Supreme Court Issues Decision in Kanthasamy

On December 10, 2015, the Supreme Court of Canada issued its most significant immigration judgment in almost twenty years.   Its decision in Kanthasamy v. Canada (Citizenship and Immigration) will likely result in visa officers assessing applications for Canadian permanent residence on humanitarian & compassionate grounds in a much more holistic and equitable manner than previously.

H&C Applications

People who would not normally be eligible to become permanent residents in Canada may apply to immigrate on humanitarian & compassionate  (“H&C”) grounds.  A typical H&C applicant is someone who does not meet the requirements of any of Canada’s economic or family reunification programs.  As well, applicants who do qualify for more traditional immigration programs, but who are inadmissible to Canada, may also request (with narrow exceptions) that their inadmissibility be waived for H&C reasons.

When visa officers review H&C applications, they analyze several factors, including the person’s establishment in Canada, their family ties to Canada, the best interests of any children involved, and what could happen to the applicants if their H&C applications are not granted.

Prior to Kanthasamy, the criterion for an H&C application was whether applicants would suffer “unusual and undeserved or disproportionate hardship” if their applications were refused.  Indeed, Citizenship and Immigration Canada’s guidelines on numerous occasions explicitly instructed officers that the assessment of a H&C application was a determination of whether the applicant met this test.  “Unusual and undeserved hardship” was defined as hardship that was not anticipated or addressed by immigration legislation, and was “beyond the person’s control.”  “Disproportionate hardship” was defined as an “unreasonable impact on the applicant due to their personal circumstances.”

Kanthasamy

In Kanthasamy, the Supreme Court of Canada found that while immigration officers should treat the “unusual and undeserved or disproportionate hardship” factors described above as descriptive, they do not crate three new thresholds for relief, each of which must be met by applicants.  Rather, officers are to analyze applications holistically to simply determine whether there are sufficient H&C considerations to warrant approval.

To be clear, Kanthasamy does not stand for the proposition that any positive H&C factors will automatically lead to an approval. Indeed, the Supreme Court of Canada explicitly reaffirmed that hardship alone will not generally be sufficient to warrant relief on H&C grounds, nor are H&C applications meant to duplicate refugee proceedings.

Rather, Kanthasamy stands for the proposition that officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them, and not be found be evaluating them against overly rigid and strict criteria.

As well, the Supreme Court clarified that immigration officers considering the hardship of potential discrimination against a person who was returned to his/her country of origin should not be overly narrow in how they assess the discrimination. H&C consideration may be warranted where discrimination could manifest itself in isolated or systemic incidents, and an applicant only needs to show that he/she would likely be affected by adverse conditions back home. As well, the Supreme Court reiterated that where an applicant is a member of a group that is typically discriminated against in his/her home country, it is reasonable to infer that the applicant will face discrimination and hardship, and positive H&C consideration may be warranted.

Finally, in Kanthasamy the Supreme Court of Canada further reminded visa officers that when considering the best interests of children that it is insufficient for officers to simply state that the children’s interests were taken into account. Rather, the interests of children must be “well identified and defined” and examined “with a great deal of attention” in light of all the circumstances   The test for officers when assessing children is not hardship, but rather what their best interests are.

Going Forward

Kanthasamy re-introduces and re-affirms that visa officers have the equitable discretion to holistically determine whether there are sufficient H&C grounds to warrant approval, and that Citizenship and Immigration Canada cannot bind them to an overly rigid standard.  It is vague, however, on how officers are to actually assess H&C applications.  In Kanthasamy, the dissenting Supreme Court justices cautioned that the decision appears to have watered down the stringency of the H&C assessment, and that equitable relief might now be granted in cases which simply arouse strong feelings of sympathy in visa officers.  Although it is too early to determine the accuracy of their prediction, applicants submitting H&C applications should be grateful that their applications are being assessed post-Kanthasamy in a much more holistic manner than they may otherwise have been.


Joseph v. Canada and the Difficulty of H&C Assessments

I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question:

What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration 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?

The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary.

Joseph v. Canada

In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions:

1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act?

2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on removal are not those generally faced by others in their country of origin?

3) If the answer to question 2) is no, can the conditions in the country of origin support a reasoned inference as to the challenges any applicant would face on return to his or her country of origin, and thereby provide an evidentiary foundation for a meaningful, individualized analysis of hardships that will affect the applicant personally and directly as required by Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113, 459 NR 367, leave to appeal to the SCC granted, [2014] SCCA No 309?

The issue essentially boils down to whether the personalized vs. generalized risk determination that is determinative in protected persons applications is also a factor to consider in humanitarian & compassionate consideration requests.  There has been some divergence on the matter. In Diabate v Canada (Citizenship and Immigration), 2013 FC 129, for example, Justice Gleason stated:

The officer’s role in an H&C analysis is to assess whether an individual would face “unusual and undeserved or disproportionate hardship” if required to apply for permanent residence outside of Canada. It is both incorrect and unreasonable to require, as part of that analysis, that an applicant establish that the circumstances he or she will face are not generally faced by others in their country of origin. Rather, the frame of analysis for H&C consideration has to be that of the individual him or herself, which involves consideration of whether the hardship of leaving Canada and returning to the country of origin would be undue, undeserved or disproportionate.

While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return to Niger. This is not speculation, rather it is a reasoned inference, of a non – speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis as required by [Kanthasamy].

However, as Justice Annis noted in Joseph, this can create a scenario in which every H&C application from a country in which there is a generalized likelihood of hardship must succeed. He wrote:

As I understand Justice Shore’s reasons, there is a general policy that prevents entire populations of foreign nationals, or large groups of them, from claiming permanent residency in Canada as a right. Logically, because general country conditions by definition apply to all members (or subsets of members) of society, it is not enough to rely simply on being a member of society, all of whom are subject to a risk of unusual hardship from these conditions. If this were the case, “every H&C application made by a national of a country with problems would have to be assessed positively”

Accordingly, the principle has been adopted that permanent residency may only be granted to individuals based on their personal circumstances, and not based simply on the evidence of those conditions generally faced by all the population in their country of origin.  If, as in this case, only evidence of general conditions is put forward, the claim will be defeated for lack of sufficient evidence demonstrating exceptional personal circumstances that cause those conditions to directly affect the applicant.

I recognize that this requirement is similar to the requirement under section 97 for an applicant to demonstrate personalized targeting where her or relies on general country conditions, as described above in Guerrero (see also: Wan v Canada (Citizenship and Immigration), 2014 FC 124,243 ACWS (3d) 955; Gomez v Canada (Citizenship and Immigration), 2011 FC 1093, 397 FTR 170; Guifarro v Canada (Citizenship and Immigration), 2011 FC 182, 198 ACWS (3d) 470; Pineda v Canada (Citizenship and Immigration), 2007 FC 365, 65 Imm LR (3d) 275). However, I do not see how any allegation of a generalized risk that meets the requirement to apply personally, directly and exceptionally to the applicant can be otherwise construed without avoiding the result that “every H&C application made by a national of a country with problems would have to be assessed positively” (Lalane at para 1).

Given the divergent Federal Court decisions on the matter, it is now up to the Federal Court of Appeal to decide.

Of course, by the time it does so, the Supreme Court of Canada’s decision in Kanthasamy may change the H&C factors and principles entirely.

 


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.