The Expansion of “Humanitarian and Compassionate Grounds”: Kanthasamy v Canada
The recent Supreme Court of Canada (“SCC”) decision in Jeyakannan Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] is an exciting and welcome development in immigration and refugee law as it broadens the scope and definition of humanitarian and compassionate grounds under the Immigration and Refugee Protection Act, SC 2001, c 27, s. 25(1) [Act]. Not only did the Court note that humanitarian and compassionate considerations should include the best interests of a child directly affected—in this case Mr. Kanthasamy himself—but should also provide equitable relief.
At issue in Kanthasamy was whether the decision to deny relief to a 17-year-old refugee applicant was a reasonable exercise of humanitarian and compassionate discretion. At further issue was the proper role of Ministerial Guidelines used by immigration officers in determining whether humanitarian and compassionate considerations warrant relief under the Act.
Facts and Background
Mr. Kanthasamy, a Tamil from Sri Lanka, applied for refugee protection under ss. 96 and 97 the Act; provisions concerning a well-founded fear of persecution in one’s home country. Mr. Kanthasamy was fearful that he would be arrested upon return to Sri Lanka and suspected of supporting the Liberation Tigers of Tamil Eelam. There was evidence that he had been previously detained and subjected to state persecution in Sri Lanka.
The persecution faced by Tamils in Sri Lanka by the Sinhalese majority is well documented, with reports that tension and “recriminations” continue to exist. However, the Canadian government and courts have previously taken a narrow approach to this issue, towing the Sri Lankan government’s official stance that the situation has improved for Tamils in that country.
As a result, Mr. Kanthasamy’s application for humanitarian and compassionate relief under s. 25(1) of the Act was denied. He had also attempted to apply for permanent residence from inside Canada. The provision of the Act in question states:
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.
This provision gives the Minister the discretion to exempt individuals who are not Canadian citizens or permanent residents from the ordinary requirements of the Act under humanitarian and compassionate grounds, including when it would be in the best interest of a child affected, in this case, the 17-year-old applicant.
The Officer who reviewed the application concluded that humanitarian and compassionate considerations were not present to justify granting relief. Using the guidelines prepared by the Minister, the Officer noted that she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate” (at para 6).
The Immigration and Refugee Board further denied Mr. Kanthasamy’s claim and concluded that the government of Sri Lanka had tried to improve the situation of Tamils, such that Mr. Kanthasamy would not be at risk if he were to be deported.
Upon judicial review, the Federal Court upheld the decision of the Officer in specifying that the test was indeed whether the hardship was “unusual and deserved or disproportionate” and that Mr. Kanthasamy had not satisfied that test. The Federal Court also found the Officer’s decision to deny relief was reasonable. This decision was upheld at the Federal Court of Appeal (for a commentary on this case, see here).
The decision of the Officer was overturned at the SCC level and remitted back for reconsideration. A number of organizations intervened in the case, including one of Osgoode Hall’s legal clinics—Parkdale Community Legal Services.
The role that the interveners played in presenting a better picture of the reality of the situation in Sri Lanka and the hardships that refugees face must be appreciated, as the SCC displayed a willingness to expand the scope for protections offered in immigration law. Furthermore, the recognition of the ongoing persecution that Tamils face in Sri Lanka is in contrast to the approach of the lower courts in declaring the situation in Sri Lanka was safe for Tamils. The judgments of the lower courts were extremely problematic for this reason, as they did not recognize the subjective experience actually faced by Tamils. The decision of the SCC majority is therefore welcome as it provides a more realistic assessment of discrimination faced by Tamils.
Justice Abella, writing for the majority, detailed the history of ministerial discretion under the Act, beginning with the 1952 ministerial authority to issue permits to allow individuals to stay in Canada on the basis of “flexible” considerations.
Ministerial discretion was later refined in 1966 with the creation of the Immigration Appeal Board and the emergence of humanitarian and compassionate considerations as an express aspect of the legislative scheme (at para 12).
The majority noted that Humanitarian and compassionate considerations were first judicially considered in Chirwa v Canada (Minister of Citizenship and Immigration), (1970), 4 IAC 338, and more recently described in terms of ministerial discretion in Baker v Canada (Minister of Citizenship and Immigration),  2 SCR 817.
