Stewart Sharma Harsanyi Immigration Law Firm Blog

Options for Exploited and/or Abused Temporary Foreign Workers

In my 15 years practising immigration law, I have encountered many exploited and abused temporary foreign workers (usually low-skill/low-wage). They are often exploited or abused by members of their own community -sometimes even by their own family. This abuse/exploitation takes on many forms. For years, foreign workers were caught in a dilemma. Report the exploitation/abuse and risk removal/deportation from Canada or continue in an untenable situation for hope of working (even at their pitiable wages) or staying permanently. Options for Exploited/Abused Temporary Foreign Workers Some sought relief via a humanitarian and compassionate application (the "H&C"). The outcome of course depends on the officer. Some have been sympathetic, others not so much. I sought judicial review on such a refusal. Justice Fothergill's decision will help many others I think: [17] The immigration officer did not dispute that Ms. Kaur had been the victim of fraud, and even praised her willingness to assist in the investigation of her employer. While acknowledging that her employer’s actions had undermined her AINP application, the officer appears to have concluded that the situation was effectively resolved by affording Ms. Kaur an opportunity to seek new employment or obtain a new LMIA. The officer ultimately gave little... Read more →

Regulation 117(9)(d) Consequences of Failing to Disclose a Family Member

The Minister of IRCC, Mr. Ahmed Hussen, recently announced a two-year pilot program which allows some immigrants to sponsor their undeclared, non-accompanying family members. These individuals would have been previously barred under the family class sponsorship pursuant to section 117(9)(d) of the IRPR. This pilot is significant as it shows the government’s changing mindset towards giving more flexibility to the current harsh regime set out in 117(9)(d). Announcing this new pilot, Minister Hussen said that the “federal government recognizes that the regulation was unfair” and that, “newcomers who failed to declare immediate family members as they first came to Canada were barred to sponsor them. Today, we right that wrong.” The new policy applies to sponsors that came as refugees or as accompanying family members. However, the policy leaves others out in the cold. One class gets to sponsor even previously undisclosed family members; the other class face potential misrepresentation and removal from Canada. This entails the writing and referral of a s.44 report; a hearing at the ID and thereafter an appeal to the IAD. The new policy obviates much of s.117(9)(d) -and so it makes little sense to take enforcement action against sponsors given that, on the other... Read more →

The Humanitarian and Compassionate Application and the Supreme Court decision in Kanthasamy Explained

Section 25 of the Immigration and Refugee Protection Act of Canada allows an officer to exempt an applicant from almost every requirement imposed on applicants for permanent residence. This exemption is based on "humanitarian and compassionate" grounds and has been part of immigration legislation and the discretionary powers of the executive in this country for decades. Section 25 overcomes non-compliance with the Act and most inadmissibilities. It is, in essence, a safety net allowing an officer to consider all the facts and determine whether relief is warranted. The section allows immigration officers to "soften the sometimes harsh consequences of the strict application of IRPA". It is fundamentally a subjective analysis. The scope of this discretion is incredibly broad (and broadly worded) and in my opinion, constitutes a separate immigrant class (and always has). And a lean, silent figure slowly fades into the gathering darkness, aware at last that in this world, with great power there must also come–great responsibility! There is no requirement that immigration officers making such decisions have a legal background; they are expected to deal with legislation, Federal Court jurisprudence, counsel submissions, country conditions (in a return scenario) and, often, expert medical and psychological reports. The guidance... Read more →

Principles underlying humanitarian and compassionate decisions...

Immigration officers deciding on applications filed on humanitarian and compassionate grounds need to have regard to administrative principles. These are contained within the operational manuals: 4. All the evidence An officer should consider and weigh all the relevant evidence and information, including what the applicant and the officer consider to be important. Officers must not ignore evidence or place too much emphasis on one factor to the exclusion of all other factors. They must look at the whole picture. Any information or evidence that is not relevant or should not be given much weight should be documented appropriately. 5. The right to be “heard” One of the fundamental components of natural justice or fairness is the right to be heard. This means that applicants must have a fair opportunity to present their case. For the purpose of assessing an H&C application, the applicant's written submissions may contain the information an officer needs to make a decision. The right to be heard does not require an absolute right to a personal interview or hearing and, if an interview is held, there is no legal right for the applicant’s representative to attend the H&C interview. However, when available, representatives are welcome to... Read more →

recent changes to the H&C (Humanitarian and Compassionate) assessment regime

Q & A's on the recent changes to the H&C (Humanitarian and Compassionate) assessment regime (from the CIC website): 18. Will my existing H&C application be affected by these changes? All H&C applications pending at Royal Assent will continue to be examined according to section 25 as it was prior to Royal Assent. This means, for example, that reference to risk factors that fall under section 96 and section 97 will continue to be considered as part of the application. 19. Will H&C decisions still consider factors related to risk in a country of origin? H&C decision makers will no longer consider risks that are assessed within the refugee protection process, i.e. risk of persecution based on grounds set out in the Refugee Convention or risk of torture or of cruel and unusual treatment or punishment. H&C decisions will continue to focus on considerations like establishment in Canada, best interests of the child, relationships in Canada, hardships that affect the foreign national and the country of origin’s ability to provide medical treatment. 20. Why was the public policy provision removed from the H&C provisions? The new legislation separates out the use of public policies and H&C decisions because they are... Read more →

H&C Applications

I have had occasion to submit a number of "Humanitarian and Compassionate applications" under s.25 of the Immigration and Refugee Protection Act. The following excerpt from a recent Federal Court decision points out a number of important issues: 1. that the applicant has the onus to provide the documentation; and 2. that the decision is a discretionary one which mandates respect from the reviewing Court; and finally 3. that the decision doesn't actually take any right away from the applicant (and -- my reading -- therefore a refusal to exercise discretion breaches no significant rights): [26] In an application based on humanitarian and compassionate considerations, the onus is always on the applicants to provide the documentation upon which the determination will be based (Zambrano v. Canada (Minister of Citizenship and Immigration), 2008 FC 481 at paragraph 39 (Zambrano); Melchor v. Canada (Minister of Citizenship and Immigration), 2004 FC 1327 at paragraph 13 (Melchor); Arumugum v. Canada (Minister of Citizenship and Immigration), 2001 FCT 985 at paragraph 16). Again, it has been reiterated by this Court numerous times that the humanitarian and compassionate decision making process is a highly discretionary one (Quiroa v. Canada (Minister of Citizenship and Immigration), 2007 FC... Read more →