35990   Kanthasamy Canada (Citizenship and Immigration

Immigration — Judicial review — Refugee claim

On appeal from a judgment of the Federal Court of Appeal (2014 FCA 113), affirming a decision of Kane J. (2013 FC 802)

K is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and questioning by the Sri Lankan army and police, K’s family arranged for him to travel to Canada to live with his uncle. He was 16 years old. When he arrived in Canada, he made a claim for refugee protection which was refused. K’s application for a pre‑removal risk assessment was also rejected. K additionally filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act seeking to apply for permanent resident status from within Canada. The Officer reviewing his application concluded that relief was not justified as she was not satisfied that a return to Sri Lanka would result in hardship that was unusual and undeserved or disproportionate. On judicial review, the Federal Court found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal agreed.

Held 5:2 (Moldaver and Wagner JJ. dissenting): The appeal should be allowed. The Officer’s decision was unreasonable and should be set aside. The matter is remitted for reconsideration.

Per McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ:

Section 25(1) of the Immigration and Refugee Protection Act gives the Minister discretion to exempt foreign nationals — individuals who are neither citizens nor permanent residents — from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. The purpose of s. 25(1) is to offer equitable relief. That purpose was furthered in Ministerial Guidelines intended to assist Immigration Officers in determining whether humanitarian and compassionate considerations warrant relief under s. 25(1). They state that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application under s. 25(1) is done by an “assessment of hardship”. What warrants relief will vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them. An officer can take the underlying facts adduced in refugee determination proceedings into account in determining whether the applicant’s circumstances warrant humanitarian and compassionate relief.

The Guidelines state that applicants must demonstrate either “unusual and undeserved” or“disproportionate” hardship for relief under s. 25(1) to be granted. “Unusual and undeserved hardship” is defined in the Guidelines as hardship that is “not anticipated or addressed” by the Act or its regulations, and is “beyond the person’s control”. “Disproportionate hardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”.

While the Guidelines are useful, they are not legally binding and are not intended to be either exhaustive or restrictive. 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 s. 25(1). The words “unusual and undeserved or disproportionate hardship” should instead 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, officers should not look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds. This has the result of using the language of “unusual and undeserved or disproportionate hardship” in a way that limits the officer’s 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.

Section 25(1) also refers to the need to take into account the best interests of a child directly affected. Where, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective. The “best interests” principle is highly contextual because of the multitude of factors that may impinge on the child’s best interests. 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.

It is difficult to see how a child can be more directly affected than when he or she is the applicant. 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 children 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.

In this case, the Officer failed to consider K’s circumstances as a whole and took an unduly narrow approach to the assessment of his circumstances. The Officer failed to give sufficiently serious consideration to K’s 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, assessing each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”. The Officer’s literal obedience to those words, which do not appear anywhere in s. 25(1), rather than looking at K’s 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, rendering her decision unreasonable.

The Officer accepted the diagnosis in the psychological report of post‑traumatic stress disorder, yet required K to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka. Once she accepted that he had post‑traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor. In her exclusive focus on whether treatment was available to K in Sri Lanka, the Officer ignored what the effect of removal from Canada would be on his mental health. The fact that K’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition. And while the Officer did not dispute the psychological report presented, she found that the medical opinion rested mainly on hearsay because the psychologist was not a witness to the events that led to the anxiety experienced by K. This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on hearsay. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. A psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.

The Officer considered the discrimination K would likely endure in Sri Lanka, but effectively concluded that in the absence of evidence from K that he would be personally targeted by discriminatory action, there was no evidence of discrimination. This approach however, failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s identity is relevant under s. 25(1), whether or not the applicant has evidence that he or she has been personally targeted.

Further, the Officer here did not appear to turn her mind to how K’s status as a child affected the evaluation of the other evidence raised in his application. This approach is inconsistent with how hardship should be uniquely addressed for children. Moreover, by evaluating K’s best interests through the same literal approach she applied to each of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — 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. 

The Officer therefore avoided the requisite analysis of whether, in light of the humanitarian purpose of s. 25(1) of the Immigration and Refugee Protection Act, the evidence as a whole justified relief. This approach unduly fettered her discretion and led to its unreasonable exercise.

