Kanthasamy v. Canada (Citizenship and Immigration)

Kanthasamy v. Canada (Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
2015-12-10
Neutral citation
2015 SCC 61
Report
[2015] 3 SCR 909
Case number
35990
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
Federal Court of Appeal
Subjects
Immigration
Notes
SCC Case Information: 35990
Decision Content
SUPREME COURT OF CANADA
Citation: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909
Date: 20151210
Docket: 35990
Between:
Jeyakannan Kanthasamy
Appellant
and
Minister of Citizenship and Immigration
Respondent
- and -
Canadian Council for Refugees, Justice for Children and Youth, Barbra Schlifer Commemorative Clinic, Canadian Centre for Victims of Torture, Canadian Association of Refugee Lawyers and Parkdale Community Legal Services
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons for Judgment:
(paras. 1 to 61)
Abella J. (McLachlin C.J. and Cromwell, Karakatsanis and Gascon JJ. concurring)
Dissenting Reasons:
(paras. 62 to 146)
Moldaver J. (Wagner J. concurring)
Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909
Jeyakannan Kanthasamy Appellant
v.
Minister of Citizenship and Immigration Respondent
and
Canadian Council for Refugees,
Justice for Children and Youth,
Barbra Schlifer Commemorative Clinic,
Canadian Centre for Victims of Torture,
Canadian Association of Refugee Lawyers and
Parkdale Community Legal Services Interveners
Indexed as: Kanthasamy v. Canada (Citizenship and Immigration)
2015 SCC 61
File No.: 35990.
2015: April 16; 2015: December 10.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the federal court of appeal
Immigration — Judicial review — Refugee claim — Humanitarian and compassionate considerations — Best interests of child — 17-year-old refugee claimant from Sri Lanka seeking humanitarian and compassionate exemption to apply for permanent residence from within Canada — Whether decision to deny relief was reasonable exercise of humanitarian and compassionate discretion — Proper role of Ministerial Guidelines used by immigration officers in determining whether humanitarian and compassionate considerations warrant relief — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25(1) .
K is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and questioning by the Sri Lankan army and police, K’s family arranged for him to travel to Canada to live with his uncle. He was 16 years old. When he arrived in Canada, he made a claim for refugee protection which was refused. K’s application for a pre‑removal risk assessment was also rejected. K additionally filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act seeking to apply for permanent resident status from within Canada. The Officer reviewing his application concluded that relief was not justified as she was not satisfied that a return to Sri Lanka would result in hardship that was unusual and undeserved or disproportionate. On judicial review, the Federal Court found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal agreed.
Held (Moldaver and Wagner JJ. dissenting): The appeal should be allowed. The Officer’s decision was unreasonable and should be set aside. The matter is remitted for reconsideration.
Per McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ: Section 25(1) of the Immigration and Refugee Protection Act gives the Minister discretion to exempt foreign nationals — individuals who are neither citizens nor permanent residents — from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. The purpose of s. 25(1) is to offer equitable relief. That purpose was furthered in Ministerial Guidelines intended to assist immigration officers in determining whether humanitarian and compassionate considerations warrant relief under s. 25(1) . They state that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application under s. 25(1) is done by an “assessment of hardship”. What warrants relief will vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them. An officer can take the underlying facts adduced in refugee determination proceedings into account in determining whether the applicant’s circumstances warrant humanitarian and compassionate relief.
The Guidelines state that applicants must demonstrate either “unusual and undeserved” or “disproportionate” hardship for relief under s. 25(1) to be granted. “Unusual and undeserved hardship” is defined in the Guidelines as hardship that is “not anticipated or addressed” by the Act or its regulations, and is “beyond the person’s control”. “Disproportionate hardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”.
While the Guidelines are useful, they are not legally binding and are not intended to be either exhaustive or restrictive. Officers should not fetter their discretion by treating them as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion anticipated by s. 25(1) . The words “unusual and undeserved or disproportionate hardship” should instead be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1) . As a result, officers should not look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds. This has the result of using the language of “unusual and undeserved or disproportionate hardship” in a way that limits the officer’s ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.
