Docket: A-272-13
Citation: 2014
FCA 113
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CORAM:
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BLAIS C.J.
SHARLOW J.A.
STRATAS J.A.
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BETWEEN:
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JEYAKANNAN KANTHASAMY
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Appellant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
STRATAS J.A.
[1]
Mr. Kanthasamy appeals from
the judgment of the Federal Court (per Justice Kane): 2013 FC 802. The
Federal Court dismissed his application for judicial review from the Minister’s
denial of his application for humanitarian and compassionate relief under
subsection 25(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27.
[2]
This Court heard Mr.
Kanthasamy’s appeal together with the appeal in Lemus et al. v. Canada (Minister of Citizenship and Immigration), file no. A-510-12: 2014 FCA 114.
Central to both appeals is a common issue, the interpretation of subsection
25(1) of the Act, as amended by the Balanced
Refugee Reform Act, S.C. 2010, c. 8,
section 4. That amendment added new subsection 25(1.3).
[3]
These reasons determine the
common issue and affect both appeals. Accordingly, I direct that a copy of these
reasons be sent to counsel in this case and to counsel in the Lemus appeal.
These reasons should also be placed in the Lemus appeal file.
[4]
I would dismiss Mr.
Kanthasamy’s appeal. In my view, the Federal Court’s interpretation of
subsection 25(1), as amended, was substantially correct. Further, the Federal
Court did not err in its choice or application of the standard of review.
A. The basic facts and the legislative scheme
[5]
Before entering Canada, a person who is a foreign national, i.e., not a Canadian citizen or a
permanent resident, must apply to an officer for a visa or any other document
required under the Regulations: subsection 11(1) of the Act. Under subsection
11(1), the visa or document may be issued if the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of the Act.
[6]
Some foreign nationals
consider themselves unable to apply before entering Canada. Take, for example,
those who flee from their countries of origin and arrive in Canada, claiming refugee status.
[7]
This was the position in
which Mr. Kanthasamy found himself. A 17 year old Tamil from the northern
region of Sri Lanka, he arrived in Canada in 2010, claiming refugee protection
under sections 96 and 97 of the Act. These sections provide as follows:
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96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is outside each of their countries of
nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of nationality, is
outside the country of their former habitual residence and is unable or, by
reason of that fear, unwilling to return to that country.
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96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve
hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du
fait de cette crainte, ne veut y retourner.
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a
country of nationality, their country of former habitual residence, would
subject them personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every
part of that country and is not faced generally by other individuals in or
from that country,
(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
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97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut
se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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[8]
On February 18, 2011, the
Immigration and Refugee Board denied Mr. Kanthasamy’s claim for refugee
protection, finding that the Sri Lankan authorities had taken measures to
improve the situation of Tamils, and that Mr. Kanthasamy would not be at risk
upon his return to Sri Lanka. The Federal Court denied his application for
leave to judicially review that decision.
[9]
The Act recognizes that it
will be an intolerable hardship in some cases for denied refugee claimants to
return to their countries of origin and apply for a visa.
[10]
One of the ways the Act
accommodates this situation is subsection 25(1) of the Act. In particular,
under subsection 25(1), certain foreign nationals can apply for an exemption
from the requirement that they seek a visa from outside of Canada. The Minister may grant this 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.”
[11]
Subsection 25(1) of the Act
provides as follows:
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25. (1) Subject to subsection (1.2), the Minister must,
on request of a foreign national in Canada who applies for permanent resident
status and who is inadmissible — other than under section 34, 35 or 37 — or
who does not meet the requirements of this Act, and may, on request of a
foreign national outside Canada — other than a foreign national who is
inadmissible under section 34, 35 or 37 — who applies for a permanent
resident visa, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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25. (1) Sous réserve du paragraphe (1.2), le
ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le
statut de résident permanent et qui soit est interdit de territoire — sauf si
c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se
conforme pas à la présente loi, et peut, sur demande d’un étranger se
trouvant hors du Canada — sauf s’il est interdit de territoire au titre des
articles 34, 35 ou 37 — qui demande un visa de résident permanent, étudier le
cas de cet étranger; il peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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[12]
As described at the outset
of these reasons, subsection 25(1.3) has recently been added to section 25. It
instructs the Minister that, in considering a subsection 25(1) request, he “may
not consider the factors that are taken into account in the determination of
whether a person is a Convention refugee under section 96 or a person in need
of protection under subsection 97(1) but must consider elements related to the
hardships that affect the foreign national.”
