mean one thing that really stuck me during the conference was that it's very clear that any kind of relief efforts that the government runs throughout the year, if there's a natural disaster that happens, we've always in the past created special quotas for like, this group is affected by this natural disaster and they need to... We create some accommodation. Those are all coming out of the same allocation. So they tend to be pretty small allocations, but still that does eat into the same group.
I think that right now, especially when you look to this UAET program, there are a large number of people, there doesn't seem to be any stated intention to create a separate permanent residence pathway. So there are just a lot of people here that still are not able to return to the Ukraine. Some people that I've spoken to, the place where they came from is no longer Ukraine.
So a lot of very meritorious applications right from the outset. So it means that somebody who's just not eligible for permanent residency because the score has gone too high, it's very hard to imagine that those are going to be competitive for a spot in the H&C allocation as compared to people who are actually coming from an unstable region or people who have severe health issues that will not be addressed in their country of origin. So it's really kind of shifted the balance.
I agree with Hannah that I'm not saying to anyone right now that I'm super confident in any case. I'm saying that it's very hard to imagine, especially because I think a lot of cases don't get decided in the year they're applying. They get decided in the next year or the year after. I'm much more cautionary about who I say, yes, this is a viable application.
Steven Meurrens: Do you want to talk also, I can't remember if it was Raj or Hannah who mentioned first stage approval, what that means in the context of an H&C application. These Levels Plan numbers would all pertain to permanent residents being granted, but the processing of an H&C application goes in two steps. What's the benefit of the first stage approval?
Raj Sharma: The first stage whether there's sufficient humanitarian and compassionate grounds to consider the request for either an exemption from the requirements of the act and, or permanent residency. Both of those, there's a significant overlap there. So in essence, you're asking for permanent residency, but that's that first stage.
The second stage is then going to assess inadmissibility largely. So that's the two stage process for the H&C. Now going back, I just want to comment on this. In terms of Levels Plan, I think that it is true that sympathy now appears to be in short supply. So as demand goes up, there's finite resources, our sympathy for our fellow human tends to go down because human beings are self-centered by nature.
I mean it's Nizar Qabbani I believe who said that we wear the cape of civilization where our souls live in the Stone Age. This is not just Canada, this is the UK, this is the US. Look around the world and migrants and asylum seekers are facing greater scrutiny and larger hurdles to secure status.
In terms of the Levels Plan, I think again, man plans and God laughs. We have an administration to the south of us and it is difficult to see how we would be able to manage or stop an influx of significant numbers. I agree with Deanna that how do we present advice? Now it's difficult to say. So if you look at reported decisions or the reported decisions that I have, everything that makes it to the federal court and hopefully we succeed, those are cases that we thought were meritorious.
So obviously there's the vagaries of the subjective assessment. So the closest I got to the Supreme Court was Aboubacar. My case went to the federal court, Justice Rennie, cited by approval by the majority in Kanthasamy. Aboubacar was from Niger, one of the poorest countries in the world where food insecurity impacts the majority of the population. The officer didn't consider the hardship that arose because the officer said, "Well, this is not particular or unique to the individual. It affects everyone and therefore it's not deserving of simply a consideration," which is of course nonsense.
Shrestha was one of a large cohort of Nepali H&Cs that this office filed after the devastating earthquakes of 2015. We succeeded on all of them. Shrestha again, same situation. The officers seemed to take issue with the fact that this natural disaster which impacted hundreds of thousands of homes and infrastructure and already poor and failing economy again, did not disproportionately impact our client. Again, that was a success there.
A failure to navigate the immigration system. Bahadur Singh, I was before Justice Ahmed there. 13 years as a temporary foreign worker, was taken advantage of by his immigration consultant and thereafter a ghost consultant. Again, the officers seem to not approach it with that empathetic lens that we've seen the court is asking the officers to employ, whether it's Justice Campbell [inaudible 00:18:40] for example, and of course other decisions by other noted jurists.
So I agree with Deanna and Hannah in the sense of that it's very difficult to give advice because obviously the ones that we go forward on and prepare ourselves are the ones that are ending up in federal court. We can take some solace in the fact that we're winning as well. So we have a good sense of that. In terms of the settlement plan or the let's see, let's see what happens. In the words of Mr. Trump, let's see what happens. We can adhere to that as well.
