This article is authored by Maxwell Musgrove, Lawyer at Chaudhary Law Office
National Document Packages (NDPs) are collections of documents, assembled by the Immigration and Refugee Board, which contain a baseline of relevant information on over 170 countries and territories. In 2022 the Federal Court of Canada confirmed that NDP items are extrinsic evidence in Humanitarian and Compassionate (H&C) applications, and H&C decision makers are not required to review them in most cases (Osagie v Canada, 2022 FC 1485, para 41; Ighodalo v Canada, 2022 FC 1079, para 14; and Su v Canada, 2022 FC 366, para 33). The Federal Court made similar rulings in 2015 and 2021, but 2022 is the year this issue was most frequently argued, and most directly answered. So, what are the relevant aspects of NPDs, how are they used, and why do lawyers keep making the argument that they should not be considered extrinsic evidence in H&C applications? It is that third question where I will be putting forward my own opinion.
The NDPs contain the Immigration and Refugee Board’s information on conditions in various countries. They are publicly available on the IRB’s website. The documents often include security or safety reports by other countries or the UN, articles, and reports by NGOs like Amnesty International and Human Rights Watch, and Responses to Information Requests based on research conducted by the IRB itself. These items are generally considered to be reliable, though are not infallible.
The information in the NDPs is used by and relevant to certain decision makers at the IRB, IRCC, and CBSA. They are used by the refugee decision makers at the IRB, and officers who handle Pre-Removal Risk Assessments (PRRAs). To varying degrees these decision makers have an obligation to consult NDPs. This requirement is to ensure that individuals who make critical decisions affecting people’s safety and security have access to some basic knowledge about the country these people are fleeing. As Justice Mainville noted:
It would indeed be unconscionable if Canadian visa officers were making a refugee claim determination without any reference to or knowledge of country conditions.
But what does this have to do with H&C applications? H&C refers to a broad range of submissions, for both temporary and permanent resident applications. Generally, H&C submissions mean an applicant has requested some exemption from the normal operation of immigration rules. This can include requesting permanent residence based solely on humanitarian and compassionate considerations, such as some combination of a level of establishment in Canada, significant hardship in their country of nationality that does not fall under the scope of refugee protection, or the best interests of an affected child. These are the types of H&C applications with which this article concerns itself.
The H&C provisions are meant to allow for some equitable relief in appropriate circumstances not contemplated by the IRPA, and not to duplicate refugee proceedings. However, there is sometimes overlap between “risk” alleged in refugee claims, and “hardship” assessed in H&C applications. H&C applications are often supported by country condition documents and submissions with respect to circumstances which applicants will face in their “home” country, and assessing this may require some knowledge of the country the applicant alleges they would face hardship in.
That is the first reason, I argue, that NDPs should be considered in H&C applications. The NDPs are relevant to H&C applications, just as they are with respect to refugee claims, in providing baseline information with respect to the relevant country conditions. As the IRB prepares this resource, it is regarded as relevant and reliable in other immigration settings, so it may as well be used where it can be.
There are instances where an H&C application does not overlap with a refugee claim but is of no lower stake. Take for example a person whose alleged hardship stems from the fact that a medical treatment, available and not unduly expensive in Canada, is simply not available in the person’s country of origin, whether for lack of trained medical practitioners, restrictions around controlled substances, or global shortages of medication of which Canada is fortunate enough to be supplied. Medical inadequacies are not a valid basis for a refugee claim. But for this person, their H&C application may as well be a refugee claim, because their life is at stake.
One issue which is often argued after an H&C application has been refused is that the applicant is responsible for putting their best foot forward, so should have provided all relevant country condition documents. However, I believe it is impractical and inefficient to expect officers to have absolutely no knowledge of country conditions. There are some facts which decision makers confronted with these issues daily should be expected to know. These facts should form a baseline in all cases – which of course is why the NDPs exist in the first place. Facts like the Taliban takeover of Afghanistan, family planning policies in China, or the risks of public protest in Iran. For a person from these countries applying without the help of a representative, it may not be apparent that they need to explain things that to them are so rooted in their experience that they go without saying.
For applications to be received, processed, and refused because a Canadian immigration officer did not posses a level of basic knowledge about the relevant country and did not take advantage of the information conveniently available in the NDP is wasteful, and may result in serious and unjustified hardships on applicants. Those applicants will likely re-apply with the additional documents bundled with their application. Would it not be better for the application to only be assessed once?
Finally, requiring officers to have some duty to review NDPs will promote consistency. When an applicant makes an H&C application around the same time that they submit a PRRA, and the same officer considers both, then the evidence tendered for each much be considered in rendering both decisions. While assessing the PRRA, the officer does have a duty to consider the NDP. This means that applicants who submit both types of applications and happen to have both considered by the same officer, already benefit from the NDPs. Why should this be left to luck and circumstance?
Some may take issue with the suggested use of NDPs in Humanitarian & Compassionate applications advocated here, and this brief article certainly does not address every issue. For example, there are still questions as to exactly when the NDPs must be considered, and how thoroughly, and whether decisions will require express references to relevant NDP documents. These issues are not fully settled in the refugee and PRRA context either. But I do hope that 2023 will not be the end of this debate, as it seems to me that the NDPs can play some role in H&C determinations.