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Principles underlying humanitarian and compassionate decisions...

By Sharma Harsanyi Barristers & Solicitors

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 attend on the date set for the interview. The presence of a representative

should not impede the interview process.

...

6. The ?case to be met?

There is no particular ?case to be met.? Applicants determine what they feel are the H&C

factors for their particular circumstances and make submissions on them. While officers

do not have to elicit H&C factors (i.e. delve into areas that are not presented in the

applicants' submissions), it is a good practice to clarify possible H&C grounds if these are

not well articulated.

Situations may arise where an officer has information or evidence from a source other

than the applicant (i.e. extrinsic information ? see definition in Section 6). If the

information will be used when making the Stage 1 or Stage 2 assessment, officers must

share the information with the applicant and allow submissions to be made on this

information.

In instances where the source of the information is confidential, the obligation remains to

share the gist of the information with the applicant so that they are aware of the case to

be met. There is no need to release the identity of a confidential source. This is a

sensitive situation in which an officer must exercise discretion. If required, officers should

seek advice from the regional program specialist.

In cases where the information on file is not relevant to the decision, officers should make

a note in the file to this effect. 

Full post as published by Canadian Immigration Blawg on August 29, 2010 (boomark / email).