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Kanthasamy and the spring cleaning of immigration law

The far-reaching effects of the Supreme Court of Canada decision in Kanthasamy v. Canada (Citizenship and Immigration) are causing tremors through the immigration system, at all levels.

Pending judicial review applications are being consented to. Refused humanitarian applications are being re-opened. This decision is big, maybe the biggest in recent memory in immigration law for the expanse of impact on an archaic system of decision-making that had come to value speed and retribution over anything resembling compassion.

In fact, it feels as though an entire system is under overhaul; like windows being opened and rugs beaten for spring cleaning. Immigration officers are now calling me back when I call and . . . wait for it: talking to me!

This has not happened much over the last eight years, so I’m a little giddy with the new reality. Kanthasamy could not have come at a better time. With immigration’s new perspective on life, compassion may actually be . . . compassionate.

The recent decision of the Federal Court in Lu v. Canada (Citizenship and Immigration) is a prime example of the changes afoot. Not only did the Federal Court chastise the minister’s counsel for not consenting to the judicial review, it also came within a hair of issuing a directed verdict — unheard of in immigration law.

All of this arose because of the new principles of humanitarian relief espoused through the SCC’s Kanthasamy decision.

The facts in Lu are as follows: Wenbin Lu applied for permanent residency in Canada under the Alberta Nominee Program and was accepted along with his wife and small child. He had a second child, however, and did not tell Canada Immigration about him because he was afraid that Chinese authorities would discover that he had violated their strict one-child policy and be subjected to severe repercussions and financial penalties.

After gaining permanent residency in Canada, Lu tried to bring his son to Canada. He first saved enough money, working as a meat cutter in Canada, to pay the fine imposed by the Chinese government to register his son as a legal child in China. That fine cost him the equivalent of C$15,000.

The boy is now 8 and lives with caregivers in China who are paid by Lu from his work in Canada. The family in Canada returns to China as often as possible to visit him, but the distance and cost are prohibitive.

After becoming a Canadian citizen, Lu submitted an overseas humanitarian application. The boy’s caregivers in China faced serious age-related health concerns and could no longer care for him. He was about to be abandoned.

In rejecting the humanitarian application, the visa officer stated that the 8 year old would not suffer hardship by remaining in China because his suffering was a direct result of the actions of his parents in keeping him off their permanent residency applications.

This fixation by the officer with the actions of the boy’s parents was harshly condemned by the court, stating that “a very young boy can do nothing about the hard choices his family feels it had to make to leave China.”

Noting that the law had changed considerably since the SCC decision in Kanthasamy, the court quashed the decision and had this to say:

“It is troubling to the Court that the Minister would choose to defend a decision that contains such obvious reviewable errors and is so inhumane in its impact upon a young child, as well as immediate family.”

Indeed. In remedy, the court acknowledged it had the power to issue a directed verdict and grant the humanitarian application. Justice James Russell then appears to have gone on to do just that — sort of.

He held that although it was not the role of the court to substitute its own view for the preferred outcome, given the circumstances of the case and the decision of the Supreme Court in Kanthasamy, the decision fell well outside of a range of possible outcomes considered reasonable.

The court urged the visa officer to deal with the case urgently and  there did not appear to be anything in the evidence to disallow a positive decision on humanitarian and compassionate grounds. In other words, the court directed a verdict of approval, more or less.

The SCC’s decision in Kanthasamy means that humanitarian and compassionate grounds in s. 25 of the Immigration and Refugee Protection Act must mean humanitarian and compassionate grounds. For some strange reason, that is brand new.