You have been in Canada for years. You work, you pay taxes, your friends are here, and going back would mean starting over in a country that has moved on without you. That is the story behind most humanitarian and compassionate applications, and it is a story officers read every day. The applications that succeed are not the ones with the most sympathetic story. They are the ones where the story is proven, and where the two halves of it, establishment here and hardship there, are shown to be connected.
What establishment means to an officer
Establishment is shorthand for the degree to which your life is rooted in Canada. Officers look at length of residence, employment history, financial self-sufficiency, language ability, community involvement, volunteer work, family in Canada, and whether you have complied with the law while here.
The evidence has to do the work. Saying you are well established is an assertion; a T4 for each year, a letter from an employer describing your role and how long you have held it, a lease, bank records, and tax assessments are proof. Community ties are proven by letters from people who actually know you, written in their own words and explaining how they know you and what you do. Ten near-identical letters are worth less than three specific ones.
Two things reduce the weight of establishment, and applicants should know them in advance. The first is that time spent in Canada without status, or while an application was pending that the applicant knew was unlikely to succeed, is sometimes discounted on the basis that the establishment was built on a foundation the applicant knew was uncertain. The Federal Court has cautioned officers against going too far with this, since almost every H&C applicant is by definition without a regular route to stay, but the point still has to be addressed rather than hoped away. The second is that establishment which could be replicated elsewhere carries less weight. Employment that exists in the country of return, or savings that transfer, do not on their own show why leaving Canada would be a hardship.
Hardship is not the same as inconvenience
The Supreme Court in Kanthasamy made clear that hardship is not measured against a fixed threshold of unusual and undeserved, or disproportionate. Those phrases describe hardship; they are not tests to be passed. The officer is supposed to weigh all the relevant circumstances together and ask whether they would excite a reasonable person’s desire to relieve the applicant’s misfortune.
That said, the hardship has to be real and it has to be shown. Common categories include:
- Family separation. Where a spouse, partner, or parent in Canada cannot reasonably relocate, or where separation would cut a child off from a parent. The evidence is the relationship itself and the reasons relocation is not realistic.
- Health. Medical conditions for which treatment in the country of return is unavailable or inaccessible in practice. This requires a medical opinion on the condition and country evidence on the treatment, not a general statement that healthcare there is poor.
- Adverse country conditions. Discrimination, instability, or economic collapse that would affect the applicant personally. Officers cannot consider the risk factors that belong to a refugee claim, but they can and must consider hardship arising from conditions in the country, including discrimination that does not rise to persecution.
- Loss of what has been built. Years of work, a business, a professional licence, or an education that would be worthless on return.
Connecting the two halves
The most common structural weakness in H&C applications is that establishment and hardship are presented as separate lists. The officer reads five pages on how settled the applicant is, then five pages on how difficult the country of return is, and is left to draw the connection alone.
The stronger approach is to show why this particular establishment makes this particular return hard. A nurse who requalified in Ontario faces a specific loss if her licence has no equivalent at home. A parent whose child has been in a Canadian school for six years is not just established; the child’s education and the family’s stability are one and the same issue. A person who arrived at twenty and is now thirty-five has spent their whole adult life here and has no adult network to return to. Each of those is establishment and hardship at once, and the submissions should say so.
Documents that are often missing
From reviewing applications that were refused, the gaps tend to be the same:
- No evidence of the conditions in the country of return beyond a general news article. Officers expect objective sources: government and NGO reports, and where possible evidence specific to the applicant’s region and circumstances.
- Letters of support that praise the applicant without explaining the writer’s relationship or knowledge.
- No explanation of how the applicant came to be without status. Silence on this reads as evasion; a candid, factual account reads as honesty.
- No account of what return would actually look like: where the applicant would live, whether they have family there, whether they could work.
Before you file
An H&C application is built around a written submission that ties the evidence together, and it is worth being realistic at the outset about which parts of your situation carry weight and which do not. For the broader picture, see our overview of H&C applications and, if your refugee claim was refused, our post on the twelve-month bar. To discuss an application, or to have a refused one reviewed, book a consultation with Kabir & Alam Lawyers.