I guess the other thing I'd like to say as a corollary to Deanna is that all of these individuals that are going to fail to navigate this immigration system, international students that have been here for a brief period of time, that on its own in my mind is not enough to meet the threshold. I fear or I'm concerned that a lot of these applicants are being sold false hope.
Deanna Okun-Nac...: Yeah, I couldn't agree more with that. Frankly, I am declining to take those retainers. I feel like that hope can be really dreadful. Also, I'm just seeing the volume of people who are dealing with really just hugely distressing cases where the facts just are of a different ilk.
I think that, yeah, I don't like selling people a bill of goods. I feel like those don't strike me as being ones that are likely to be successful when, especially given the numbers, weighed against the other types of applications. Which are really just, they've got a lot more... I mean, the thing is, one thing that I would say, and this kind of feeds off of what Raj is saying, is that we've never seen the same volume of positive decisions in federal court of judicially reviewed H&C applications.
This was something that when I was litigating them in the past, there was much more deference to, they're like, well, they're wildly discretionary. There was very great reluctance to intervene on a decision that had been made by an immigration officer. Now I find they really need to articulate a good reason when it's a highly sympathetic case. So I think that that has to some degree elevated the decision making, but I think that where there isn't that really substantive reasoning provided in the application itself, I don't think that those are going to be sustainable.
Steven Meurrens: Well, one thing, and this touches on what both you and Raj said is that while the sentiment towards H&C may be changing at the IRCC level and the numbers are high and refusal rates are high, the facts on the ground in a lot of cases aren't getting any better. So one of the things that I've found, and I think it's reflected in the jurisprudence and certainly my own judicial review cases is that because officers are looking at very sympathetic facts, but they're inclined to refuse, their decisions wind up misconstruing the facts such that judicial review becomes a bit more straightforward.
It's like last year or two years ago, Chief Justice Crampton in one of my cases, Sharma, that case involved someone where there was a family in India, mother and father, a child in Canada, and then a son who had been murdered in India. The decision in the officer has about one, maybe half a sentence dedicated to the son who had been murdered, which was the whole thrust of the application. The rest of the officer's decision talks about, "Well, the separation of parents from their children can be expected in immigration." It was just our argument was like, yo, not everyone's child gets murdered here.
This is not... Another one that we just settled yesterday was like, I'm sure you've seen similar cases where someone in country of citizenship is basically in a civil war. The officer will write, "While the socioeconomic differences between Canada and X country might be different, this is not that... People regularly come from countries that have a different socioeconomic difference," which doesn't reflect at all as we put in the submissions, it's basically a war zone. That's not a simple thing of socioeconomic difference.
Deanna Okun-Nac...: For sure.
Steven Meurrens: That's at least what I've noticed is that...
Deanna Okun-Nac...: Me too.
Steven Meurrens: When it becomes hard to write refusals based on the actual facts, the facts get a bit misconstrued.
Deanna Okun-Nac...: When you get those boilerplate, I have considered the best interest of the child, but I have determined that these are not sufficient to overcome the... That we never promised in this case that there would be permanent residency at the end of this. Those types of boilerplate refusals are not sufficient when they don't engage with the severity of the facts. I totally agree.
I had one as well where a little boy, it was like an H&C to overcome a 117-90 exclusion, where a child had not been disclosed, but the mom was a very young woman and was not disclosing to her mother who was a caregiver, that she had become pregnant because of the stigma and Catholic country. All this sort of thing. The child who had been excluded had written the most tragic letter that I've ever read in my life saying he'd been abused and all this kind of stuff and please let me be with my mom.
That had been overlooked completely and just like it was very shaming of the mother for not having disclosed the existence of this child. Those sorts of things. This child really being denied the necessities of life. Things like that when you're like, I've considered this but I don't consider this to be sufficient and very blaming of the mother. Things like this, I think that when you have such compelling facts.
I mean something that I saw today, Nicholas Keung just wrote an article about the number of refugees accepted and Canada is such a compassionate country. I think that what we are seeing on the ground is that even though the circumstances in which people are coming are highly compelling, Canada's changing its approach. It's changing its approach to say there are just too many.
So it's this conflict that we've been talking about there a bit like yes, there are too many, but there are also still these precedents set up in law for when somebody actually just meets the test. No matter how you write the decision, they just meet the test. So we're struggling with this a lot in the humanitarian and compassionate, in the refugee setting that when the capacity or the desire, the intention to absorb is different than the actual whether or not you actually meet the requirements. So I think that this is the struggle in this area.