Per Moldaver and Wagner JJ. (dissenting): 

While there is agreement with much of the majority’s discussion on the meaning of the phrase “justified by humanitarian and compassionate considerations”, there is no agreement with the test proposed for granting relief under s. 25(1). The scheme of the Immigration and Refugee Protection Actand the intention of Parliament in enacting s. 25(1) suggest that this provision is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend. Parliament recognized that cases could arise in which the strict application of the rules would not reflect Canada’s policy goals, or would lead to an arbitrary or inhumane result. That said, Parliament did not intend to provide relief on a routine basis. The test for humanitarian and compassionate (“H&C”) relief must balance the dual characteristics of stringency and flexibility and reflect the broad range of factors that may be relevant.

The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. However, the test falls down on the flexibility side as it risks excluding or diminishing the weight that some factors may deserve in deciding whether H&C relief should be granted. Section 25(1) does not limit when the relevant H&C considerations must occur; nor does it require that they be viewed only from the applicant’s perspective. It asks only that decision makers look at H&C considerations relating to the applicant. Section 25(1) is framed in broad terms because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to enter or remain in Canada. A more comprehensive approach is therefore required.

Bearing in mind the purpose and context of s. 25(1), and the fact that the hardship test used to date may, in some circumstances, be overly restrictive, the test for granting relief should be reframed as follows: 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. To be “simply unacceptable”, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted. This test maintains the stringency of the hardship test — but does not exceed it. At the same time, it is more flexible than the hardship test. It asks decision makers to turn their minds to all of the relevant circumstances when deciding whether refusing relief would be “simply unacceptable”. This prevents decision makers from excluding relevant H&C considerations because they do not fit within the future‑oriented hardship framework or because they do not involve hardship experienced solely by the applicant. The test proposed by the majority does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test.

The Officer’s decision in this case falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, and was therefore reasonable. Decision making under s. 25(1) is highly discretionary and is entitled to deference. Care must be taken not to overly dissect or parse an officer’s reasons. Rather, reasonableness review entails respectful attention to the reasons offered or which could be offered in support of a decision. As is the case with every other court, this Court has no license to find an officer’s decision unreasonable simply because it would itself have come to a different result, lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review.

In evaluating the application, the decision maker must not segment the evidence and require that each piece either rise above the hardship threshold or be discounted entirely. Rather, the decision maker must fairly consider the totality of the circumstances and base the disposition on the evidence as a whole. Likewise, the decision maker must not fetter his or her discretion by applying the Guidelines – the “unusual and undeserved or disproportionate hardship” framework – as a strict legal test to the exclusion of all other factors. Taken as a whole, the Officer’s decision in this case denying K’s H&C application is transparent. She provided intelligible reasons for concluding that K did not meet his onus of establishing, on balance, that he should be permitted to apply for permanent residency from within Canada for H&C reasons. She did not use the hardship framework in a way that fettered her discretion or caused her to discount relevant evidence. Her conclusions are reasonable, and well‑supported by the record. While aspects of K’s situation warrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief.

It was open to the Officer to find that the record did not justify relief under s. 25(1). While the Officer’s reasons could have engaged more fully with the psychological evidence and while it would have been helpful had she specifically addressed the issue of the impact of removal on K’s mental health, her failure to do so does not render her decision unreasonable. The Officer’s approach to the issue of discrimination was also not unreasonable, nor did it render her decision unreasonable. The applicant need only show that the denial of relief would pose a certain risk of harm. However, that risk must necessarily be a “personalized risk”, in the sense that the applicant must fall within the category of people who, on the evidence submitted, would face that risk. When viewed in context, the Officer’s conclusion that K had failed to provide sufficient evidence to support his statements that he will be personally discriminated against simply reiterated the wording of his submissions. Lastly, the Officer’s analysis and conclusion on K’s best interests as a child were also reasonable. It was highly relevant that K was only one day away from turning 18 when he initially applied for H&C relief. K was a teenager on the verge of adulthood. On the record before her, it was open to the Officer to conclude that removal to Sri Lanka would not impair K’s best interests, because he would be returning to his immediate family rather than being separated from them.

Although the Officer applied the hardship standard from the Guidelines, she did not do so in a way that fettered her discretion. Further, had she applied the test reframed, she would inevitably have come to the same result. The Officer’s decision to deny an exemption to K was reasonable.

Reasons for judgment by Abella J.

Dissenting Reasons by Moldaver J.

Neutral Citation: 2015 SCC 61

Docket Number: 35990

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15665/index.do