worried and stuck
- Thread starter soon2bcanadian8
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H&C won’t consider refugee claimant evidence as part of the process. The fact of the matter is you have been denied your refugee claim and the appeal. H&C is a completely different process and using the same grounds (or additional grounds for the same thing) won’t work. If CBSA has determined you are removal ready (and it sounds like they have) and you don’t comply with their request, they will take steps to remove you. Your H&C application will continue to processed if you leave or removed.
Here is the PRRA eligibility requirement, and perhaps you are subject to the one-year bar because of the final and negative conclusion of your refugee claim, but you have counsel so she should explain why PRRA has not been triggered by the CBSA.
https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/claim-protection-inside-canada/after-apply-next-steps/refusal-options/pre-removal-risk-assessment.html
H&Cs - H&Cs consider hardships not rising to the level of persecution, so what this means is that they do look at evidence related to the refugee claim but through a different lens and with a different (higher) threshold of decision making. Nevertheless, H&Cs do not provide a Stay of removal so while it will be decided at some point, you may no longer be in Canada when the decision is made.
The CBSA Officers do not have (or want) much discretion when considering whether someone is removal-ready or not - they want to see that the statutory Stays (refugee claim, appeals and/or Federal Court proceedings) are concluded; the probability of getting a valid travel document; and whether or not you are likely to appear for the removal (should they arrest and detain you). PRRA eligibility is their responsibility for any initial PRRA application, and it seems that you do not currently qualify. Any troubles in your homeland is beyond their authority and is a part of other processes in other departments.
The sad fact may be that you have hit the end of the legal process, and that your removal from Canada is imminent. In my own experience, coming up with a travel plan so far down the road could lead a more senior CBSA Officer to decide that you're just not planning to go. Maybe it will work for you but do keep in mind that if they don't think that you are acting in good faith, they may well book the flight for you according to their timetable. Would you be ready to leave in a week?
You can seek a Stay of removal from the Federal Court of Canada where you would need to establish that you would face irreparable harm if removed from Canada and maybe you have evidence of that, but your lawyer is your guide and online advice cannot be relied upon.
https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/claim-protection-inside-canada/after-apply-next-steps/refusal-options/pre-removal-risk-assessment.html
H&Cs - H&Cs consider hardships not rising to the level of persecution, so what this means is that they do look at evidence related to the refugee claim but through a different lens and with a different (higher) threshold of decision making. Nevertheless, H&Cs do not provide a Stay of removal so while it will be decided at some point, you may no longer be in Canada when the decision is made.
The CBSA Officers do not have (or want) much discretion when considering whether someone is removal-ready or not - they want to see that the statutory Stays (refugee claim, appeals and/or Federal Court proceedings) are concluded; the probability of getting a valid travel document; and whether or not you are likely to appear for the removal (should they arrest and detain you). PRRA eligibility is their responsibility for any initial PRRA application, and it seems that you do not currently qualify. Any troubles in your homeland is beyond their authority and is a part of other processes in other departments.
The sad fact may be that you have hit the end of the legal process, and that your removal from Canada is imminent. In my own experience, coming up with a travel plan so far down the road could lead a more senior CBSA Officer to decide that you're just not planning to go. Maybe it will work for you but do keep in mind that if they don't think that you are acting in good faith, they may well book the flight for you according to their timetable. Would you be ready to leave in a week?
You can seek a Stay of removal from the Federal Court of Canada where you would need to establish that you would face irreparable harm if removed from Canada and maybe you have evidence of that, but your lawyer is your guide and online advice cannot be relied upon.
hey Buletruck, the new evidence is for PRRA , Pre Removal Risk Assessment, however we hadnt been heard on that because the officer says she cannot do anything or allow anything from us until she has my reservation to leave then she can look at the other options like PRRA,my meeting was only yesterday , my H&C wasnt on the basis of refugee claim, when i applied with the lawyer i had best interest of the child and parents back home, i am the sole breadwinner for them, my mother is unemployed and sickly( been out of a job since 2010) when her mother passed on , she has never recovered , depression and mental illness. my running from the country was solely financed by loan sharks, im still paying those loans to date , i have copies of money transfer, my parents house on foreclosure etc . my sister had her baby young and i have been looking after her by nyslef. those were my reasons, im equally established in canada, have a fulltime job , volunteer, donated , paid taxes i have letters from work, landlord friends etc ...
bornlucky i hear you
my refugee claim was refused in may 2017, so technically i have more than 12months since it was rejected. my Lawyer said something like that however the officer, kept saying i'm a junior officer i dont know much about that, that would need a senior officer i'm only here to deliver the bad news. she kept saying" like i said" i cant do anything until i have the reservation here with me, having that reservation means a date has been set,right now we r just talking ,the officer had refused my lawyer to get in in the initial meeting. my lawyer arrived 10minutes late for the meeting because of parking, we had started the proceedings , providing the officer my information, when one of the workers walked in and said her lawyer is here, the officer said thats fine im not yet done. the worker insisted, her lawyer is here...and she ignored her. when she went on to talk to me and requested i sign a document for the meeting and next visit i asked for the presence of my lawyer , thats when she granted my lawyer access, my lawyer got the documents and was trying to go through them with me and the officer interrupted, i already went through the process with her , i have read situations where , officers wrote to H&C to have a speedy process, some people have told of stories where their officers gave them extra time to wait for the h&C because they were nice, i fear i landed on a very tough one. my lawyer says we might have to go to the minister as well ....
