Kanthasamy v Canada [Humanitarian & Compassionate Application by a Child]
Court: Supreme Court of Canada, 2015
JFCY intervened in this case at the Supreme Court of Canada.
At the time of the hearing, the appellant was a 21-year old Tamil from the northern region of Sri Lanka. He arrived in Canada in 2010, when he was still a minor, he sought refugee protection under s. 96 and s. 97 of the IRPA. The Immigration and Refugee Board refused his application. Following this refusal and before his 18th birthday, the appellant submitted an application to the Minister for relief under s. 25(1) of the IRPA. Under that provision, the Minister may grant relief if he is of the opinion that the exemption is “justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.”
The Ministerial Guidelines intended to assist Immigration Officers in their decision-making states that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate (H&C) application under s. 25(1) is done by an “assessment of hardship” and that applicants must demonstrate either “unusual and undeserved or disproportionate” hardship for relief under s. 25(1) to be granted.
The primary issue before the Supreme Court was how these provisions should be applied and whether the considerations differ when the primary and sole applicant is a child.
JFCY’s intervention focused on the children’s rights perspective, arguing that when the principal applicant for an H&C is a child on their own, the Best Interests of the Child is the primary consideration to be taken into account.
The Supreme Court held that the Ministerial Guidelines are designed as an interpretative aid to assist immigration officers in their decision making, did not create three distinct legal thresholds of “unusual and underserved or disproportionate hardship,” the decision making process must be unfettered; and the purpose of H&C provisions is to offer equitable relief in reasonable circumstances.
With respect child applicants, the Court confirmed that the decision maker is required to be “alert, alive and sensitive” to the Best Interests of the Child (BIOC) and held that the BIOC must be treated as the primary consideration in the analysis, the BIOC must influence the manner in which all of the child’s circumstances are evaluated, and that children will rarely, if ever, be deserving of any hardship.
The Court also held that 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.
For many children faced with the daunting reality of having fled their home countries and coming to Canada, this decision should at least ensure that their H&C applications are considered through a lens that focuses on them as children.
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