The determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate (H&C) application in Canada will generally include an assessment of hardship. Hardship is an important consideration in determining whether sufficient humanitarian and compassionate considerations exist to justify granting an exemption for permanent resident status in Canada.

A decision maker usually considers the extent to which an applicant, given their particular circumstances, would face hardship if they had to leave Canada in order to apply for permanent residence abroad. Although there will inevitably be some hardship associated with being required to leave Canada, this alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds. Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61

An applicant for H&C consideration may face hardship in one part of the country of origin, but might reasonably be expected to seek relief at some other place within that country. In such a situation, it may be determined that undue hardship does not exist because the applicant could eliminate the hardship through relocation.

In the case of Lin v. Canada (Citizenship and Immigration), 2024 FC 185, the applicant filed an H&C application and requested a temporary resident permit [TRP]. In support of the H&C application, the applicant submitted an affidavit outlining his religious activity in Canada, as well as objective evidence concerning the ongoing persecution of members of house churches in China. 

The Applicant stated in the H&C affidavit that he would face hardship as a Christian upon return to China, noting he would not be able to practice his religion freely in China as Chinese officials continue to close Christian churches and restrict religious activity online and in-person. In the H&C submissions, counsel for the Applicant cited objective evidence concerning the persecution members of house churches continue to face in China.

The H&C application was denied, and the Officer did not consider the TRP request. On judicial review, the Federal Court found that the officer erred in the analysis of the hardship faced by the applicant as a Christian in China. 

The Court found that the officer failed to engage with the evidence provided by the applicant. After acknowledging that many Christians in China faced discrimination and harassment, the officer failed to consider whether such treatment would amount to hardship for the applicant. Rather, the officer required the applicant to demonstrate that he would personally be at risk, contrary to the Federal Court’s jurisprudence. The officer also failed to consider relevant country condition evidence on the treatment of Christians in China.

The application for judicial review was granted and the matter was sent back for a different officer to render a decision on the TRP request and to reconsider the H&C application.

According to the jurisprudence in Isesele v Canada (Immigration, Refugees and Citizenship), 2017 FC 222, an H&C applicant does not need to present direct evidence that they would face targeted risks. This can be inferred by the fact that an applicant is a member of a group that is being discriminated against.

In H&C applications, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established. If an applicant alleges they will suffer hardship if returned to their country of origin, the onus is on the applicant to provide documentary evidence and the decision-maker must take into account elements related to the hardships that affect the foreign national.