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Through the lens of compassion; new decisions on the meaning of s. 25

Over the past year, the Federal Court, in a small but growing list of decisions, has signaled that the effect of the Supreme Court of Canada decision in Kanthasamy v. MCI is finally making a difference in decisions rendered under s. 25 of the Immigration and Refugee Protection Act. Immigration officers may not believe it has done so, but the court does.

What the SCC had done was interpret s. 25 for what it is: a section about compassion. For too long, front-line officers had rejected applications that had not complied with the rigid hardship test of unusual, undeserved and disproportionate, without reference or consideration to the very wording of the section: compassion.

But, what does compassion mean? Immigration officers were left to figure that out. The Federal Court has now given them direction.

In Apura v. Canada, the court finally did away with the common misconception that the humanitarian program is one in which an applicant must demonstrate exceptional circumstances, something beyond the norm. In relying time and again on this nearly impossible measure for “compassion,” the humanitarian program had been diluted into a hunt for exceptional people who either had been financially successful by starting businesses and buying property or had become significant community leaders or even athletes.

 In one notable case of mine, a prospective Olympic wrestler, in Canada as a refugee claimant for less than one year, was viewed as “exceptional” and granted permanent residency on humanitarian grounds and then fast-tracked for citizenship — just in time for the Olympic trials.

But that is not what compassion is about. In Apura, the court considered the case of a former caregiver who left her husband and three daughters behind to take on a caregiving job. After arriving in Canada, she gave birth to a fourth child. She then lost her job. Out of a job and with no home, she moved in with her sister. That ended when she felt physically threatened in the home and was kicked out.

Apura’s husband and three daughters live in rural poverty in the Philippines. They do not have running water. The applicant sends money home to support them, and they rely on it. The immigration officer took note of all of these factors, concluded that they did not disclose anything exceptional and refused the applicant. The court overturned this decision and said this:

“Humanitarian and compassionate factors ought to direct the decision-maker’s attention to the fact that the Applicant has been trying to support her family to the best of her ability but has faced many setbacks in doing so, most of which are beyond her control. The family’s experience with a devastating typhoon is one factor and her termination six months into a three-year contract of employment (quite possibly on the basis of her pregnancy) is another. The officer applied the incorrect legal test by failing to have sufficient regard for the equitable relief purpose behind s. 25 of IRPA.”

In other words, though she was not a successful business tycoon or Olympian, the applicant’s circumstances compel an act of compassion to relieve her hardship. That is what s. 25 is all about.

Appearing now in decisions is the phrase “lens of compassion,” wherein officers are criticized by the court for failing to see the need for compassion in a case. In Mursalim v. Canada, one of the rare overseas s. 25 determinations, the court overturned the decision of a visa officer who had decided that, as no hardship was disclosed in the file, the application would be rejected. The applicant in that case had been an overseas dependant of his mother, subject to concurrent processing for landing as she had been accepted as a refugee in Canada. At the time of the first such application, the visa office breached principles of fairness in refusing it. At the time of the second application, the applicant had aged out, was no longer a dependant and could, therefore, not be processed for landing. He then filed a request for compassionate consideration, which was refused. The officer claimed that he had not established sufficient hardship. In overturning this decision, the court noted that the officer erred by looking through the lens of hardship and that it was unfair that the applicant lost an opportunity to come to Canada because a visa officer had breached principles of fairness in the initial application, when he was eligible.

Equity is making its mark on s. 25 decisions, a very welcome new lens of appreciation.