Test for residency for refugees, loosened on humanitarian grounds

Supreme Court of Canada: While deciding on serious issue relating refugee rights the Court observed that, the Tamil teenager who fled the violent aftermath of Sri Lanka’s 27-year civil war should have his refugee application reconsidered on humanitarian grounds. By a ratio of 5:2, the court has reversed a decision by the Federal Court of Appeal that upheld the rejection of the petitioner named Jeyakannan Kanthasamy’s claim that he would suffer serious hardship if he returned to his homeland.

The Petitioner was 16 years old in 2010 when his family sent him to Canada after the Sri Lankan army and police detained and threatened him on separate occasions. It was one year after Sri Lanka’s long civil war ended with a massive offensive by government forces on Tamil-held areas of the country that has since sparked a United Nations investigation of allegations of war crimes by both sides in the conflict.

The Supreme Court majority said the official’s approach was misbegotten: ‘Most psychologists have not witnessed the events affecting their patients, and the worsening of Mr. Kanthasamy’s mental health in the event of deportation had to be considered, rather than simply what treatment was available in Sri Lanka. His best interests as a child were also critical, the majority said. Rather than treating the “disproportionate hardship” guideline as a litmus test, the majority said the Canadian government needs to look at the full context, including discrimination, medical inadequacies, the consequences of separating from relatives, and family-violence issues in all cases where humanitarian grounds are claimed.’

Rosalie Abella J., writing for the majority, said the immigration official who rejected Mr. Kanthasamy’s request for humanitarian consideration did not look at his circumstances as a whole, or give “serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka.” It was also viewed that, the immigration officer who rejected Kanthasamy’s claim took an “anemic” view of the case and the bench has ordered that the matter be reheard. Abella J. also said that the officer “required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported … it reflects an anemic view of discrimination that this court largely eschewed decades ago.”

In a dissenting opinion, Michael Moldaver J. says the immigration officer made a reasonable analysis of the application. The dissenting judges said while some flexibility is necessary, the granting of humanitarian and compassionate entry should be restricted to exceptional circumstances. “Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend,” Michael Moldaver J. wrote in an opinion with which Richard Wagner J. concurred. The ruling offers new guidance to officials on interpreting a section of the Immigration and Refugee Protection Act that allows for refugee claims to be granted on “humanitarian and compassionate” grounds. [Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 File No.:35990, Decided on 10.12.2015]

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