Awaiting Kanthasamy – And the Possible ReWriting of H&C Considerations

On April 16, 2015, the Supreme Court of Canada announced that it was reserving its decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration (“Kanthasamy”). When it is released, Kanthasamy may be the most significant immigration decision since Baker v. Canada (Minister of Citizenship and Immigration).

As noted in the Appellant’s factum, the issue that the Supreme Court of Canada will be addressing is:

What is the scope of the humanitarian & compassionate discretion in s. 25 of the Immigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected?

As any immigration practitioner can confirm, if the Supreme Court of Canada broadens the current restrictive interpretation of humanitarian & compassionate considerations under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) it would cause a monumental shift in the processing of immigration applications.

The Federal Court of Appeal Decision 

In Kanthasamy v. Canada (Citizenship and Immigration), 2013 FC 802, the Federal Court certified the following question of general importance.

What is the nature of the 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 answered as follows:

Matters such as 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 relate to whether the applicant is directly and personally experiencing unusual and undeserved, or disproportionate hardship.

In its answer, the Federal Court of Appeal stated :

The Federal Court has repeatedly interpreted subsection 25(1) as requiring proof that the applicant will personally suffer unusual and undeserved, or disproportionate hardship arising from the application of what I have called the normal rule: see, e.g., Singh v. Canada (Minister of Citizenship & Immigration), 2009 FC 11. The hardship must be something more than the usual consequences of leaving Canada and applying to immigrate through normal channels: Rizvi v. Canada (Minister of Employment and Immigration), 2009 FC 463.

As a general matter, the consequences are unusual and undeserved, or disproportionate hardship associated with leaving Canada, associated with arriving and staying in the foreign country, or both.

It is these principles about humanitarian & compassionate consideration, which most immigration practitioners almost take for granted, that are up for review by the Supreme Court.

Standard of Review

Kanthasamy will also provide the Supreme Court of Canada with the opportunity to clarify the appropriate standard of review for questions that the Federal Court certifies as being questions of general importance.  As the Federal Court of Appeal noted:

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.

Until Agraira, the Supreme Court approached immigration matters in the same way. The Supreme Court assessed whether this Court correctly answered the stated question on statutory interpretation. See e.g., Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706. Then it proceeded to assess, on the basis of the deferential reasonableness standard, whether there were grounds to set aside the outcome reached. On that part of the review, the Supreme Court has emphasized the need for “considerable deference [to] be accorded to immigration officers exercising the powers conferred by the legislation,” given “the fact-specific nature of the inquiry, [subsection 25(1)’s] role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language”: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62.

In Agraira, the Supreme Court conducted reasonableness review on the administrative decision-maker’s decision on the statutory interpretation issue, ignoring the fact that the case proceeded in this Court in response to a certified question from the Federal Court. It did not vet this Court’s answer to the stated question.

There is nothing in the Supreme Court’s reasons in Agraira to explain this apparent change in approach. For that reason, until some clarification from the Supreme Court is received, it is my view that this Court should continue to follow its practice of providing the definitive answer to a certified question on a point of statutory interpretation. In reaching that conclusion, I note that the Supreme Court in Agraira did not say or suggest that this Court’s practice was wrong.

It will be very interesting to see how the Supreme Court of Canada addresses this issue.  If it holds that the standard of review for questions that the Federal Court certifies as being of general importance, then the purpose of certified questions will be called into questions.  I have previously blogged about the negative consequences of the uncertainty that the reasonableness standard for questions of law presents, and the idea that different visa officers could have different interpretations and answers to questions that even the Federal Court determines are of general importance would even increase the unpredictability and a seemingly increasing arbitrariness in Canadian immigration law.

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