Humanitarian and Compassionate: Administrative law principles to guide H&C decision-making

Before processing an H&C application, review the administrative law principles that are summarized below. The summary explanations are only overviews of each principle and do not constitute an exhaustive presentation of legal principles applicable to the H&C assessment.

List of administrative law principles

1. Delegated authority

As holders of decision-making authority delegated from the Minister, decision makers cannot exceed the scope of the delegation granted. Refer to IL3 and Legal references for details on authority to grant exemptions on H&C grounds.

2. Duty to consider

You are obliged to consider formal applications for an exemption under A25(1) on H&C grounds on behalf of the Minister when the applicant has satisfied the requirements of R10 and R66.

3. Onus on applicant

You do not have to elicit information on H&C factors and are not required to satisfy applicants that such grounds do not exist. The onus is on applicants to put forth any H&C factors that they believe exist in their case.

4. All the evidence

You should consider and weigh all the relevant evidence and information, including what the applicant and you consider important. Do not put too much emphasis on one factor to the exclusion of all other factors. You must look at the whole picture. Any information or evidence that is not relevant or should not be given much weight should be documented appropriately.

5. The right to be “heard”

One of the fundamental components of natural justice or fairness is the right to be heard. This means that applicants must have a fair opportunity to present their case. In the case of an H&C application the applicant will normally provide written submissions.

The right to be heard does not require an absolute right to an interview or hearing and, if an interview is held, there is no legal right for the applicant’s representative to attend the H&C interview. However, when available, representatives are welcome to attend on the date set for the interview. The presence of a representative should not impede the interview process.

If the applicant is given a period of time within which to provide information or make further submissions, officers should not make a decision on the application until after this time period has elapsed.

6. The “case to be met”

There is no particular “case to be met.” Applicants determine what they believe are the H&C factors for their particular circumstances and make submissions to support the application. You may have information or evidence from a source other than the applicant (i.e. extrinsic information). If the information will be used when making the Stage 1 or Stage 2 assessment, you must share the information with the applicant and allow submissions to be made on this information.

When the source of the information is confidential, you must share the gist of the information with the applicant so that they are aware of the case to be met. It is not necessary to release the identity of a confidential source. When the extrinsic information on file is not relevant to the decision, make a note in the file to this effect.

7. Bias: The right to a fair and impartial decision

In addition to the “right to be heard”, the second major component of natural justice or fairness is the right to have a fair and impartial decision-maker. In other words, you should approach the case with an open mind and be free to come to a decision in light of all the facts known and the submissions made. Decision-making must be carried out in an impartial and objective manner.

Failure to approach the case with an open mind could be a result of either:

• too much reliance on the factors set out in the H&C guidelines, to the exclusion of any other submissions made by the applicant
• “pre-judgement” by the decision-maker. Each case must be determined on its own merits.

You may consult with colleagues and supervisors about a case but the final decision must be that of the officer responsible for the case.

8. Right to a decision

Decisions must be made within a reasonable time period and applicants must be informed of the decision in writing.

9. Right to reasons

The rationale for an H&C assessment must be recorded and noted in the file. In addition, the reasons for refusal must be made available to the applicant upon request.