Kanthasamy v Canada (Citizenship and Immigration): Is Reasonableness the Correct Standard?
The Supreme Court has recently given leave to appeal the decision in Kanthasamy v the Minister of Citizenship and Immigration, 2014 FCA 113. In that case Mr. Kanthasamy had appealed the Federal Court’s dismissal of his application for judicial review on the Minister’s denial of his application for humanitarian and compassionate relief as provided for under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27.
The Federal Court of Appeal heard the Kanthasamy appeal together with Lemus et al v Canada (Minister of Citizenship and Immigration), 2014 FCA 114. At issue in both cases was the interpretation of subsection 25(1) of the Act given the recent amendment created by the Balanced Refugee Reform Act, SC 2010, c 8, s 4. Writing for the Court, Stratas JA dismissed Kanthasamy’s appeal, finding that the Federal Court did not err in choice of standard of review, and that the standard of review was substantially correct.
At the age of 17, Mr. Kanthasamy, a Tamil from Sri Lanka, arrived in Canada as a refugee under sections 96 and 97 of the Act. The provisions of the Act note that a Convention refugee is a person who, by fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside of their country of nationality and is unable to return to that country. The provisions further specify that a person is in need of protection if—by removal to their country of nationality—their life would be at risk or be subject to cruel and unusual treatment or punishment.
The persecution faced by Tamils in Sri Lanka has been widely recognized. Indeed, in 2009, Tamil Canadians living in Toronto brought the situation to the attention of many by blocking the Gardiner Expressway—a major highway that goes through downtown Toronto—in protest of a deadly attack on the minority Tamils in Sri Lanka by the Sinhalese majority. This attack was officially said to have ended the 25-year civil war in Sri Lanka, by crushing the last Tamil Tiger-controlled area. However, there are reports that tension and “recriminations” continue to exist between both sides in the war.
The United Nations (UN) is now undertaking an investigation into the “alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka.” The UN has indicated that they will be investigating a time period that goes up to the date of 2011, however, they would also consider events that provide a context for this time period.
Yet, despite all the evidence of existing problems and ongoing tensions in Sri Lanka, Mr. Kanthasamy’s claim was denied because “the Sri Lankan authorities had taken measures to improve the situation of Tamils, and that Mr. Kanthasamy would not be at risk upon his return to Sri Lanka” (para 8).
In making their decision, the FCA noted that before entering Canada, a person that is not a Canadian citizen or permanent resident must apply for a visa from their home country if it is required from the Canadian government under the regulations. However, those who flee from their home countries and claim refugee status in Canada are unable to take such actions given safety concerns, so the Act provides for this exception under the previously noted provision of subsection 25(1).
This section allows for an exemption from the requirement to obtain a visa while outside of Canada, if the Minister is satisfied that the exemption is supported by humanitarian and compassionate considerations concerning the person affected. This section of the Act—although available on request of the person claiming refugee status—seems to support a subjective look at an individual’s circumstances, as it provides that “the Minister must… 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…”
The limits of the subjective consideration was noted by the Stratas JA as being that given the recent amendments, the Minister “may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national.” As such, these amendments appear to limit the legal determination by the Minister of such issues.
Nevertheless, the Federal Court undertook to review the decision of the officer on the basis of reasonableness—finding the decision to be reasonable. The reasoning was based on an interpretation of section 25(1.3) as requiring the officer to consider all hardships that the applicant will experience.
In making the determination the Federal Court found that section 25(1.3) created uncertainty around what could be contemplated in determining whether an application should be assessed on humanitarian and compassionate grounds. As such, the question as to the form of the risk (if there is one), is to be determined in consideration of humanitarian and compassionate concerns under section 25 of the IRPA, as changed under the Balanced Refugee Reform Act.
Jurisdictional Issues and the Standard of Review
At the Federal Court of Appeal the minister submitted that the question was not dispositive of the appeal, as it presumed that the officer failed to address allegations and evidence under subsection 25(1.3). The Court noted that for the Federal Court to certify a question, there needs to be a question that “transcends the interests of the parties.” In applying this standard to the question, the court determined that the question “remained a live issue” to be determined.
The Court was not persuaded by Mr. Kanthasamy’s arguments contesting the application of section 25 and moved on to consider the standard of review. In dismissing Kanthasamy’s arguments under section 25, the court determined that the provision is exceptional, in that an application under the section “is not explicitly envisioned by the Act.”
It was also noted that the Federal Court had specified that to meet the requirements of section 25(1), the applicant must show that they will suffer “unusual and underserved, or disproportionate hardship arising from the application.” Further, this hardship must rise to a level above the normal consequences of leaving Canada and applying to immigrate from outside the country. These guidelines were set out in the processing manual; a document the Court noted promoted “consistency in decision making” (para 52).
In terms of the standard of review, the Court cited the decision of the Supreme Court in Agraira v Canada (Public Safety and Emergency Preparedness),  2 SCR 559, as analogous to the case at issue. The Court noted the significance of Agraira in the approach to immigration issues, in that where issues of factual significance arise, they should be reviewed on a deferential reasonableness standard.
As such, the Court determined that immigration issues fall under the factual category, and thus deserve deference in their reconsideration by courts. The Federal Court of Appeal determined that the lower court had properly selected the standard of review and the decision to refuse permission to Kanthasamy was found to be reasonable.
In light of the decision in Febles v Canada (Citizenship and Immigration), 2014 SCC 68 (commentary is available here), it seems likely that this appeal to the Supreme Court will result in a continued deference to the tribunal and lower court decisions. However, the Court may also take the opportunity with Kanthasamy to clarify the preferred approach to judicial review. If the Supreme Court shows deference it will certainly result in negative consequences in Kanthasamy, given deference to findings of facts such that would be at issue in an analysis of the dangers faced by Mr. Kanthasamy upon deportation to Sri Lanka. It will be interesting to see if the Supreme Court will turn to international sources for guidance and just which standard of review will be applied after the appeal is heard.