Humanitarian and Compassionate Factors for Consideration
In Chirwa v. Canada (Minister of Manpower and Immigration) (1970), 4 I.A.C. 338
(I.A.B.), “compassion” [is defined] as “sorrow or pity excited by the distress or
misfortunes of another, sympathy” […] “compassionate considerations” must…be
taken to be those facts, established by the evidence, which would excite in a
reasonable man in a civilized community a desire to relieve the misfortunes of
another so long as these misfortunes “warrant the granting of special relief” from
the effect of the provisions of the Immigration Act. “Humanitarianism” is defined
as “regard for the interests of mankind, benevolence.”
There are humanitarian and compassionate factors known as Ribic factors which
include: the seriousness of the offences leading to the deportation order; the
possibility of rehabilitation; the length of time spent in Canada and the degree to
which the appellant is established here; the family in Canada and the dislocation
to the family that deportation would cause; support available to the appellant,
within the family and within the community; and potential foreign hardship the
appellant will face in the likely country of removal.
More factors have been established in case law such as the seriousness of the
misrepresentation and the circumstances surrounding it; evidence of remorse; the
length of time spent in Canada and the degree to which the Appellant is
established in Canada; and the best interests of a child directly affected by the
decision.
In regard to the seriousness of the misrepresentation, it is not a felony. At best, it
is a misdemeanor. No one was hurt by the misrepresentation. The Minister has
not demonstrated how the misrepresentation would have affected her refugee
status since the factors that led A1 to seek refugee status are not changed by her
concealing her citizenship.
In regard to the possibility of rehabilitation, A1’s wrongdoing is not one that would
necessitate rehabilitation.
In regard to establishment in Canada, A1 settled in Canada in 2014 when all her
children were minors. They have grown up in Canada. They have gone to school
in Canada and made friends. Two of her children have graduated high school in
Canada and engage in community activities such as volunteering. A1 has
managed to acquire a house worth $500,000. That amounts to a significant
establishment of life in Canada.
A1 and her family have lived in Canada since December 2014, more than six and
a half years. A1’s minor children do not know any other life apart from the one
they have had in Canada. It will be unfair to remove them from Canada and force
them to begin a new life elsewhere.
Case Law Establishing Humanitarian and Compassionate Factors
X (Re), 2021 CanLII 68622 (CA IRB)
The appellant was a man who fled Algeria due to the sexual assault he faced and his
LGBTQ2+ status. He told his mother that he was assaulted but did not disclose that the
assault was sexual in nature. The appellant did not tell his father because he feared
how he would react. The appellant’s aunt and his uncle visited him and asked him to file
a complaint with the police. He tried to file a complaint but was not successful. When
the appellant came to Canada, he told his lawyer that he was sexually assaulted. The
RDP stated that the appellant’s failure to state that the assault was sexual in nature in
the complaint that he wanted to submit to the police amounted to a contradiction. The
appellant said that the reason he did not reveal that he was sexually assaulted is
because he feared his father’s reaction while in Algeria. He also added that his father
would have blamed him for attending the party where he was assaulted. He feared that
his father would take out his anger on him. When he came to Canada, he was
comfortable enough to open up about the sexual nature of the assault to his lawyer. The
Board held that there was no contradiction. It is the RDP that had misunderstood the
appellant’s testimony.
Further, the Board held that the appellant had established a fear of persecution if he
was to go back to Algeria, and that there would be no state protection for him if he went
back to Algeria.
In regard to the current case, the burden of proof is upon A1 to demonstrate that at the
time of making her testimony, she was under fear of the repercussions of revealing that
she was of Finnish citizenship. You did not go into detail in regard to the circumstances
that led A1 to seek protection from Somalia. However, you have stated that you have
credible evidence that the children will be adversely affected if removed from Canada.
You must demonstrate that the factors that led A1 to seek protection from Somalia will
come into play once they are removed from Canada. Her life and those of her adult and
major children will be in danger if they go back to Somalia. By that, you will have proved
the fear of persecution.
The Minister has not demonstrated that there was a contradiction in the factors that led
A1 to seek protection from Somalia. The only issue is that A1 omitted the fact that she is
of Finnish citizenship.
The Board also held that the appellant was subjected to trauma when he was asked by
the RDP to go into the gory details of his assault. The RDP seemed to blame him for not
reporting the sexual assault earlier. He was shaken most of the time when testifying.
You did not go into detail in regard to A1’s testimony.
Etibako v. Canada (Public Safety and Emergency Preparedness), 2010 CanLII 95412
(CA IRB)
The appellant was born in Democratic Republic of Congo (DRC). His parents came to
Canada in 1997. He appealed a deportation order that was issued on the grounds of
serious criminality. The appellant had been convicted of two counts of robbery. He had
insinuated that he was carrying a weapon, when he wasn’t. It was held that his actions
towards the victims of the robberies had been traumatizing. However, the deportation
order was reversed because of the trauma that the appellant had faced as a child.
When he was young, their house was set ablaze. He survived by jumping out of the
window. He sustained injuries as a result of the fire. His sisters survived because they
were not in the house at the time of the fire. The Board held that this traumatic event
was compassionate cause to reverse the deportation order. Further, the Board stated
that the appellant was a young man (he was 20 years at the time), who could reform his
behavior.
In the present case, A1’s wrongdoing has substantially less weight compared to the
appellant’s convictions of robbery. A1 is remorseful and does not intend to misrepresent
or omit facts in the future. A1’s oldest child is 19 years old. None of her five children
committed any wrongdoing. They are well-mannered and do not engage in any illegal
activity. However, they will be detrimentally affected if they are removed out of Canada.