The Guidelines note that applicants must demonstrate either “unusual and undeserved” or “disproportionate” hardship for relief under s. 25(1) to be granted (para 7). These terms are defined as “not anticipated or addressed” by the Act or its regulations, and “beyond the person’s control” (para 26). As well, “disproportionate hardship” is defined as exercising “an unreasonable impact on the applicant due to their personal circumstances” (para 26).
The Guidelines are not legally binding, however, and are not intended to be exhaustive or restrictive. Thus the majority noted that officers should not restrict their own discretion by interpreting the guidelines as segmented, mandatory requirements to limit humanitarian and compassionate discretion under s. 25(1). Rather, as the majority noted, “unusual and undeserved or disproportionate hardship” should be read in a descriptive sense, not as a discrete category to limit relief (paras 30-33). Thus the majority held that the words “unusual and undeserved or disproportionate hardship” should not be interpreted to create three new thresholds for relief, separate and apart from the humanitarian purpose of s. 25(1).
In reaching this decision, the Court reasoned that the purpose of s. 25(1) is to offer equitable relief, and as such, it should be read in a way that gives effect to all humanitarian and compassionate issues in a particular case (para 33). Thus the majority also acknowledged the mistreatment that Mr. Kanthasamy experienced from the Sri Lankan authorities, as they noted how he had been detained at an army camp, and soldiers had threatened him with weapons.
As such, the majority was critical of the segmented approach of the immigration Officer in analyzing Mr. Kanthasamy’s youth, mental health, and discriminatory treatment in Sri Lanka as distinct categories, rather than assessing his situation as a whole. The effect of this approach was to improperly restrict the discretion of the Officer, such that her decision was found to be unreasonable by the Court.
It was interesting and encouraging to note both the consideration of the mental health of Mr. Kanthasamy by the majority of the Court, but also his age, in that the Court agreed with the simple realization expressed in Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475, that, “[c]hildren will rarely, if ever, be deserving of any hardship” (Hawthorne, at para 9). The majority further held that the Officer had failed to make a decision in the best interest of the child, as the assumption that children do not ever deserve hardship had not been properly considered.
In contrast, Justices Moldaver and Wagner dissented in the judgment, holding that there is no agreement over the test for granting relief under s. 25(1). However, the dissent did agree with the majority over the meaning of “justified by humanitarian and compassionate considerations.”
Yet in contrast with the majority, the dissent would have advanced a limited use for the relief under s. 25(1), as they interpreted Parliament’s intention to be that the provision should provide “exceptional” relief. The dissent also expressed that the majority’s interpretation of the provision would amount to a “freestanding immigration process” of routinized relief, when it should strike a balance between “stringency and flexibility” (para 102).
In their concern over the creation of a “freestanding immigration process” the dissent cited evidence presented before a conservative-dominated parliament in 2010, that the use of humanitarian and compassionate grounds was leading to a “backlog…made up of failed asylum claimants” (House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40, cited in Kanthasamy, at para 90).
Thus the dissent would have held that the test for granting relief should be a high bar to meet, available in limited and exceptional cases. Furthermore, the dissent argued that the views of “decent, fair minded Canadians” should be relevant to the test, such that:
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 (para 101).
As such, the test advocated by the dissent invokes an element of the views of the ordinary, “common sense” Canadian, rather than a focus on the plight of the refugee-clamant. The dissent declined to site a legal precedent for this test but they did further situate this high bar to meet for an applicant seeking relief, that of “unacceptability”:
To be “simply unacceptable”, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted (para 101).
As such, the dissent’s focus on what they perceived to be the “broad consensus” of “fair minded Canadians” led them to believe that the Officer’s decision to deny relief was reasonable. However, the dissent also did not conduct a standard of review analysis, so we have little guidance on how this could possibly be reasonable from the dissent.
The decision of the majority represents a victory for immigration and refugee rights, and leads to a broad and inclusive definition of what constitutes humanitarian and compassionate grounds. Together with the recent decision in R v Appulonappa, 2015 SCC 59–in which the Court “read down” the human smuggling law such that it would not capture refugee claimants–the Court seems to be favouring a more equitable and humanitarian approach to immigration and refugee law, a welcome development for those of us with an interest in social justice through law.