Section 25(1) also refers to the need to take into account the best interests of a child directly affected. Where, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective. The “best interests” principle is highly contextual because of the multitude of factors that may impinge on the child’s best interests. A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered.
It is difficult to see how a child can be more directly affected than when he or she is the applicant. The status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since children will rarely, if ever, be deserving of any hardship, the concept of unusual or undeserved hardship is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief.
In this case, the Officer failed to consider K’s circumstances as a whole and took an unduly narrow approach to the assessment of his circumstances. The Officer failed to give sufficiently serious consideration to K’s youth, his mental health, and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessing each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”. The Officer’s literal obedience to those words, which do not appear anywhere in s. 25(1) , rather than looking at K’s circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion, rendering her decision unreasonable.
The Officer accepted the diagnosis in the psychological report of post‑traumatic stress disorder, yet required K to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka. Once she accepted that he had post‑traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor. In her exclusive focus on whether treatment was available to K in Sri Lanka, the Officer ignored what the effect of removal from Canada would be on his mental health. The fact that K’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition. And while the Officer did not dispute the psychological report presented, she found that the medical opinion rested mainly on hearsay because the psychologist was not a witness to the events that led to the anxiety experienced by K. This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on hearsay. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. A psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.
The Officer considered the discrimination K would likely endure in Sri Lanka, but effectively concluded that in the absence of evidence from K that he would be personally targeted by discriminatory action, there was no evidence of discrimination. This approach however, failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s identity is relevant under s. 25(1) , whether or not the applicant has evidence that he or she has been personally targeted.
Further, the Officer here did not appear to turn her mind to how K’s status as a child affected the evaluation of the other evidence raised in his application. This approach is inconsistent with how hardship should be uniquely addressed for children. Moreover, by evaluating K’s best interests through the same literal approach she applied to each of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — the Officer misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that children cannot be said to be deserving of hardship.
The Officer therefore avoided the requisite analysis of whether, in light of the humanitarian purpose of s. 25(1) , the evidence as a whole justified relief. This approach unduly fettered her discretion and led to its unreasonable exercise.
Per Moldaver and Wagner JJ. (dissenting): While there is agreement with much of the majority’s discussion on the meaning of the phrase “justified by humanitarian and compassionate considerations”, there is no agreement with the test proposed for granting relief under s. 25(1) . The scheme of the Immigration and Refugee Protection Act and the intention of Parliament in enacting s. 25(1) suggest that this provision is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend. Parliament recognized that cases could arise in which the strict application of the rules would not reflect Canada’s policy goals, or would lead to an arbitrary or inhumane result. That said, Parliament did not intend to provide relief on a routine basis. The test for humanitarian and compassionate (“H&C”) relief must balance the dual characteristics of stringency and flexibility and reflect the broad range of factors that may be relevant.
The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. However, the test falls down on the flexibility side as it risks excluding or diminishing the weight that some factors may deserve in deciding whether H&C relief should be granted. Section 25(1) does not limit when the relevant H&C considerations must occur; nor does it require that they be viewed only from the applicant’s perspective. It asks only that decision makers look at H&C considerations relating to the applicant. Section 25(1) is framed in broad terms because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to enter or remain in Canada. A more comprehensive approach is therefore required.
Bearing in mind the purpose and context of s. 25(1) , and the fact that the hardship test used to date may, in some circumstances, be overly restrictive, the test for granting relief should be reframed as follows: whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair‑minded Canadians would find it simply unacceptable to deny the relief sought. To be “simply unacceptable”, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted. This test maintains the stringency of the hardship test — but does not exceed it. At the same time, it is more flexible than the hardship test. It asks decision makers to turn their minds to all of the relevant circumstances when deciding whether refusing relief would be “simply unacceptable”. This prevents decision makers from excluding relevant H&C considerations because they do not fit within the future‑oriented hardship framework or because they do not involve hardship experienced solely by the applicant. The test proposed by the majority does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test.