Steven Meurrens: Yeah. On that note of compelling grounds. One of the questions that we got, and maybe you can take this, Hannah, as you had mentioned best interest of the child, Deanna, and we've talked about compelling cases, we got questions similar along this.
One was, does there always need to be a child involved in an H&C application? Or if there's no children, is it automatically refused? Does the grounds of H&C always need to be dramatic and heartbreaking? What if it is just someone's been here three years, they're established to a degree and there's no clear permanent residence pathway?
Hannah Lindy: I mean the short answer to the first question is no, it doesn't always have to be a child. The best interest of a child who's affected by the application do have to be considered. I'm sure Deanna and Raj, you can speak to this as well, I've had a number of clients where there's no children involved, there's no best interest of the children to be considered that have been approved on the individual facts.
I think the second question about what if there's just no clear pathway to PR despite having been in Canada for three years. I think this goes what you were saying, Deanna, where we're just going to, I think, we're already seeing this influx of people, former international students, people who have work permits who just don't have the points to get in under express entry. I agree with you.
I don't think that that is probably going to cut it, especially when officers have other cases where the facts are just truly more compelling. I still think that people who have been here for a long time and they don't have a clear pathway to permanent residence, I mean to me personally, I find that very compelling. Again, is an officer going to find it compelling and I think that comparatively they probably won't in most cases.
Deanna Okun-Nac...: What do you think about this, Raj?
Raj Sharma: I'm on board with Hannah. I guess what I love most about the H&C application...
Deanna Okun-Nac...: Is you get to quote Shakespeare a lot?
Steven Meurrens: Raj does that anyway.
Raj Sharma: That too.
Steven Meurrens: Eminem, it rotates. Shakespeare and Eminem.
Raj Sharma: It allows you to step into the shoes of the applicants and understand their lives. I find that that's one of the parts of this job that I love. As you know, litigation is difficult, but it allows you to use your skills of advocacy, whatever that is, whether it's written or oral, whether it's quoting Shakespeare, whether it's country conditions, whether it's connecting the dots. It allows you to engage a core skill of being a true lawyer, which is advocacy.
It's incredibly rewarding once you get that first stage approval. It really keeps you going. It keeps you motivated through the stay applications, through the fighting in the trenches. So the H&C is so fulfilling, I think for the lawyer as well as the applicants. I think that in line with what Hannah and Deanna are saying, you need some kind of hardship. Now, again, hardship is a subjective word.
Whether we talk about Punjabi, Hindi, Urdu, Mushkilat or Taklif, you need hardship that is beyond just the normal operation of the immigration system, which is you're here as a temporary resident. Permanent resident wasn't necessarily in the cards. You would need to show some hardship.
Then you need evidence. So yes, it's entirely possible to win an H&C without a kid, although you need a kid to beat out the 12-month bar against H&Cs for refugee claimants. We should probably get to that as well. The limitations of H&Cs doesn't apply to 34, 35, 37 for example. I'm sure we'll get to that as well, but hardship.
BIOC, not necessarily BIOC, but it is a significant factor. Then how do you establish it? It's evidence. You have to show evidence. What is evidence? Which is statutory declarations, bank statements, income tax returns, objective country conditions, psychological reports, medical reports, school reports, letters from teachers, letters from your friends and family.
You combine that the facts, a true understanding of the facts. You apply it with the jurisprudence and the manuals and the legislation of course, and you put together a complete package for the officer's consideration, making it easy to say yes, making it hard to say no.
Hannah Lindy: For sure.
Raj Sharma: What we have to do is we have to be continually creative and we have to be continually curious. I want to thank Steven for his research, his tweets. I mean, I've used his tweets on H&C applications, on approval rates for this office versus that office for example. So again, I love the collegiality of the bar.
We just came back from that National Immigration Conference in Victoria, we're sharing precedents. Ronalee Carey and Erica Olmstead did a great presentation on H&Cs in Victoria. They're sharing their precedents, they're sharing their case law bank. The H&C is not an impossible mark, but I think it's important to use experience counsel that can give you a realistic assessment. I think people should also know that filing an application does not give you any status in Canada, will not give you any work permit or health care coverage until...
Deanna Okun-Nac...: Approval [inaudible 00:31:47].
Raj Sharma: [inaudible 00:31:47] approval.
Deanna Okun-Nac...: Which might take two years to get.
