Court softens rule on humanitarian bids

K, a young determined Tamil, did not take an immigration officer’s decision for granted.
He appealed the negative H&C decision to the Federal Court of Canada which ruled the officer’s decision was reasonable. Then he took it the Federal Court of Appeal and they also agreed.
He sought relief in the Supreme Court of Canada and in a five to two recent decision it allowed his appeal and ordered reconsideration of his matter.
In April 2010, at age 16, fearing for his safety after he was subjected to detention and questioning by the army and police in Sri Lanka K came to Canada and made a claim for refugee protection which was refused. His Pre-Removal Risk Assessment was also refused.
He filed an application for humanitarian and compassionate relief.
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 Section 25(1) is to offer equitable relief.
That purpose is furthered in ministerial guidelines intended to assist immigration officers in determining whether humanitarian and compassionate considerations warrant relief under Section 25(1). They state that determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application is by “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 relevant facts.
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 Section 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.
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 Section 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered.
In this case, the officer failed to consider K’s circumstances as a whole and took an unduly narrow approach to 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, Justice Rosalie Abella ruled.
Abella stated, “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 under the act.
“Officers should not look at Section 25(1) through the lens of the three adjectives as discrete and high thresholds. Finding that no single factor amounted to hardship that was ‘unusual and undeserved or disproportionate’, the officer ultimately concluded that humanitarian and compassionate relief was not warranted. But these three adjectives are merely descriptive, not separate legal thresholds to be strictly construed.
“Finally, the officer not only unreasonably discounted both the psychological report and the clear and uncontradicted evidence of a risk of discrimination, she avoided the requisite analysis of whether, in light of the humanitarian purpose of Section 25(1) of the Immigration and Refugee Protection Act, the evidence as a whole justified relief.
“This approach unduly fettered her discretion and, in my respectful view, led to its unreasonable exercise. I would therefore allow the appeal with costs, set aside the officer’s decision and remit the matter for reconsideration in light of these reasons.”
The court directed that a more flexible and sympathetic approached be taken when assessing this type of application.

Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Toronto, Suite 219A. Phone 416-789-5756.