A very high-profile soldier from the United States who was initially denied permanent residence in Canada has won his appeal against the decision, forcing officials to reconsider.

Jeremy Hinzman, the first United States Iraq War resister to seek refugee status in Canada, was told by the Federal Court of Appeal that the Canadian immigration official did not properly take his situation into consideration and acted in a “significantly flawed” and “unreasonable” manner.

Officials have been instructed to look at Hinzman’s application again, which requests being allowed to stay in Canada on humanitarian and compassionate grounds.

Hinzman’s situation is not unique, with hundreds of other American soldiers doing the same. The National Post also published a story a few days ago about another soldier, a patriotic, American citizen who had completed his term in the war who deserted because of his strong feelings that the war was illegal. In the United States, imprisonment often awaits war deserters.

These people are treated like any other refugees in Canada and have the option to request a hearing before the Immigration and Refugee Board. A new Bill created by Liberal MP Gerard Kennedy last year would allow objectors to war to seek refugee status in Canada legally, although it has not been determined if this would only apply to Americans or not. Critics worry that the bill would make Canada a haven for deserters of all kinds, from those with criminal backgrounds and from any country.

Meanwhile, soldiers being stop-lossed (extending a military person’s term of service against their will or involuntarily) will also be considered on a case-by-case basis like any other refugee appeal.

The soldier in the National Post story, Phil McDowell, wants the public to know that the concern with many of these soldiers is not all wars, but the war in Iraq. He is now one of 60,000 refugees in Canada waiting to appear before the Immigration and Refugee Board.

We had previously blogged about the Barlagne family, a family that immigrated from France almost 5 years ago after being told by immigration officials that they were exactly what Canada was “looking for”.

However, the family’s youngest daughter has cerebral palsy, something that is not contagious and non-progressive, but can limit mobility, speech and can cause seizures.

Quebec immigration officials denied the family’s application for permanent residence because of her condition. On Wednesday, the decision was upheld by a Federal Court.

The family has become well-established in Canada: the family’s daughters are already in school, Mrs. Barlagne teaches French to immigrants at no charge, and Mr. Barlagne is running a successful software company.

The reason for the possible deportation is the fear of the strain on social or health services because of the daughter’s condition, however the Barlagnes say they’re in a position to pay for some of her $5,000 annual treatment. They also say that she is drastically improving under the treatments offered in Canada.

Despite asking before applying for permanent residence that his daughter’s condition was going to be an issue, the family is facing deportation. They were told by a representative of the Canadian government that they’d be fine before they immigrated, as long as Mr. Barlagne had been running his business for a few years.

The Barlagnes’ next step is to ask to apply on humanitarian grounds, and they have appealed to Citizenship, Immigration and Multiculturalism Minister Jason Kenney. However, his office has stated that it’s not up to politicians to make those decisions.

Let’s hope the family’s Humanitarian application makes it–they certainly deserve it.

When it comes to Humanitarian and Compassionate Applications or H&C Applications as they are often called, it is important to update them on an ongoing basis. H&C cases can take over 2 years to process so there is ample opportunity to update them while they wait in the queue at a CIC office.

Humanitarian and Compassionate applications are, as we have discussed, applications for an exemption from the general immigrant visa requirement of applying for Canadian Permanent Residence from outside of Canada. For H&C applicants, if you can show undue hardship you would likely suffer in your home country should you leave Canada and that you have successfully established yourself in Canada, you may be eligible to make an application from within Canada under Humanitarian grounds.

For more information on H&C applications go here and here.

Once of the reasons that it is important to update your applications is that in the event your Humanitarian and Compassionate application is refused, and you wish to file an appeal, that is, file an application for Leave and Judicial Review, you have to adhere to the court’s strict rules of evidence.

For judicial reviews of H&C applications, documents that were not submitted and issues that were not discussed in submissions before the decision to refuse the application was made, cannot be raised at the Judicial Review stage.  In other words, no “new evidence” is allowed. Unlike an Appeal at the Immigration and Refugee Board, a Federal Court Judge does not have authority to consider “new evidence”.

