To most individuals, even those familiar with immigration, the words ‘risk’ and ‘discrimination’ will likely conjure up immediate thoughts of refugee claims under s. 96 and s.97 of the IRPA.
Indeed, if one were to follow IRCC’s own instructions on factors to consider in an humanitarian and compassionate assessment, risk and determination are not obvious on the face, as per the online instructions captured below.
Factors to consider in a humanitarian and compassionate assessment
Applicants may base their requests for H&C consideration on any relevant factors including, but not limited to
establishment in Canada for in-Canada applications;
ties to Canada;
the best interests of any children directly affected by the H&C decision;
factors in their country of origin including adverse country conditions;
health considerations including inability of a country to provide medical treatment;
family violence considerations;
consequences of the separation of relatives;
inability to leave Canada has led to establishment (in the case of applicants in Canada);
ability to establish in Canada for overseas applications;
any unique or exceptional circumstances that might merit relief.
Certainly, adverse country conditions include discrimination and indeed there is clarification that membership of a group being discriminated against is a s.25(1) IRPA consideration as per this excerpt below.
Assessment of discrimination
In assessing whether an applicant will be affected by discrimination, discrimination can be inferred where an applicant shows that they are a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s profile is relevant under subsection 25(1), whether or not the applicant has evidence that they have been personally targeted.
On risk, it was always a word I utilized with some caution in an H&C application. Indeed, IRCC’s instructions provide explicitly that s.96 and s.97(1) IRPA factors are not be considered, but must consider these elements related to hardship.
Limitation on assessment of risk in an in-Canada application
Subsection 25(1.3) of the Immigration and Refugee Protection Act states the following: “… the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”. In other words, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if returned to their country of origin.
Subsection 25(1.3) applies only to H&C applications made in Canada.
Yet, there seems from the instructions nothing ‘extraordinary’ about risk that would make it more deserving of space in submissions and evidence compared to other factors (establishment, ties, best interest of the child, or generally poor country conditions not arising to the level of risk or discrimination).
However, the results of an H&C data request paints a different story about the importance of risk and discrimination.
Thanks to the work of our statistician Joe Ashta and our assessment of data received from IRCC through a data request, we have a different picture of how important risk and discrimination is to the assessment of a successful humanitarian and compassionate grounds application.
Before this request I was even unaware that IRCC classified humanitarian and compassionate grounds applications into several categories, two of which we will discuss are straight H&Cs (without risk or discrimination) and H&Cs with risk and discrimination.
Note on abbreviations: HC: Humanitarian and Compassionate Straight Applications; +RD: with Risk or Discrimination.
How much more successful are H&C Applications with risk and discrimination?
For 2015-2020, HC applications has a 49% approval rate, +RD is 60%.
For 2015-2019, HC applications has a 54% approval rate, +RD is 64%.
For 2020 (Jan – Sep), HC applications have a 28% approval rate, +RD is 37.5%.
These data are aggregated across all countries of citizenship.
How often are risk and discrimination claimed vis-à-vis straight H&Cs?
For every 100 straight HC applications, there are 340 +RD applications.
What the Stats Tell Practitioners?
It tells us that risk and discrimination are being argued (or at least classified as such by IRCC), perhaps not with direct and assumed knowledge of how important it might be to the outcome.
Applications that are assessed under the risk and discrimination category have been 11% more successful from between January 2015 to September 2020.
I can certainly tell you from many H&C applications that I have reviewed from practitioners, particularly those who do not come from a background of significant work with refugee claims, or appellate work requiring significant legal research, or academia, that submissions regarding risk and discrimination are often lackluster. H&C applications are lacking references to the National Documentation Packages, properly translated and updated news articles (particularly from domestic sources), and as well strong affidavits that clearly tie personal experiences to some of the more generalized conditions spoken to in the evidence.
It also means that failed refugee claimants whose risk of persecution or discrimination might not give rise to a successful claim can still very much utilize the same factual matrix to ground an H&C on hardship. One of the more difficult determinations in immigration law is to determine when to file a refugee claim versus when to file an H&C with the knowledge that a refugee claimant is ineligible to be considered for Permanent Residence on H&C grounds and may also be subject to a one-year bar shortly after their claim final (if not exempt). However, as a future report we are working on and the snippet above shows, 2020 has started what appears to be a downward trend in H&C approvals and an increasing demand for relief.
We are working hard to publish our first Arenous report (will be short, digital, and interactive) in the New Year.
I will likely also put up a post tomorrow (if not in early days of 2021) regarding my New Years plans and some updates.
Thanks folks again for being such a great reading and interacting audience in 2020. May next year be a recovery year (and a growth year!) for us all.