Hazara Nation

Department reviewing humanitarian clause, the final chance for many to stay here

"Canada is losing out on talented immigrants who are choosing to go to other countries, such as Australia," he said. Q: How will Canadians and would-be ...A unique clause in Canada's immigration law often used as a last resort by failed asylum seekers is under review in the wake of proposed new immigration rules.

The review is partly prompted by an estimated backlog of 35,000 applications under the "humanitarian and compassionate" clause, but immigration lawyers say it's a myth that the clause is being abused.

"It is a way for somebody to come and remain in Canada who otherwise would not be able to," said Queen's University immigration law professor Sharryn Aiken of the H&C clause, which has been in place for four decades.

"It's intended to be a positive program and the (immigration) officers are expected to exercise their discretion favourably toward the applicants," Aiken said.

Citizenship and Immigration Canada recently launched a three-month pilot project in Vancouver to streamline the processing of humanitarian applications.

"We're exploring whether to centralize the unit or not. We're looking at the best practices, trends and gaps to see how we can improve the process," said spokesperson Madona Mokbel.

H&C cases are often complex and people can file multiple applications, which cost $550 for each adult and $150 for minors.

"It's not black-and-white decision making and you have to consider all different circumstances. It takes a long time," said Mokbel.

The department did not disclose the number of backlogged applications, but said the process takes one to four years and the overall approval rate is over 50 per cent.

While some people believe the process is abused by "queue-jumpers," lawyers say the application is a crapshoot. There are no clear and objective guidelines to define the "unusual, undeserved or disproportionate hardship" that warrants a positive decision, they say.

The key to success is to prove one would suffer hardship if uprooted.

Toronto immigration lawyer Richard Wazana said immigration officers often look at the applicant's ties to Canada, such as employment history, community connection, civic participation and presence of family members, as well as the interests of the person's children.

"The majority of applicants are refused refugee claimants, who face removal from Canada and end up applying for permanent residency through H&C," Wazana said.

Queen's Aiken said it is a myth that the process is being abused by failed refugee claimants to delay removal and deportation because an H&C application doesn't stop border officials from booting the applicant out of the country. Also, giving birth to a Canadian-born child is only one of many factors and does not entitle a parent to remain in Canada on humanitarian grounds.

While the clause is often considered a catch-all to safeguard applicants who fall through the cracks of the regular immigration streams, some lawyers complain there is no appeal process and individual officers have too much discretion.

"The crux of the problem ... is (that) the H&C application is embedded in an exclusionary and racist immigration policy," said immigration lawyer Jared Will. "A person can immigrate to Canada only if the person can show that he or she is beneficial to Canada's economy."