Therefore it is essential that you update your Humanitarian and Compassionate Applications within a reasonable time frame (6 months to 1 year) after submission. At our office, we do this by proactively contacting our H&C clients to find out the following information since the original submission:

1. Did the client purchase any new property?

2. Better income and savings since the original application?

3. Establishment of a new business?

4. New relationships formed?

5. How have the children progressed in terms of schooling, friends, community etc?

6.Volunteer work?

7.Community integration?

8.Illness?

9. Financial support of family abroad?

When updating an application, it is important to make detailed submissions each time as this will have a great impact on the CIC officer’s assessment of the application when it comes time to decision making. And if there is a refusal, the Federal Court will be able to consider all the “updates” you have made as proper evidence.

Updating H&Cs is therefore a winning strategy.

Sadly, as reported by Matthew Coutts of the National Post,  Mr. Daniel Johnson’s bid for Canadian permanent residence on Humanitarian and Compassionate grounds was dashed when the Federal Court upheld the refusal of his application.

Johnson is former pro basketball player who fled the devastation of Hurricane Katrina for Toronto where he had two Canadian born children. He is a dual American/Israeli citizen and is a black Jew. He tried out for the Toronto Raptors, now coaches youth basketball for the disabled and disadvantage. And he came to Canada not only because of the loss of his home  and employment in Louisiana but also to care for his two children after his ex-wife gave up custody.

Sounds like a great case? I would think so. Unfortunately, not so in the eyes of Citizenship and Immigration and the Federal Court.

Humanitarian and Compassionate applications are typically filed by people who do not normally fall under one of the standard but restrictive immigration categories such as the Skilled Worker  or Family class. Humanitarian applicants are often undocumented de facto illegals living in Canada who want nothing more than to get their immigration papers and live a normal life. To qualify for permanent residence on humanitarian grounds, applicants have to show that they would suffer undue or unusal hardship in their home country should they be required to return  and that they can successfully establish themselves in Canada.

In Mr. Johnson’s case, his long history of volunteerism combined with the loss of livelihood as a victim of a natural disaster was just not enough for Canada immigration to approve his case.  Unfortunately, deserving cases like these are all too often refused. Humanitarian applications are highly discretionary and immigration officers are charged with the duty of assessing cases based on broad criteria. This makes the outcome of such cases very unpredictable with sometimes unfair results.

Mr. Johnson has obviously endured a great deal of hardship. There are so many strong elements to his case that I find it unconscionable that he faces removal from Canada. The humanitarian factors in his case are overwhelming: a victim of a natural disaster, Canadian born children, a stellar volunteer, a visible and religious minority. If Mr. Johnson is not deserving of an approval, then who is? Indeed what does it take?

On Christmas Eve of last year, several Toronto-area families were torn apart when four men died and one was critically injured after the scaffolding they were working on collapsed, the worst construction accident in the city in five decades.

Now, the North York family of one man, Vladimir Korostin, faces deportation from Canada while they continue to try to come to terms with the loss of a father. Korostin and his wife, Irina Cherniakova, obtained a divorce while living in Canada but remained amicable in raising their two daughters, seven-year-old Daniela and 14-year old Inna.

Korostin’s family came to Canada as refugees, being uncomfortable as Orthodox Christians in a mainly Jewish country and in an attempt to avoid having their daughters forced into the Israeli army after high school, which is mandatory by law. Canada seemed like the ideal country for the family, who according to Cherniakova were told by friends that, “If you’re Muslim, Christian or Jewish, you can find your place in Canada,” and that, “you will be respected for who you are as a human being.”

The family has a hearing in February 2010, at which Cherniakova can try to convince the Immigration and Refugee Board (IRB) that they will either face torture, cruel and unusual punishment or a risk to their lives if they are deported. If they do not win the hearing, the family will have to leave their home of three years as well as their father and ex-husband’s grave. They can also make a humanitarian and compassionate application to stay as a last resort.

The chances of Israeli refugee claims being accepted in Canada are quite low, and only five and six per cent have been successful in the last two years.  It would be a double tragedy for this family should they be removed from Canada. But Israel, unlike many of its surrounding neighbor countries, is democratic and is not a generally considered to be refugee producing country. Therefore the family’s best bet would their humanitarian and compassionate application for Canadian permanent residence. Given the recent accident, I think they have a good case for success.