It would be unjust to disrupt their lives without any culpability.
The trauma faced by A1 justifies a reversal. [GO INTO DETAIL ABOUT THE TRAUMA
SHE HAS FACED AND THE CIRCUMSTANCES THAT LED HER TO SEEK
PROTECTION FROM SOMALIA].
Moore v Canada (Public Safety and Emergency Preparedness), 2021 CanLII 81253
(CA IRB)
The appellant appealed a removal order which was issued as a result of her failure to
comply with the residency obligation. The Board held that indeed, she had not complied
with her residency obligation. The Board considered her degree of establishment in
Canada, family ties in Canada, hardship and dislocation that would be caused to the
appellant, and the best interests of the children directly affected by the appeal.
The appellant had lived in Canada for 25 years. She had deep ties with her children and
their families who all lived in Canada. The Board held that dismissing her appeal would
have caused the appellant’s family to be dislocated. That family separation would have
been contrary to the objectives of the Act. The Board stated that dismissing the appeal
would put the appellant in the same state as she was before she came to Canada. The
appellant had not seen her children for about three to four years. The Board held that it
would not be in the best interests of her children to dismiss the appeal.
In the present case, A1 has lived in Canada for more than six years. She lives with all
her children in Canada. The dismissal of A1’s appeal would lead to her family’s
dislocation, contrary to the objectives of the Act. Dismissing the appeal will put A1 right
back to the position she was before she sought protection from Somalia. It will not be in
the best interests of A1’s children to dismiss the appeal. A1 has built a life for them in
Canada. She has provided shelter by investing in a home worth $500,000. She
continues to provide food, clothing, education, insurance and other important needs. If
A1 and her children are removed from Canada, she will not have a home for them or
means to provide for their needs. A1’s children go to school and have friends in
Canada. If they are removed, they will be forced to adapt to a new life and a new
system of education, which may hinder their development. Therefore, it is in the best
interests of A1’s children to allow A1’s appeal.
Komaeihaghighatdel v. Canada (Citizenship and Immigration), 2011 CanLII 58185 (CA
IRB)
The appellant had failed to disclose her marital status and child during application for
refugee protection. She did that to obtain permanent residency by being a dependent of
her father. The Board held that her unique circumstances, ties to Canada, and the best
interests were humanitarian factors to allow her appeal.
The appellant’s husband died when he accidentally fell in a well. Their son witnessed
the accident and suffers from resulting trauma. The appellant’s in-laws became hostile
towards her and even implied that she had caused the death of her husband while in
Canada. They started threatening her, seeking retribution for her husband’s death.
Removing her from Canada would mean that she would have to leave her loving family
in Canada and to go back to her hateful relatives in Iran.
The appellant’s ties to Canada were established by the fact that she has supportive
family in Canada who run a successful business and would help her establish herself.
The Board extended the best interests of the minor children to the Appellant’s mother.
The Appellant was forced to leave her child Iran due to depression and live in Canada
where she had supportive family. It meant that one of her family members had to remain
in Iran to take care of her child. The Appellant’s mother came to Canada to take care of
her 15-year-old son. The Board considered that dismissing the appeal would mean that
the Appellant’s mother would also have to return to Iran, leaving behind her 15-year-old
son. The Board held that it was in the best interests of the Appellant’s 15-year-old
brother to allow the appeal to allow the Appellant’s mother to remain in Canada and
take care of him. It was determined that the best interests of the child overrode the
Appellant’s misrepresentation and failure to disclose.
A1 has managed to settle in Canada, build a home and provide all necessities for her
children. Dismissing her appeal will mean that A1’s minor children will be removed from
Canada and be forced to begin life in another country where A1 has no source of
income, has no home, and can’t provide for the minor children. The minor children are
the ones whose overall health and mental wellbeing will be affected by the sudden
disruption from a good, peaceful life to a place where there’s nothing for them. The best
interests of A1’s minor children override the misrepresentation she made.
Saeidi v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129890
(CA IRB)
The appellant had misrepresented that he had spent more than 730 days in Canada for
him to be given permanent residency when in truth he had spent less than 730 days.
The appeal was allowed due to establishment in Canada, family ties/support, best
interests of the child, and immigration objectives weighing in the Appellant’s favor.
The appellant and his wife owned a house and two apartments which were under
construction at the time of the appeal. The appellant was a commission agent and was
in the process of completing a course to become an immigration consultant. He had
started a business and had been given a permit to build a factory.
The appellant, his wife and all children were Canadian citizens. Three of the children
were minors at the time of the appeal. The appellant had been away from Canada for a
period of two years when he did not see his children. However, they communicated
virtually via video conference. During that time, they missed each other so much. The
appellant’s eldest daughter expressed that since the Appellant returned, they had
experienced so much happiness. She also stated that they would not go back with him if
he was removed from Canada. The Board held that this weighed largely in his favor.
The objectives in sections 3(1)(d), 3(1)(e), and 3(1)(f) support reuniting of families in
Canada, successful integration of permanent residents into Canada and attainment of
immigration goals. The removal of A1 would be contrary to integration of permanent
residents into Canada and attainment of goals.
It was determined that the Appellant’s establishment in Canada, family ties/support,
best interests of the child, and immigration objectives overrode his misrepresentation.
Similarly, A1 is established in Canada and has strong ties with her family. It would be in
the best interests of her minor children to allow her appeal as removal from Canada
would disrupt their lives. The foregoing considerations override A1’s misrepresentation.
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