Does ‘compassionate grounds’ apply to cancer-stricken immigrant?

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Stringent standards and skyrocketing costs are making citizenship increasingly hard to get, but the ruthless efficiency of Canadian immigration officials might give some people pause as well.

Last month, we wrote about a paralyzed Filipino woman fighting her possible deportation order and now the Canada Border Services Agency has a seriously ill Mexican man in its crosshairs.

The National Post reported this week the CBSA issued a removal order for Stage-4 cancer patient Fernando Nuñes, potentially separating him from his Canadian wife and son, as well as cutting off access to his crucial medical treatments.

Nuñes said there are no facilities where he lives in Mexico that can provide the cancer treatments he currently receives in Surrey, B.C..

“My doctors say that if I don’t get … the right treatment, my time for living is shorter. They say one year or less,” he told the Post.

His wife planned to sponsor him, but immigration officials ordered him out since he’s in the country illegally, having overstayed a work visa.

If sponsorship doesn’t work out, he plans to appeal his deportation order on humanitarian and compassionate grounds — a last-ditch option available to people in exceptional circumstances.

Section 68 of the Immigration & Refugee Protection Act says immigration officials can stay a removal order if, “taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.”

Those “considerations” aren’t specified, and are judged on a case-by-case basis. Generally speaking, they fit into two categories: risk or hardship.

Risk means that returning to one’s home country exposes them to dangers like persecution or risk of cruel and unusual punishment. For example, a gay man could fight deportation to Uganda or Iran, where homosexuality is outlawed and punishable by harsh jail sentences or death.

Hardship means removal from Canada would cause serious problems or suffering. That certainly could include losing access to chemotherapy or other vital medical care. Cost or inconvenience doesn’t count as hardship (including the $550 cost of applying under those grounds).

An applicant can use a wide range of criteria to prove hardship. Immigration officials consider the following: 

  • How settled you are in Canada. That includes how long an applicant has lived here, employment history, efforts to learn English and French, taxes paid, community involvement, and assets (finances or property; the more in Canada and the fewer abroad, the better).
  • Family ties to Canada. Like assets, the number of Canadian-born kids is a plus, kids abroad less so. Similarly, the amount of family contact here or abroad, since an applicant returning to a strong family network abroad theoretically faces less hardship.
  • Best interests of children. A dependent child (under 19) in Canada is another important factor.
  • What happens to the applicant if their appeal is rejected.

A hardship applicant can still be deported, although a risk applicant can’t be until officials have completed a “pre-removal risk assessment” gauging the danger an immigrant would face if sent back to their home country.

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