SCC loosens test for residency on humanitarian grounds

The Supreme Court of Canada struck a compassionate note today as it set aside a decision by the former Ministry of Immigration to reject the post-refugee application on humanitarian grounds of a child fleeing war.

The decision, Kanthasamy v. Canada takes on added significance for Canada as it welcomes its first wave of Syrian refugees today. Here, the applicant was a 16-year-old Tamil boy from northern Sri Lanka. His parents, fearing for his safety after Sri Lanka’s civil war, had arranged for him to live with his uncle in Toronto.RonPoulton

Kanthasamy’s refugee application was rejected by the refugee board, whose decision was then upheld by the Federal Court and again at the Federal Court of Appeal.

When the boy then applied for the Minister of Immigration to exercise his statutory discretion to grant permanent residency on humanitarian grounds, the officer reviewing the application used guidelines to conduct a “hardship assessment,” which ultimately concluded that (a) the boy’s post-traumatic stress disorder could be treated in Sri Lanka, and (b) there was no specific evidence of discrimination in his case.

In a 5-2 decision written by Justice Rosalie Abella, the SCC found that the immigration officer applied the guidelines so rigidly as to misconstrue them, ignoring the purpose of the provisions granting ministerial discretion in the first place — namely, to allow for compassion where appropriate.

As the decision states: “Officers should not fetter their discretion by treating them as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion anticipated by [the Immigration and Refugee Protection Act].”

The decision, moreover, finds the application of hardship assessments used to deny compassionate grounds for children particularly egregious, given that children cannot be said to be “deserving” of any hardship.

“ . . . by evaluating K’s best interests through the same literal approach she applied to each of his other circumstances . . . the Officer misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that children cannot be said to be deserving of hardship.”

Immigration lawyers Ron Poulton and Toni Schweitzer intervened in the case on behalf of the Parkdale Community Legal Services (which, incidentally, was the first time a husband and wife legal team appeared together before the court).

Poulton says the decision helps to “cleanse” the injustices in immigration law that had been mounting under the previous federal government, and helps bring Canada back into line with its basic values.

“We saw over the past six to eight years a very different immigration department,” he says. “We saw one that was much more restrictive. We saw one that was refusing cases that, prior to, would not have been refused, and we saw a very closed-minded department. . . . So the impression we definitely got was that they received marching orders at some level of government that it was time to close the door.”

Reading the evidence in Kanthasamy, Poulton says he could see the immigration officer “reaching” to refuse residency: “The problem with the way that they were exercising their discretion was that they weren't exercising it. They were following a rigid template. . ..They fettered their discretion when they should have been looking at it through the lens of equity.”

Even if the hardship assessment did apply to a child — and the Supreme Court states unequivocally that it does not — Poulton says that the immigration office wasn’t applying the assessment properly, with perhaps the most obvious example being the casual dismissal of the boy’s mental condition.

“This young man had post-traumatic stress disorder,” he says, “and what the [immigration] officer said was, you can get treatment for that in Sri Lanka. And the court said, well, that's ridiculous. You have to consider the impact on his mental health in leaving, not just the fact that he maybe can get treatment for something.”

Ultimately, Poulton hopes that this decision will guide future governments toward policies that reflect Canadians’ compassionate nature.

“This demonstrates, as well as how our nation has responded [to the Syrian crisis], the ‘un-Trump-like’ attitude of Canadians — that we’re open to people from other countries and other nationalities. Were compassionate to them, and we’re willing to help them in any way that we possibly can.”


In other news, the SCC today granted leave to appeal in Green v. Law Society of Manitoba. The case deals with a lawyer who was suspended for not completing a sufficient number of continuing professional development activities. Green argues that the law does not explicitly provide for suspension in such circumstances. His arguments were dismissed in a lower-court appeal.

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