The Officer’s decision in this case falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, and was therefore reasonable. Decision making under s. 25(1) is highly discretionary and is entitled to deference. Care must be taken not to overly dissect or parse an officer’s reasons. Rather, reasonableness review entails respectful attention to the reasons offered or which could be offered in support of a decision. As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it would itself have come to a different result, lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review.
In evaluating the application, the decision maker must not segment the evidence and require that each piece either rise above the hardship threshold or be discounted entirely. Rather, the decision maker must fairly consider the totality of the circumstances and base the disposition on the evidence as a whole. Likewise, the decision maker must not fetter his or her discretion by applying the Guidelines — the “unusual and undeserved or disproportionate hardship” framework — as a strict legal test to the exclusion of all other factors. Taken as a whole, the Officer’s decision in this case denying K’s H&C application is transparent. She provided intelligible reasons for concluding that K did not meet his onus of establishing, on balance, that he should be permitted to apply for permanent residency from within Canada for H&C reasons. She did not use the hardship framework in a way that fettered her discretion or caused her to discount relevant evidence. Her conclusions are reasonable, and well‑supported by the record. While aspects of K’s situation warrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief.
It was open to the Officer to find that the record did not justify relief under s. 25(1) . While the Officer’s reasons could have engaged more fully with the psychological evidence and while it would have been helpful had she specifically addressed the issue of the impact of removal on K’s mental health, her failure to do so does not render her decision unreasonable. The Officer’s approach to the issue of discrimination was also not unreasonable, nor did it render her decision unreasonable. The applicant need only show that the denial of relief would pose a certain risk of harm. However, that risk must necessarily be a “personalized risk”, in the sense that the applicant must fall within the category of people who, on the evidence submitted, would face that risk. When viewed in context, the Officer’s conclusion that K had failed to provide sufficient evidence to support his statements that he will be personally discriminated against simply reiterated the wording of his submissions. Lastly, the Officer’s analysis and conclusion on K’s best interests as a child were also reasonable. It was highly relevant that K was only one day away from turning 18 when he initially applied for H&C relief. K was a teenager on the verge of adulthood. On the record before her, it was open to the Officer to conclude that removal to Sri Lanka would not impair K’s best interests, because he would be returning to his immediate family rather than being separated from them.
Although the Officer applied the hardship standard from the Guidelines, she did not do so in a way that fettered her discretion. Further, had she applied the test reframed, she would inevitably have come to the same result. The Officer’s decision to deny an exemption to K was reasonable.
Cases Cited
By Abella J.
Referred to: Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470; Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; United States of America v. Johnson (2002), 62 O.R. (3d) 327; Diarra v. Canada (Minister of Citizenship and Immigration), 2006 FC 1515; Love v. Canada (Minister of Citizenship and Immigration), 2004 FC 1569, 43 Imm. L.R. (3d) 111; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463; Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. 206; Flores v. Canada (Minister of Citizenship and Immigration), 2013 FC 1002; Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 233; Park v. Canada (Minister of Citizenship and Immigration), 2012 FC 528; Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Chen v. Canada (Minister of Citizenship and Immigration), 2003 FCT 447, 232 F.T.R. 118; Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555; Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 621; Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76; Gordon v. Goertz, [1996] 2 S.C.R. 27; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; MacGyver v. Richards (1995), 22 O.R. (3d) 481; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358; Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008 FC 165, 323 F.T.R. 181; Kim v. Canada (Citizenship and Immigration), 2010 FC 149, [2011] 2 F.C.R. 448; Hilewitz v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Davis v. Canada (Minister of Citizenship and Immigration), 2011 FC 97, 96 Imm. L.R. (3d) 267; Martinez v. Canada (Minister of Citizenship and Immigration), 2012 FC 1295, 14 Imm. L.R. (4th) 66; Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714; Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC 166.