Raj Sharma: People should also know that you don't have to do a standalone H&C. You can do a standalone H&C to Vancouver, but you can also use H&C with other applications that are in the mix. You can even use H&C relief for applicants outside Canada. So very, very flexible, very powerful remedy.
I know we've been, I don't know, maybe a little bit, as good advocates, we are advising some of the challenges as well. That H&C, the powerful remedy that can overcome criminality, convictions in Canada, can overcome misrepresentation grounds of inadmissibility, can overcome any number of things other than [inaudible 00:32:33], 34, 35.
Steven Meurrens: Other than security, human right violations, [inaudible 00:32:40].
Raj Sharma: Family members, some forgotten aunt from back home in the village. We can get her here. It remains a powerful remedy under the immigration system and it's only going to get more and more important because of the rigidity of the system itself.
Steven Meurrens: Speaking of Victoria, a lawyer who I met for the first time in Victoria, he was presenting on removals with Michael Greene who's been on the podcast before. Justin Toh asked us this question. "I'd love to hear about skeleton H&Cs and how long IRCC is currently willing to wait for the perfection update before proceeding to a decision."
Is this a practice that you do where you submit a bare bones H&C application just to get into the queue and then update it later? I know, Hannah, when we spoke at a consultant conference last month, you talked about the importance of updating applications, but we didn't really speak about skeleton, bare bone H&Cs. Is this something any of you do?
Deanna Okun-Nac...: Sometimes, but usually it's only when there's a family class application that I could file with H&C submissions to overcome an admissibility issue. The reason I would sometimes do that is in order to forestall removal where it's a genuine... Again, it's not perfect. I do file, it's not really a skeletal, it's [inaudible 00:34:10], but then I almost immediately file the remaining material.
Raj Sharma: I have a feeling Deanna's skeleton H&C is probably better than most.
Deanna Okun-Nac...: They're pretty thorough. It's something if I need to do a...
Steven Meurrens: A novel instead of an encyclopedia.
Deanna Okun-Nac...: Yeah, yeah.
Raj Sharma: Hannah's advice is spot on. Always, aways update. These things are taking... We [inaudible 00:34:41] every four to six months. You update with tax returns. At a certain point you got to ship the product. So a certain point, it depends on the client. Sometimes the client is difficult, we're not getting the documents.
At a certain point, we will pull the pin, we'll submit the application, and then we'll go back to the client to get more supporting documents and you update on a regular basis. It's easy to update and it should be done. Failure to do so I think... I don't understand why an H&C application would not be updated.
Deanna Okun-Nac...: Yeah. I have to say though, going back to the last question to some extent, but also building off what you just said now, Raj, is that the question about does there need to be a child? No, but does it always need to be compelling and dramatic? Yes.
There are definitely situations in which I have succeeded, but it can't just be like, I've been here for all this time and I want to stay. There are numerous circumstances in which like as Raj said, what's going to happen in the country of origin, whether or not you're employing many Canadians, what is the degree of your contributions to Canada?
What would Canada have to lose by you not being able to remain? Was the loss of status, for example, because of an honest mistake or because you are actually the victim of fraud? It's again, they're all super, super fact specific. Also, what Raj said about this is a really good opportunity for good advocacy.
This is one area where I feel like it's not just whether or not you've been non-negligent, but I think the power of doing a well-written H&C will really make the difference between an approval and a refusal. It matters how you write it. I mean, I will quote Thomas Hardy where we're in a situation where it's like we are too many. So you really need to have an application that stands out where it does matter the language that you use.
It does matter that you answer all of the concerns that the officer might have and address those head on. So that takes some experience as to what is the officer going to think, what are the typical objections that officers have and you address them upfront. So good advocacy is really important here. I would say that that's not so much the case in other areas, but this one is one where you can really get a value add.
Steven Meurrens: I mean we were talking, I don't remember where we were talking, maybe it wasn't even in here about when you do cover letters, when you don't, when you do submissions, when you don't. Would you say in an H&C application it's imperative to always have a cover letter with detailed submissions?
Hannah Lindy: Yeah, you have to do that. I think if you don't do that, you're negligent, doing a huge disservice to your client. Beyond the cover letter with legal submissions, I mean, I think best practice is to do a very, very detailed stat deck from the applicant or more than one, if there's more than one applicant. That really sets out in huge narrative detail their story, where they're coming from, what they've been doing in Canada. Addresses gaps in the documentary evidence and really ties it all together. Like Deanna said, addresses upfront any questions or concerns that you anticipate the officer could have when they're reading through the application.
