Humanitarian and Compassionate Grounds
Under the principle of Humanitarian & Compassionate Grounds, the right applicant who is undergoing “unusual and undeserved hardship” or “disproportionate Hardship”, may be eligible to granted Permanent residence through this route. However, Ministerial Guidelines provide that this is not the regular route, and is available only in exceptional circumstances. To know more contact us.
1. Unusual and Undeserved Hardship- which means “not anticipated or addressed” by the Act or its regulations, and is “beyond the person’s control”.
2. Disproportionate Hardship is defined as “an unreasonable impact on the application due to their personal circumstances”.
Guidelines are useful, but not binding, and are not exhaustive or restrictive.
Applicant needs to show, that the denial of relief would post a certain risk of harm. - That risk must be a “personalized risk” in the sense that applicant must fall within the category of people who on this evidence submitted would face that risk.
1. Chirwa v. Canada (Minister of Citizenship and Immigration) (1970) 4 I.A.C. 338- H&C Grounds- “those facts, established by the evidence, which would excite in a reasonable man, in civilized community a desire to relieve the misfortunes of another—so long as these misfortunes warrant granting of the special relief”. – I will call it ORPP, with limited subjectivity as well.
If H&C Decision, doesn’t go in your favor, and Removal orders have been issued, and you have to seek JR of such decision, and following stay of such decision.
Three-part conjunctive test to be satisfied for stay of removal. Rizvi v. Canada (Minister of Citizenship and Immigration) 2009 FC 463.
a. whether there is a serious question to be determined by the Court;
b. whether the party seeking the stay would suffer irreparable harm if the stay were not issued; and
c. whether on the balance of convenience the party seeking the stay will suffer the greater harm from the refusal to grant the stay
As held in Rizvi, Para 17, purpose of exemption is not to create a new substantive right. So, it cannot be “a back door when the front door has, after all legal remedies have been exhausted, been denied in accordance with Canadian law” (Mayburov v. Canada (Minister of Citizenship and Immigration) (2000), 2000 CanLII 15700 (FC), 183 F.T.R. 280, 98 A.C.W.S. (3d) 885 at para. 39; also: Chapter IP 5 Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (IP 5), s. 1.4; Irimie, above at para. 26; Chau v. Canada (Minister of Citizenship and Immigration), 2002 FCT 107, 111 A.C.W.S. (3d) 804 (F.C.T.D.) at para. 27; Li v. Canada (Minister of Citizenship and Immigration), 2006 FC 1292, 152 A.C.W.S. (3d) 699 at para. 20).
Onus on Applicants to establish claim to positive H&C
 It is well established that the onus on an application for H&C relief lies with the Applicants. They were unable to meet the onus in this case where the information provided did not establish that they would suffer undue, unusual or disproportionate hardship by having to apply from outside Canada such that they would be entitled to an exemption from the normal requirement (IRPA at s. 11 and s. 25; Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) at s. 66; IP 5 at s. 5.1; Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 94, 228 F.T.R. 19 at paras 11-12 (appeal dismissed 2004 FCA 38,  2 F.C.R. 635).
Normal Requirements, need application under Section 66 to 72, of the regulation, that the application for H&R be applied from outside, and the onus is on the applicant to establish based on disproportion, unusual or undue hardship, that they apply from within Canada.
If highly educated, then argument of not having employment or able to find employment in India, will be turned down- as held in (o  This case can be distinguished from Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCA 470 (CanLII), 139 A.C.W.S. (3d) 915); in that case, the irreparable harm stemmed from the fact that employment in Canada was necessary to support his children who were not living here. That is not the case at bar where, in fact, there is insufficient evidence to conclude that the Applicants, some of whom are highly educated, cannot find employment in Pakistan)
Application seeking stay of removal pending H&R Application, needs three-part test to be complied with. (based on balance of probabilities)
1. Serious issue
2. Irreparable loss
3. Balance of convenience
Aboubacar v. Canada (Citizenship and Immigration)
1. Test of Section 25, and Section 97 IRPA are not same.
2. Section 25 required unusual and disproportionate hardship to the person concerned. Whether suffered by others or not is irrelevant.
3. Diabate v. Canada (Citizenship and Immigration),
4. 36] …The officer’s role in an H&C analysis is to assess whether an individual would face “unusual and undeserved or disproportionate hardship” if required to apply for permanent residence outside of Canada. It is both incorrect and unreasonable to require, as part of that analysis, that an applicant establish that the circumstances he or she will face are not generally faced by others in their country of origin. Rather, the frame of analysis for H&C consideration has to be that of the individual him or herself, which involves consideration of whether the hardship of leaving Canada and returning to the country of origin would be undue, undeserved or disproportionate.
5. Sometimes, “reasoned inference” is taken, of the circumstances of the home country, to arrive at hardship.
Section 25, Immigration and Refugee Protection Act.
All humanitarian Grounds, including “best interest of children affected”.
Evidence to show
· Letters from friends and family members in Canada
· Proof of employment or job offer
· Evidence that demonstrates hardship in your country of origin- Hardship evident from nobody in the home country to look after.
a. Document from doctor that he needs care and there is nobody to look after him.
b. Document from another doctor that he needs 24 hours care and there is no body to look after him.
c. Document from Distant family member, who says that he lives all alone and has nobody to help.
d. Document from Ankit Khetarpal
e. Document from Sheena Khetarpal
· Information about your children and their education in Canada
a. Ankit Khetarpal- lawyer in Canada, grandchild badly needs him story.
b. Sheena Khetarpal
· Medical records- all sorts of medical records
· Bank records- can provide.
· Police reports in instances of family violence
· Photos of you spending time with family and friends in Canada
Lots of photographs.
Best interest of the child
Thus, all potential physical and psychological impacts on the children must be taken into consideration.
· In case the applicant has children he/she may be asked to provide documents illustrating the children’s education lives in Canada. Such documents may be report cards, letters from teachers and friends at school, participation certificates in school and after-school events, etc. The children can also write letters themselves on why they want to stay in Canada and how important it is for them.