By Moldaver J. (dissenting)
Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Pan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1303; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Paz v. Canada (Minister of Citizenship and Immigration), 2009 FC 412; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358, leave to appeal refused, [2002] 4 S.C.R. vi; Pannu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1356; Jacob v. Canada (Minister of Citizenship and Immigration), 2012 FC 1382, 423 F.T.R. 1; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458.
Statutes and Regulations Cited
Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4 .
Canadian Charter of Rights and Freedoms, s. 7 .
Immigration Act, R.S.C. 1952, c. 325, s. 8.
Immigration Act, R.S.C. 1985, c. I‑2, s. 114(2).
Immigration Act, 1976, S.C. 1976‑77, c. 52, s. 115(2).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 11(1) , 25(1) , (1.3) , 62 to 71 , 96 , 97 .
Immigration and Refugee Protection Regulations, SOR/2002‑227, s. 6.
Immigration Appeal Board Act, S.C. 1966‑67, c. 90, s. 15.
Treaties and Other International Instruments
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 3(1).
Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009.
Authors Cited
Brown, Donald J. M., and John M. Evans, with the assistance of Christine E. Deacon. Judicial Review of Administrative Action in Canada, vol. 3. Toronto: Carswell, 2014 (loose‑leaf updated May 2015, release 1).
Canada. Citizenship and Immigration Canada. “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds”, in Inland Processing (online: http://www.cic.gc.ca).
Canada. Employment and Immigration Canada. Immigration Manual. 1986.
Canada. House of Commons. House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, pp. 13267-68.
Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001, 9:55 to 10:00.
Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, 15:40.
Canada. Library of Parliament. Parliamentary Research Branch. “Bill C‑11: The Immigration and Refugee Protection Act ”, Legislative Summary LS‑397E, by Jay Sinha and Margaret Young, Law and Government Division, March 26, 2001, revised January 31, 2002.
Canada. Senate and House of Commons. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, p. 12.
Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart, 1997, 279.
Hawkins, Freda. Canada and Immigration: Public Policy and Public Concern. Montréal: McGill‑Queen’s University Press, 1972.
Jones, Martin, and Sasha Baglay. Refugee Law. Toronto: Irwin Law, 2007.
Liew, Jamie Chai Yun, and Donald Galloway. Immigration Law, 2nd ed. Toronto: Irwin Law, 2015.
Neufeld, Heather. “Inadequacies of the Humanitarian and Compassionate Procedure for Abused Immigrant Spouses” (2009), 22 J.L. & Soc. Pol’y 177.
APPEAL from a judgment of the Federal Court of Appeal (Blais C.J. and Sharlow and Stratas JJ.A.), 2014 FCA 113, [2015] 1 F.C.R. 335, 459 N.R. 367, 372 D.L.R. (4th) 539, 77 Admin. L.R. (5th) 181, 27 Imm. L.R. (4th) 1, [2014] F.C.J. No. 472 (QL), 2014 CarswellNat 1435 (WL Can.), affirming a decision of Kane J., 2013 FC 802, [2014] 3 F.C.R. 438, 437 F.T.R. 120, [2013] F.C.J. No. 848 (QL), 2013 CarswellNat 2568 (WL Can.), dismissing an application for judicial review. Appeal allowed, Moldaver and Wagner JJ. dissenting.
Barbara Jackman and Ksenija Trahan, for the appellant.
Marianne Zoric and Kathryn Hucal, for the respondent.
Jamie Liew, Jennifer Stone and Michael Bossin, for the intervener the Canadian Council for Refugees.
Emily Chan and Samira Ahmed, for the intervener Justice for Children and Youth.
Alyssa Manning, Laila Demirdache, Aviva Basman and Rathika Vasavithasan, for the interveners the Barbra Schlifer Commemorative Clinic and the Canadian Centre for Victims of Torture.
Audrey Macklin, Joo Eun Kim and Laura Brittain, for the intervener the Canadian Association of Refugee Lawyers.
Ronald Poulton and Toni Schweitzer, for the intervener Parkdale Community Legal Services.