Deanna Okun-Nac...: It has to not sound like a lawyer's affidavit. It has to speak from your client's voice. So you have to spend a lot of time with your client capturing their own thoughts and feelings. Literally just the lawyer's role is to translate, to really communicate. Often when you're getting a stat deck and an H&C application, it comes to you very garbled because people are very distressed. You have to put it in a nice order, make sure that it's very distinctly from the applicant's own thoughts and feelings.
Steven Meurrens: Is there anything you would change about the process? This person says that it shouldn't be visa officers who are deciding it because of the pressure of the numbered count and that it should be a neutral humanitarian agency. Any thoughts on that or the process at all? I see Raj shaking his head.
Raj Sharma: Well, why do we have administrative law? Why do we have statutory tribunals? We do that because given the volume of a particular application, these things are unsuited for courts and formal structures, they would have to be done by officers. That's the only way to deal with tens of thousands of applicants. What might be interesting, however, is that in the UK on an asylum claim, they assess asylum and in the event that asylum is not in the cards, they also assess humanitarian grounds whether to grant stay on that basis.
That might be interesting. You got 280,000 refugee claimants. It might be very interesting if you expanded the discretion under the refugee protection division to see whether you can say, okay, well there are convention refugees or there may be a basis to grant some kind of status. Maybe we're going down that way as well.
If we can't land permanent residence, if we can't do five to 10,000 a year, or that's the most, and we've got 60,000 in the queue, maybe again, we go down the UK pathway and we grant indefinitely to remain. We grant some sort of a status above that of a work permit or open work permit, something below PR. That might be a way to manage the present backlogs and strain on the system.
Deanna Okun-Nac...: Yeah, that's what the CBA has recommended. I was on the working group that drafted the hundred recommendations. We have recommended that, or the CBA has recommended that all of the H&C, PRA, refugee claims be brought under one of those tribunals within the IRB so that we can have that kind of continuity rather than have it all fractured among visa offices abroad, in Canada. That there should be a single process even for, well, if we ever get back overseas refugee clients for anybody other than from Sudan that there's a uniformity, consistency, transparency, reviewability. All that sort of thing.
Steven Meurrens: I'd be stunned if it happened, but good on [inaudible 00:41:20].
Deanna Okun-Nac...: Me too, but honestly I mean, I think that it would be a real elevation.
Steven Meurrens: So we have a live comment from YouTube, which is, "Mr. Raj, bravo, and well said. Your approach might seem complex, but I really do see the point."
One of a tangential question, since there wasn't really a question, but that gets brought up, is that these are complex applications. The sense that I'm getting, if it hasn't been clear already, is that it's not really possible to commodify them or do shortcuts. That each of these applications, how many hours would you say you go into meeting with clients, preparing? Raj's eyebrows are going up. Hannah is grimacing. Deanna looks like she's choking herself.
Raj Sharma: I write very quickly, writing submissions alone, I think the written part is three hours. It's about two to three hours. It's just writing. It's just the submissions. That doesn't include application preparation, the review of the client documents, the meetings with the clients, all this. There's a lot of back and forth. It is time intensive.
Deanna Okun-Nac...: Yeah. Yeah. I mean with the meetings included, I think it's close to a week of solid [inaudible 00:42:45].
Raj Sharma: It's time.
Deanna Okun-Nac...: And the research, it depends if I've done other claims from that particular region before, but it's intense.
Raj Sharma: Yeah. The country condition review, the past refugee decisions, the RADs, the federal court, the other case law update, review of case law, it's hours. It's hours. I want to point out one thing. I think Hannah mentioned this as well or Deanna did.
Bear in mind when we talk about compelling or we talk about something dramatic, we don't need a Bollywood movie. We don't need Sara Khan weeping. We don't actually need that. It depends on the nature of the request. The H&C, the exemption or what we're asking for the officer is commensurate with the nature of the non-compliance or inadmissibility.
Deanna Okun-Nac...: For sure.
Raj Sharma: For example, I have a long-term temporary [inaudible 00:43:40] worker from Fiji in Canada for 10 years. All the kids are here. They spent all their schooling in Canada. They come from a one room house in Fiji, which was made out of tin and Cyclone Winston has devastated the low-lying areas of Fiji, which is where they're from. They're poor. He attempted to navigate the PNP system and he's always half a point short on the language requirements. He's done the IELTS five, six times.
