Kanthasamy v. Canada (Minister of Citizenship and Immigration), (2015) 479 N.R. 103 (SCC)

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 10, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 479 N.R. 103 (SCC);2015 SCC 61

Kanthasamy v. Can. (M.C.I.) (2015), 479 N.R. 103 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. DE.013

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)

(35990; 2015 SCC 61; 2015 CSC 61)

Indexed As: Kanthasamy v. Canada (Minister of Citizenship and Immigration)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

December 10, 2015.

Summary:

Kanthasamy, a Tamil from Sri Lanka, arrived in Canada in 2010 and claimed refugee protection. In February 2011, the Immigration and Refugee Board refused his application. His Pre-removal Risk Assessment application was refused. His application on Humanitarian and Compassionate (H&C) grounds under s. 25(1) of the Immigration and Refugee Protection Act (IRPA), to permit him to apply for permanent resident status from within Canada, was refused. The Minister of Citizenship and Immigration agreed to reconsider the H&C application. A Senior Immigration Officer refused to grant the exemption as she was not satisfied that Kanthasamy's return to Sri Lanka would result in hardship that was unusual and undeserved or disproportionate. Kanthasamy applied for judicial review.

The Federal Court, in a judgment reported (2013), 437 F.T.R. 120, dismissed the application. Kanthasamy appealed and the court certified the following question: "What is the nature of risk, if any, to be assessed with respect to humanitarian and compassionate considerations under section 25 of IRPA, as amended by the Balanced Refugee Reform Act?".

The Federal Court of Appeal, in a judgment reported (2015), 459 N.R. 367, dismissed the appeal. The court answered the certified question as follows: "Matters such as a well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment - factors under sections 96 and 97 - may not be considered under subsection 25(1) by virtue of subsection 25(1.3). However, the facts underlying those factors may nevertheless be relevant insofar as they related to whether the applicant is directly and personally experiencing unusual and undeserved, or disproportionate hardship.". The Federal Court did not err in finding that the Officer's decision was reasonable. Kanthasamy appealed.

The Supreme Court of Canada, Moldaver and Wagner, JJ., dissenting, allowed the appeal. The court disagreed that the Officer's decision was reasonable.

Aliens - Topic 4

Definitions and general principles - Children - Section 25(1) of the Immigration and Refugee Protection Act provided that the Minister could grant permanent resident status or exempt a foreign national from any obligations under the Act if "it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected" - The Supreme Court of Canada stated that "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 ... This means that decision-makers must do more than simply state that the interests of a child have been taken into account ... Those interests must be 'well identified and defined' and examined 'with a great deal of attention' in light of all the evidence ... 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 '[c]hildren 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" - See paragraphs 39, 41.

Aliens - Topic 25

Definitions and general principles - Immigration manuals, guidelines, etc. - The Supreme Court of Canada stated that "the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act ... But as the Guidelines themselves acknowledge, they are 'not legally binding' and are 'not intended to be either exhaustive or restrictive' ... Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1) discretion, but should turn '[their] mind[s] to the specific circumstances of the case' ... They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1)" - See paragraph 32.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Section 25(1) of the Immigration and Refugee Protection Act provided that the Minister could grant permanent resident status or exempt a foreign national from any obligations under the Act if "it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected" - Ministerial Guidelines provided that for humanitarian and compassionate considerations to warrant relief under s. 25(1) there had to be "unusual and undeserved" or "disproportionate" hardship - The Supreme Court of Canada rejected the argument that the words unusual and undeserved or disproportionate hardship set out the test an applicant had to meet in order to receive an exemption based on humanitarian and compassionate grounds - The correct approach was that "the Guidelines and the 'unusual and undeserved or disproportionate hardship' threshold merely provide assistance to the immigration officer but that they should not be interpreted as fettering the immigration officer's discretion to consider factors other than those listed in the Guidelines" - This approach "focuses more on the equitable underlying purpose of the humanitarian and compassionate relief application process. ... The words 'unusual and undeserved or disproportionate hardship' should therefore 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, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of 'unusual and undeserved or disproportionate hardship' in a way that limits their 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" - See paragraphs 29, 31, 33.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - A 17 year old Tamil from Sri Lanka applied for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act after his refugee claim was denied - The immigration officer accepted that young Tamils faced discrimination and harassment in Sri Lanka, but she was not satisfied that "return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate" - The Supreme Court of Canada held that the officer's decision was unreasonable - The decision was set aside and remitted for reconsideration - The court stated that "the Officer failed to consider [the applicant's] circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his 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, assessed each factor to see whether it represented hardship that was 'unusual and undeserved or disproportionate', then appeared to discount each from her final conclusion because it failed to satisfy that threshold. Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his 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 and rendering her decision unreasonable. ... the Officer required [the applicant] to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago. ... the Officer's analysis of the 'best interests' factor cannot be characterized as anything other than perfunctory. ... [the officer] 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" - See paragraphs 42 to 60.