The judgment of McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ. was delivered by
[1] Abella J. — The Immigration and Refugee Protection Act [1] consists of a number of moving parts intended to work together to ensure a fair and humane immigration system for Canada. One of those parts is refugee policy. Under s. 25(1) of the Act, the Minister has a discretion to exempt foreign nationals from the Act’s requirements if the exemption is justified by humanitarian and compassionate considerations, including the best interests of any child directly affected. The issue in this appeal is whether a decision to deny relief under s. 25(1) to a 17 -year-old applicant was a reasonable exercise of the humanitarian and compassionate discretion. In my respectful view, it was not.
Background
[2] Jeyakannan Kanthasamy is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and questioning by the army and the police, his family arranged for him to travel to Canada to live with his uncle. He was 16 years old.
[3] When he arrived in Canada, he made a claim for refugee protection under ss. 96 and 97 , which permit applicants to seek refugee status based on a “well-founded” fear of persecution. His claim was based on a fear that because he is a Tamil, the army, the Eelam People’s Democratic Party, the police, or others would arrest or harm him upon his return to Sri Lanka on suspicion that he supports the Liberation Tigers of Tamil Eelam. The Immigration and Refugee Board refused his claim in February 2011, concluding that the authorities in Sri Lanka had taken steps to improve the situation of Tamils, and that he did not have a profile that would put him at risk if he were returned to that country.
[4] In August 2011, he applied for a pre-removal risk assessment, which determines whether an applicant can safely be removed from Canada. The process assesses new risk developments arising after the refugee hearing, but is not a second refugee determination hearing: Martin Jones and Sasha Baglay, Refugee Law (2007), at p. 332. The Officer who decided his pre-removal risk assessment found that Jeyakannan Kanthasamy was credible and accepted the evidence that young Tamils faced discrimination and harassment in Sri Lanka. But she concluded that since this treatment did not rise to the level of persecution, his application should be rejected.
[5] Around the same time, he also filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act , seeking to apply for permanent resident status from within Canada. He was then 17 years old. The denial of relief would result in his removal from Canada.
[6] The Officer who reviewed the application concluded that the relief was not justified by humanitarian and compassionate considerations. Drawing on language set out in Guidelines prepared by the Minister, the Officer said she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate”.
[7] On judicial review, the Federal Court held that the test was whether the hardship was “unusual and undeserved or disproportionate” in accordance with the Guidelines, and found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal largely agreed with both the test and the result. While it concluded that s. 25(1) was not intended to duplicate refugee proceedings, the evidence from those proceedings can nonetheless be considered for the purpose of determining whether the applicant will face “unusual and undeserved, or disproportionate hardship” if returned to the foreign state.
[8] For the following reasons, I do not, with respect, agree with the conclusion that the Officer’s decision was reasonable.
Analysis
[9] The Immigration and Refugee Protection Act governs the admissibility, eligibility and removal of non-citizens. Under the Act and its accompanying regulations, foreign nationals — individuals who are neither citizens nor permanent residents — seeking permanent resident status must apply for and obtain a visa before entering Canada: Immigration and Refugee Protection Act, s. 11(1) ; Immigration and Refugee Protection Regulations, SOR/2002-227, s. 6. A permanent resident visa may be issued where the foreign national is not inadmissible and meets the requirements of the Act: Immigration and Refugee Protection Act, s. 11(1) .
[10] Section 25(1) of the Immigration and Refugee Protection Act gives the Minister discretion to exempt foreign nationals from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. At the relevant time, s. 25(1) stated:
25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
A brief history helps explain the purpose of humanitarian and compassionate relief under this provision.
[11] Under the 1952 Immigration Act, R.S.C. 1952, c. 325, the Minister had an almost unlimited discretion to allow individuals into Canada: Freda Hawkins, Canada and Immigration: Public Policy and Public Concern (1972), at pp. 101-3. Although humanitarian and compassionate considerations were not explicitly part of the legislative scheme at the time, the Minister retained the authority to issue permits to allow certain applicants to remain in Canada: Immigration Act (1952), s. 8. These permits “introduced an element of flexibility and humanitarianism into the administration of immigration law”: Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470, at p. 476.