Now that ask is pretty direct. He would've made it, but for. So those magical words. Like my client would've been a permanent resident, but for. My client would've been a permanent resident, but for the fact that she became 22, seven days after her father became eligible to sponsor or the father was a permanent resident himself. The but for is really important. So what's that gap?
The bigger the gap, the more the H&Cs, the more compelling it needs to be, the more melodramatic or grammatical or compelling it needs to be. If the gap is this much, then you need that much. So that's also important as well. So again, a good lawyer is never going to use percentages.
A good lawyer is always going to be a little bit careful in terms of asking for discretion or remedy or giving that advice. At the same time, it depends on the circumstances under which the application is being sought. What is the nature of the [inaudible 00:45:06] of non-compliance. That informs the level of the H&Cs. So yeah, you have a crime in there, you're going to need that much.
Deanna Okun-Nac...: That is so smart. Yeah. For sure. Conversely, if your client is trying to overcome a medical exemption and they need dialysis every day for the rest of their life, it's a big ask because of the cost. So you need to understand that as Raj says, exactly, it needs to be commensurate with the exemption you're requesting. They do look at the dollars and cents of it. So you're going to need to come up with extremely compelling H&Cs.
Steven Meurrens: Do you always recommend that clients get things like psych reports, counselor statements?
Deanna Okun-Nac...: Really depends on the facts. Yeah. I mean to me, somebody who's seen you once and is like this person is going to suffer hardship, is worth much less than somebody that you've been seeing routinely for three years. It really depends on how much turns on the psychological component. I don't just do it for the sake of it.
If this is somebody who really is going to suffer because of something fundamental to their mental health, it will depend whether or not that's something they have been receiving treatment for. I don't do it just as a boilerplate. This is something you need in order to make for a successful application.
Raj Sharma: We can take some guidance from our brethren, brothers and sisters in the family law bar. If there's children, if there's an issue of separation with one of the parents you can use... They use those experts all the time to inform the court as to the best interests of the child or the impact on the child as to separation of a caregiver or a parent. So there is a great deal of scope for the use of such expert opinion.
Again, discussed in Kanthasamy. Be careful though of the adverse case law in the federal court, the higher gun expert, the advocative expert, watch out for that. Use those individuals that are used to the court process that's going to maintain their objectivity. You've got to stay away from the bias because you are going to sink a potentially strong case if you give the officers some concerns as to the nature of that expert opinion.
Deanna Okun-Nac...: Sure. One that I've done that was exceptionally useful is in the case of trauma, where one of the reasons why somebody does not want to return to their country of origin or citizenship is they suffered. Actually one that was the most helpful expert opinion was they actually did... This was to explain the neuroscience of the trauma. They actually did a brain scan and showed through the brain scan the evidence of how the trauma had impacted their development. It was really a fascinating report.
I do think that it led to a positive decision where they had suffered severe childhood trauma and every time that they had to confront the idea of being returned to their country of citizenship, they suffered severe post-traumatic stress. It had actually resulted in a learning deficiency. It was really wild how it showed up on the brain scan, the degree of atrophy of certain parts of their brain, but it was based on real science. I think that that did have a meaningful impact. They're expensive is the problem. So it does [inaudible 00:48:53].
Steven Meurrens: Well, and that's one of the unique things is that because this is the most discretionary areas, your express entry CEC candidate is basically a reference letter or maybe two or three. H&C like we joked is either a novel or an encyclopedia. So the most vulnerable and heart-compelling stories do take a lot more time to prepare.
Deanna Okun-Nac...: Totally. I'm doing one right now with a child in their country of citizenship, was not able to access various medical or educational tools. We had letters from experts in their country of origin saying, "This is just not a thing here." Getting those doctors in the country of origin to write those kinds of letters is very hard. Which doctor wants to say we don't have the capability of dealing with a patient of this nature?
Steven Meurrens: Well, and it's one of the ways that they will... A common way to refuse this is let's say the kid in Canada is receiving some sort of medical care and the applicant, the mother, the father says, "Well, this care is not available in," I don't know, "Angola." The officer will say, there's no independent evidence to confirm what the level of medical care is.
Deanna Okun-Nac...: Right.