Aliens - Topic 4062

Practice - Judicial review and appeals - Powers of review of appellate court (incl. standard of review) - Kanthasamy, a Tamil from Sri Lanka, arrived in Canada in 2010 - His refugee protection, Pre-removal Risk Assessment (PRRA) and Humanitarian and Compassionate (H&C) grounds applications were refused - The Minister of Citizenship and Immigration agreed to reconsider his application on H&C grounds, pursuant to s. 25(1) of the Immigration and Refugee Protection Act (IRPA) - A Senior Immigration Officer refused to grant the exemption as she was not satisfied that Kanthasamy's return to Sri Lanka would result in hardship that was unusual and undeserved or disproportionate - Kanthasamy applied for judicial review, asserting that the Officer unreasonably found that Kanthasamy would not face unusual and undeserved or disproportionate hardship due to his profile as a young Tamil male - Kanthasamy appealed and the court certified the following question: "What is the nature of risk, if any, to be assessed with respect to humanitarian and compassionate considerations under section 25 of IRPA, as amended by the Balanced Refugee Reform Act?" - The Federal Court of Appeal stated that "This Court has consistently taken the view that where a certified question asks a question of statutory interpretation, this Court must provide the definitive interpretation without deferring to the administrative decision-maker. Then, this Court must assess whether there are grounds to set aside the outcome reached by the administrative decision-maker on the facts and the law. In a subsection 25(1) matter, that part of the decision - one involving fact-finding and factually-based exercises of discretion - is reviewed on the deferential standard of reasonableness." - The Supreme Court of Canada held that "certified questions are not decisive of the standard of review ... Despite the presence of a certified question, the appropriate standard of review is reasonableness" - See paragraphs 42 to 44.

Cases Noticed:

Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470; 15 N.R. 396, refd dto. [para. 11].

Chirwa v. Canada (Minister of Employment and Immigration) (1970), 4 I.A.C. 338 (Imm. App. Bd.), refd to. [para. 13].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 17].

United States of America et al. v. Johnson (2002), 166 O.A.C. 345; 62 O.R.(3d) 327 (C.A.), refd to. [para. 18].

Diarra v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 866; 2006 FC 1515, refd to. [para. 18].

Love v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 879; 43 Imm. L.R.(3d) 111 (F.C.), refd to. [para. 18].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 19].

Rizvi v. Canada (Minister of Citizenship and Immigration) et al., [2009] F.T.R. Uned. 678; 2009 FC 463, refd to. [para. 23].

Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 597; 10 Imm. L.R.(3d) 206 (T.D.), refd to. [para. 23].

Flores v. Canada (Minister of Citizenship and Immigration) et al., [2013] F.T.R. Uned. 639; 2013 FC 1002, refd to. [para. 29].

Sivagurunathan v. Canada (Minister of Citizenship and Immigration) et al., [2013] F.T.R. Uned. 102; 2013 FC 233, refd to. [para. 29].

Park et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 242; 2012 FC 528, refd to. [para. 29].

Lim v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 884; 2002 FCT 956, refd to. [para. 30].

Chen (P.) v. Canada (Minister of Citizenship and Immigration) (2003), 232 F.T.R. 118 (F.C.), refd to. [para. 30].

Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; 297 N.R. 187 (F.C.A.), refd to. [para. 30].

Singh v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 265; 2014 FC 621, refd to. [para. 30].

Maple Lodge Farms Ltd. v. Canada and Canada (Minister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 32].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299; 2004 FCA 49, refd to. [para. 32].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 35].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 35].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 35].

A.B. v. Bragg Communications Inc. et al., [2012] 2 S.C.R. 567; 434 N.R. 323; 322 N.S.R(2d) 1; 1021 A.P.R. 1; 2012 SCC 46, refd to. [para. 36].

MacGyver v. Richards (1995), 84 O.A.C. 349; 22 O.R.(3d) 481 (C.A.), refd to. [para. 36].

Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; 288 N.R. 174 (F.C.A.), refd to. [para. 39].

Kolosovs v. Canada (Minister of Citizenship and Immigration) (2008), 323 F.T.R. 181; 2008 FC 165, refd to. [para. 39].

Kim v. Canada (Minister of Citizenship and Immigration), [2011] 2 F.C.R. 448; 364 F.T.R. 103; 2010 FC 149, refd to. [para. 41].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 44].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268, refd to. [para. 44].

Davis v. Canada (Minister of Citizenship and Immigration), 96 Imm. L.R.(3d) 267 (F.C.), refd to. [para. 48].

Martinez v. Canada (Minister of Citizenship and Immigration) (2014), 447 F.T.R. 146; 14 Imm. L.R.(4th) 66 (F.C.), refd to. [para. 48].

Divakaran v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 384; 2011 FC 633, refd to. [para. 53].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 54].

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 54].

A. v. B., [2013] 1 S.C.R. 61; 439 N.R. 1; 2013 SCC 5, refd to. [para. 54].

Quebec (Attorney General) v. A. - see A. v. B.

Aboubacar v. Canada (Minister of Citizenship and Immigration) (2014), 460 F.T.R. 84; 2014 FC 714, refd to. [para. 56].

Williams v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 79; 2012 FC 166, refd to. [para. 59].

Pan v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 943; 2008 FC 1303, refd to. [para. 79].

Paz v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 252; 2009 FC 412, refd to. [para. 93].

Pannu v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 924; 2006 FC 1356, refd to. [para. 93].

Jacob v. Canada (Minister of Citizenship and Immigration) et al. (2012), 423 F.T.R. 1; 2012 FC 1382, refd to. [para. 98].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 104].

R. v. Babos (A.), [2014] 1 S.C.R. 309; 454 N.R. 86; 2014 SCC 16, refd to. [para. 104].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 111].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30, [2013] 2 S.C.R. 458; 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 138].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1) [para. 10].

Counsel:

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.

Solicitors of Record:

Jackman, Nazami & Associates, Toronto, Ontario, for the appellant;

Attorney General of Canada, Toronto, Ontario, for the respondent;

Neighbourhood Legal Services, Toronto, Ontario; Ottawa Community Legal Services, Ottawa, Ontario, for the intervener, the Canadian Council for Refugees;

Justice for Children and Youth, Toronto, Ontario, for the intervener, Justice for Children and Youth;

Refugee Law Office, Toronto, Ontario; Ottawa Community Legal Services, Ottawa, Ontario; Barbra Schlifer Commemorative Clinic, Toronto, Ontario, for the interveners, the Barbra Schlifer Commemorative Clinic and the Canadian Centre for Victims of Torture;

University of Toronto, Toronto, Ontario; Refugee Law Office, Toronto, Ontario, for the intervener, the Canadian Association of Refugee Lawyers;

Poulton Law Office, Toronto, Ontario; Parkdale Community Legal Services, Toronto, Ontario, for the intervener, Parkdale Community Legal Services.

This appeal was heard on April 16, 2015, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada.

On December 10, 2015, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Abella, J. (McLachlin, C.J.C., Cromwell, Karakatsanis and Gascon, JJ., concurring) - see paragraphs 1 to 61;

Moldaver, J. (Wagner, J., concurring), dissenting - see paragraphs 62 to 146.