my refugee claim was refused in may 2017, so technically i have more than 12months since it was rejected. my Lawyer said something like that however the officer, kept saying i'm a junior officer i dont know much about that, that would need a senior officer i'm only here to deliver the bad news. she kept saying" like i said" i cant do anything until i have the reservation here with me, having that reservation means a date has been set,right now we r just talking ,the officer had refused my lawyer to get in in the initial meeting. my lawyer arrived 10minutes late for the meeting because of parking, we had started the proceedings , providing the officer my information, when one of the workers walked in and said her lawyer is here, the officer said thats fine im not yet done. the worker insisted, her lawyer is here...and she ignored her. when she went on to talk to me and requested i sign a document for the meeting and next visit i asked for the presence of my lawyer , thats when she granted my lawyer access, my lawyer got the documents and was trying to go through them with me and the officer interrupted, i already went through the process with her , i have read situations where , officers wrote to H&C to have a speedy process, some people have told of stories where their officers gave them extra time to wait for the h&C because they were nice, i fear i landed on a very tough one. my lawyer says we might have to go to the minister as well ....
My sister had her daughter when she was a teenager , I took full responsibility of the child from birth while my sister went back to school, the only thing is I never adopted but the child has been my sole responsibility . It’s indicated in my H&C . I have receipts for food, clothing , medical ,school tuition etc for this little girl all from me . She’s 5 now. My parents have always been under my care as well , that was basically an addition to my H&C but child was best interest . I left my country not because of poverty but because my life was at risk . I was arrested twice back at home for peaceful demonstrations after the presidential election was rigged . My friend was killed under the hands of the police. I do not know where others are today. I run to a remote island to hide before I narrowly escaped to Canada . By borrowing money from loan sharks I was able to bribe my way out of the country . I was very lucky . I will not be lucky again . My sister that follows me was attacked by a man that had be sent to finish me . They mistook her for me . As I mentioned in my earlier post she had surgery . Now she is in hiding . Last year a man came asking for me at my parents house . These people harass my parents all the time , it’s a shame I still send money to my parents that’s used to bribe these agents and stop any harm towards them . I’m away safe in Canada but yet they are still giving me sleepless nights. My H&C is solid like my lawyer says but we need PRRA to buy us more time so that I can remain in Canada until I get approved for AIP . As we know H&C takes almost 20months before you get anything from them . I hope this makes sense to you .
The fact that you provide financial support for your parents, sister and niece are not H&C reason. Your niece is not your child and even if you adopted the child it would be viewed as an adoption of convenience. Just saying that you don’t have any arguments based on the best interest the child. Can’t comment on the rest of your case.
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I appealed that decision 15days after rejection which was in April 2017 if I’m not mistaken . We didn’t hear anything from them until April 2019 . My lawyer says it’s the first decision that they consider the twelve months after . However she thought the same for H&C but she was wrong , my first application for H&C was sent out in April 2018 approximately 12months after IRB negative decision but they sent it back two days laters saying we had to wait for RAD so basically a whole year went away just like that with my app sitting on my lawyers desk . It’s in April that we received the negative RAD decision and then sent the h$c immediately . It’s painful to know that the laws haven’t favoured me even when I struggled to do the right thing . It is unbelievable that they wouldn’t consider that it’s these same laws that put an individual in this right situation . Two years wasted , I basically couldn’t do anything legally and yet here they are coming for me and I have done nothing but follow the law
Here are the guiding principles and case law for "Best Interests of the Child" (BIOC) as it is supposed to guide decision-makers
http://www.cba.org/Publications-Resources/Practice-Tools/Child-Rights-Toolkit/theChild/Best-Interests-of-the-Child
The UN Convention on the Rights of the Child (CRC) is what motivates Canada, as a signatory, to make BIOC considerations - you can find links to the CRC within the previous link. .
Re: H&C decision-making and BIOC, read for yourself that,
"a decision on a humanitarian and compassionate (H&C) application must include an assessment of the best interests of any child directly affected by the decision. “Any child directly affected” in this context means a Canadian or foreign-born child (and could include children outside Canada)."
You can find that quote at the very onset of the IRCC Departmental Guide for BIOC in H&C decision making - you don't have to adopt or be the biological father for it to be considered, but let's face it, your situation is highly unorthodox.
https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/humanitarian-compassionate-consideration/processing/assessment-best-interests-child.html
H&Cs have other factors to be considered but once again, rely upon your counsel for expertise in what is a complex field of discretionary decision-making. These aren't work permit applications.
Thanks for the information. OP was able to provide to basics for the child before arriving in Canada and the mother is in her 20s now and can also try and find employment. Unfortunately poverty is not an H&C reasons or most would have been able to win H&C cases. Many who arrive in Canada send remittances home.
This case is very complex and is at a critical phase so agree that OP needs to stick with her lawyers advice.