Steven Meurrens: Just looking at the time. Final thoughts from any of you on this category? Things that you would, if you had one to two sentences of what you would want people to know or information that they can provide if they contact you about one of these?
Hannah Lindy: That's a lot to distill into two sentences.
Raj Sharma: I would refer to this excellent text that does cover off the H&C as a [inaudible 00:50:40].
Steven Meurrens: That's like the genie wish of the third wish being more wishes where you turn the two sentences into a book.
Raj Sharma: I agree with Deanna on that point. You would have to have expert witnesses when you have, for example, medical need, the child is autistic, the child has a particular condition and you need to assess that and the treatment that they're getting right now versus treatment going back.
So on that point, if it's about final advice, address the scenarios at play. What happens to this family unit? What happens to the children? What happens if they get to remain here? It's sunshine, it's blue skies. It's this vista of unlimited potential and happiness and poetry and unicorns.
Steven Meurrens: Oh, I was going to say unicorns.
Raj Sharma: If we go back...
Steven Meurrens: Rainbows.
Raj Sharma: It's going to be the land of Mordor. It's going to be Sauron and his armies sweeping across Gondor and Rohan. It doesn't have to be that clear, but you must address the scenarios, which is, and back it up with evidence. If you grant an exemption, this is what happens to my family and it's my family now, my family, my client. If you don't grant, this is what is going to happen. It's going to be ABCD.
It has to be realistic and based on the country conditions and the available evidence, plausible, credible. Maintain your reputation when you do this. Steven's got... He's being praised by officers as to his reputation. That reputation matters. So don't overplay your hand, but certainly don't shirk from your responsibilities either. So that's what I would say in closing.
Deanna Okun-Nac...: Yeah.
Steven Meurrens: Awesome. Deanna or Hannah?
Deanna Okun-Nac...: I would say that don't overplay your hand. Not just because of your reputation with officers, but you don't play with your client's hope. I think we owe an ethical duty to our clients to not take advantage, particularly in this kind of a situation and really be ethical.
The other comment I'm going to make is that the idea of disconnecting, making it so that refugee claimants can't simultaneously apply for humanitarian compassionate status, that needs to go. There's absolutely no logical reason why they should not be allowed to do both.
The distinction between a refugee claim and an H&C application is very challenging to make. Making people choose one or the other doesn't make any sense. The reason it was introduced was because it forestalls removal, which it a hundred percent does not, but I think that needs to go.
Steven Meurrens: Well after bill C-2 comes in, they won't have to worry about that choice. What you raise there is an interesting... On terms of playing with hope, one of the frustrating things about being a lawyer sometimes is you can have four lawyers say, look, I don't think the odds of this are very high. The client will go to the fifth person who says, "Guaranteed success, give me $10,000, $20,000." The client often will often go to the person who says what they want to hear, which is a tricky thing. Hannah, final thoughts?
Hannah Lindy: I think just from my perspective, it's well worth putting in the effort and the time up front to put in an application that's as complete and as strong as possible from the get go. I mean, going back to Justin's question about skeleton applications. I've put them in, in standalone H&C applications a few times in the past, but only where there was maybe we're going to have to do a stay eventually or there was some real urgent need to just get it in so we could say an application had been made.
Of course obviously you update it and put in a [inaudible 00:54:54] application after that. These are information, document heavy applications. I think sometimes clients think that you just slap them together as long as you put the application forms in and the documents that are in the checklist, that's the application. Really as both Raj and Deanna said, these applications take hours to put together in the research, the writing, the interviewing, the clients, getting to know them, figuring out how to best advocate for their case.
I think that even if it takes longer to put together and you absolutely have to put in the time and the effort up front because again, the burden is on the applicant to put in front of the officer any factors that they want to be considered. An officer's not going to come back and ask you, "Oh hey, can you clarify this? Can you give me more information on that?" It's all on your shoulders.
Deanna Okun-Nac...: For sure.
Steven Meurrens: It's such a dense topic. We've been talking, Raj just messaged me saying we could go for another hour on this and it is one of those topics where you talk for an hour. We've touched the top of the iceberg in terms of everything out there on this, but people do have questions, they can contact any of us. We are out of time for today. Thanks for coming on. This will be an episode that says with Raj Sharma that has Raj Sharma. Awesome. Take care, guys.
Raj Sharma: Thank you so much.
Hannah Lindy: Thanks a lot. Take care.
Raj Sharma: Take care.
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