Recorded on June 27, 2013 - Under changes to the refugee and immigration system, a Humanitarian and Compassionate application (H&C) and a refugee claim cannot be made at the same time. In fact, if your refugee claim fails, in most cases you are barred from making an H&C application for one year. This webinar, intended for community workers, will provide legal information to highlight some of the factors to be considered when this important strategic decision is made, and offers hypothetical scenarios for discussion. For more information or to watch an archived recording of this webinar visit:http://yourlegalrights.on.ca/webinar/refugee-claim-or-hc

1. CHOOSING BETWEEN
MAKING A REFUGEE
CLAIM OR AN H&C
Factors to consider and scenarios for
discussion

2. Downtown Legal Services
(DLS)
 Poverty law clinic associated with the
University of Toronto Faculty of Law
 Areas: criminal law, family law, refugee law,
tenant housing and university affairs

3. Overview
 Why do I have to choose?
 The basics of an H&C application
 The basics of a refugee claim
 Important differences between H&C
applications and refugee claims
 Factors to consider when choosing between
the two
 Withdrawing a refugee claim
 Hypothetical scenarios

4. Why Choose?
 New law: H&C application and refugee claim
cannot be made at the same time
 12 month bar: If refugee claim fails, cannot make
an H&C application for at least 12 months
 Exceptions:
 You have children under 18 who would be adversely
affected if you were removed from Canada, or
 You have proof that you or one of your dependants suffers
from a life-threatening medical condition that cannot be
treated in your home country
 If refugee claim fails, likely to be removed from
Canada before being able to make an H&C
application

5. H&C in a Nutshell
 An application for PR from inside Canada
 A request for an exemption from the rule
 Factors:
 Establishment
 Hardship

6. H&C in a Nutshell
 Examples of establishment:
 Family and friends in Canada
 Work
 School
 Community activities
 Examples of hardship
 War
 Natural disaster
 Lack of medical/mental health care
 No family or friends
 Domestic violence

7. H&C in a Nutshell
 Important distinction: risk and hardship
 CIC does not consider risk in an H&C
application
 Express the risk as a type of hardship
 E.g. Domestic abuse. Officer cannot consider the
risk she will face from the abuser. However, can
emphasize that she will suffer hardship because
there is no support or protection for abused
women in her country.

8. Refugee Claims
 Convention refugee
 race, religion, political opinion, nationality, or
membership in a particular group
 Persons in need of protection
 a personal risk of torture, risk to his life, or risk of
cruel and unusual treatment or punishment
 Must also show:
 Lack of state protection
 Specific risk
 No internal flight alternatives (IFAs)

9. Questions or Comments?
Lauren Pearce Kristin Marshall

10. Differences
H&C Applications Refugee Claims
• $550 per adult
• $150 per child under 22
• No cost
• No deadline • If claim made in an office, must complete
BOC during eligibility interview
• At a port of entry, 15 days after referral to
IRB
• Processing time up to 36 months • If from a DCO and made claim at an inland
office: no later than 30 days
• If from a DCO and made claim at a port of
entry: no later than 45 days
• If not from a DCO: no later than 60 days
• Decision could be made right at the end of
the hearing or up to a few months after
• Can be removed while the
application is pending
• Cannot be removed while the claim is
pending
• The more time in Canada, the • The less time in Canada before making

11. H&C vs. Refugee Claims
 Take into account all factors discussed:
 Based on her story, can she meet the definition of a
convention refugee?
 If yes, is evidence (both country research and specific
evidence of individual) available to support her claim?
 Which country is she from?
 If DCO, claim likely to fail. Current list:
http://www.cic.gc.ca/english/refugees/reform-safe.asp
 E.g. Mexico – 82.9% rejection
 How long has she been in Canada?
 Are there children involved?
 Any health consideration?
 Evidence to support discrimination or hardship more than
risk?
 Etc.

12. Examples
 Certain categories of people might be
better off making an H&C:
 Domestic violence
 Sexual orientation related hardship/risk
 Generalized risk
 Lack of medical care

13. Withdrawal of a Claim
 Is it possible to withdraw a refugee claim and
apply for H&C instead?
 Only if “substantial evidence has not been heard”
 No stay of removal

14. H&C or Refugee Claim?
Hypothetical Scenarios

15. Scenario #1: H&C or Refugee?
 Ms. Cruz came to Canada from Peru in 2010.
She came on a visitor’s visa which expired and
she has lived without status. Despite terrible
domestic abuse in her past in Peru, she has
thrived in Canada and has started her own
business. Can she apply for H & C? Should
she make a refugee claim?

16. Scenario #2: H&C or Refugee?
 Mr. Solarz came to Canada in December
2012. He is a Roma man and a father of four
children. His wife died of cancer. He works as
a cashier at a grocery store, and all of his
children are in school. Before he came to
Canada, he suffered serious racial
discrimination in Hungary. His oldest son was
bullied and beaten up by skinheads and police
failed to investigate or do anything. He fears
further incidents if they are sent back to
Hungary. Should they apply for H&C or make a
refugee claim?

17. Scenario #3: Withdrawing the
Claim
 Maria and Jose recently came to Canada. Jose
was a political activist in Colombia where he was
arrested by the police a few times and targeted by
paramilitary groups because of his activities.
Maria became known as Jose’s partner and was
almost kidnapped twice. They made a refugee
claim at the port of entry, and their hearing is in 30
days. They recently started having fights where
Jose hit Maria. She decided to leave him and find
a life for herself in Canada. However, there is a
problem: Maria’s refugee claim is dependent on
Jose’s, and she is not sure whether to continue
with the refugee hearing. Should Maria withdraw
her claim and apply for H&C instead?