Submitting a refugee claim
or an application for humanitarian and compassionate considerations (H&C)
The main sections governing refugee claims in Canada are sections 96 and 97 of the Immigration and Refugee Protection Act.
The Refugee Protection Division will grant refugee status to a person with a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion. The applicant will have to show that he or she cannot obtain the protection of the countries of which he or she is a citizen – for example, by seeking assistance from law enforcement authorities – and that he or she cannot find refuge within his or her own country. The applicant’s fear must exist at the time of the hearing.
The Refugee Protection Division will also be able to grant protected person status to a person in Canada who is at risk of torture, risk to life or risk of cruel and unusual treatment or punishment if the person demonstrates that they are unable to obtain the protection of their country and that they have no internal refuge. The person to be protected will have to demonstrate that his or her risk is “individualized”, that is, that he or she is specifically targeted.
The threat or risk must not result from the country’s inability to provide medical or health care, in which case an application for humanitarian and compassionate considerations would be the appropriate course of action.
A humanitarian and compassionate application may be made from Canada if a person would suffer undue hardship if forced to return to their country of origin to apply for permanent residency. The undue hardship that can be alleged is varied.
Some of the circumstances that may warrant an H&C application are as follows
- a person whose life is centralized in Canada, but who has lost permanent residency due to criminal inadmissibility;
- a refused refugee who has been able to prove settlement in Canada for several years (a period of 12 months must have elapsed since the final refusal of his or her refugee claim);
- a person unable to obtain medical care in his or her own country;
- a person who must remain in Canada because of a Canadian citizen family member;
We can advise you on these two options and give you the benefit of our experience in this area. In both applications, the way you write your story and the evidence you provide will be crucial. Attention to detail will be required to convince the Commissioner of the credibility of your story or to persuade the IRCC officer to use his or her discretion in granting you permanent residency.