[12] A discretion to grant relief on the basis of humanitarian and compassionate considerations became an express part of the legislative scheme in the Immigration Appeal Board Act, S.C. 1966-67, c. 90, which created a quasi-judicial, independent Immigration Appeal Board. Section 15(1) of the Immigration Appeal Board Act gave the new Board the power to stay or quash a deportation order based on “compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief”: s. 15(1)(b)(ii). The reason for this power was explained by John Munro, then Parliamentary Secretary for the Minister of Manpower and Immigration:
The law establishes general rules as to who may come to Canada and who may stay in Canada. The rules necessarily are general. They cannot precisely accommodate all the variety of individual circumstances. They must be capable of being tempered in their application, according to the merits of individual cases. There will sometimes be humanitarian or compassionate reasons for admitting people who, under the general rules, are inadmissible. [Emphasis added.]
(House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at p. 13267)
[13] The meaning of the phrase “humanitarian and compassionate considerations” was first discussed by the Immigration Appeal Board in the case of Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338. The first Chair of the Board, Janet Scott, held that humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act”: p. 350. This definition was inspired by the dictionary definition of the term “compassion”, which covers “sorrow or pity excited by the distress or misfortunes of another, sympathy”: Chirwa, at p. 350. The Board acknowledged that “this definition implies an element of subjectivity”, but said there also had to be objective evidence upon which special relief ought to be granted: Chirwa, at p. 350.
[14] The Chirwa test was crafted not only to ensure the availability of compassionate relief, but also to prevent its undue overbreadth. As the Board said:
It is clear that in enacting s. 15 (1) (b) (ii) Parliament intended to give this Court the power to mitigate the rigidity of the law in an appropriate case, but it is equally clear that Parliament did not intend s. 15 (1) (b) (ii) of the Immigration Appeal Board Act to be applied so widely as to destroy the essentially exclusionary nature of the Immigration Act and Regulations. [p. 350]
[15] In proceedings before the Special Joint Committee of the Senate and the House of Commons on Immigration Policy in 1975, Janet Scott elaborated on the importance of being able to guard against the unfairness of deportation in certain cases:
. . . it was recognized that deportation might fall with much more force on some persons . . . than on others, because of their particular circumstances, and the Board was therefore empowered to mitigate the rigidity of the law in an appropriate case. Section 15 is a humanitarian and equitable section, which gives the Board power to do what the legislator cannot do, that is, take account of particular cases. [Emphasis added.]
(Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, at p. 12)
[16] In 1977, Parliament passed comprehensive immigration reforms that introduced humanitarian and compassionate discretion into other areas of the immigration scheme: Immigration Act, 1976, S.C. 1976-77, c. 52. Notably, under s. 115(2), the Governor in Council was given broad authority to facilitate the admission of “any person” on the basis of humanitarian or compassionate considerations:
115. (2) The Governor in Council may by regulation exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Governor in Council is satisfied that the person should be exempted from such regulation or his admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarian considerations.
[17] The role of this discretion was explained by this Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817:
[The] words [humanitarian and compassionate considerations] and their meaning must be central in determining whether an individual [humanitarian and compassionate] decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court has found that it is necessary for the Minister to consider [a humanitarian and compassionate] request when an application is made . . . . Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations. [Emphasis deleted; citation omitted; para. 66.]
[18] More recently, in 2001, Parliament passed another set of comprehensive reforms by enacting the Immigration and Refugee Protection Act . The humanitarian and compassionate discretion previously found in s. 115(2) of the Immigration Act, 1976 was incorporated into the new s. 25(1) : United States of America v. Johnson (2002), 62 O.R. (3d) 327 (C.A.), at para. 47; Diarra v. Canada (Minister of Citizenship and Immigration), 2006 FC 1515, at para. 8 (CanLII); Love v. Canada (Minister of Citizenship and Immigration) (2004), 43 Imm. L.R. (3d) 111 (F.C.), at para. 15.
[19] The Legislative Summary of Bill C-11, t