[13]
Mr. Kanthasamy applied on
humanitarian and compassionate grounds under section 25 for permission to apply
in Canada for Canadian permanent resident status. As previously mentioned, Mr.
Kanthasamy had already unsuccessfully claimed refugee status – the factors
under section 96 and 97(1) had already been determined against him. In
considering Mr. Kanthasamy’s subsection 25(1) application, the Minister had to
have regard to the instructions given by subsection 25(1.3). The meaning of
subsection 25(1.3) and how it should be applied was in issue in Mr.
Kanthasamy’s case.
[14]
An Officer acting for the
Minister denied Mr. Kanthasamy’s subsection 25(1) application. Later, the
Minister agreed to reconsider the matter. Another Officer decided the
reconsideration.
[15]
The Officer handled the
reconsideration in two parts: a first part on April 25, 2012 and a second part
on July 11, 2012. The second part took into account submissions from Mr.
Kanthasamy that were not available before the first part. I shall refer to
these two parts collectively as the “decision.” Ultimately, the decision fell
for review in the Federal Court and, on appeal, is now before us.
[16]
In the reconsideration decision,
the Officer rejected Mr. Kanthasamy’s application for humanitarian and
compassionate relief under subsection 25(1). The Officer interpreted subsection
25(1) as requiring Mr. Kanthasamy to show that if he were required to return to
Sri Lanka to apply for permanent residence, he would personally and directly
suffer hardship that was unusual and undeserved, or disproportionate.
[17]
Mr. Kanthasamy applied for
judicial review of the decision in the Federal Court. Among other things, he
submitted that owing to new subsection 25(1.3) the Officer improperly excluded
from consideration certain matters.
[18]
The Federal Court reviewed
the Officer’s decision on the basis of reasonableness. It found the decision to
be reasonable. In the course of its reasons, the Federal Court interpreted
subsection 25(1.3) as requiring that the Officer consider all possible
hardships that the applicant will personally, directly and negatively
encounter, regardless of whether that evidence was previously considered in the
refugee determination process.
[19]
The Federal Court considered
that subsection 25(1.3) introduced some uncertainty concerning what exactly is
to be considered when dealing with applications for humanitarian and
compassionate grounds under subsection 25(1) of the Act. Accordingly it
certified the following question:
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?
[20]
Mr. Kanthasamy appeals to
this Court.
B. Preliminary issues
(1) The jurisdiction of this Court to
entertain this appeal
[21]
The Minister submits that
the question certified by the Federal Court is not proper because it is not
dispositive of the appeal. The question presumes that the Officer in this case
failed to assess allegations and evidence due to subsection 25(1.3). But that
was not the case. In the Minister’s view, the Officer acknowledged all of the
matters raised by Mr. Kanthasamy and assessed them through the lens of
hardship.
[22]
In my view, the certified
question is proper.
[23]
For the Federal Court to
certify a question, there must be a serious question of general importance that
transcends the interests of the parties to the litigation. The question must be
dispositive of the matter. See, generally Kunkel v. Canada (Minister of Citizenship and Immigration), 2009 FCA 347 at paragraphs 12-14; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at paragraphs 11-12.
[24]
Here, the question certified
by the Federal Court raises the issue of the interpretation of subsection
25(1.3) of the Act, a recently-enacted provision that this Court has never
interpreted. In the circumstances, this is a serious question of general
importance that transcends the interests of the parties to the litigation.
While the Federal Court happened to agree with the
Officer’s interpretation and application of the section, the question remains a live matter of public interest for this Court to
consider. Depending upon this Court’s interpretation of subsection 25(1.3) of
the Act, the Federal Court’s judgment may or may not be sustained.
[25]
The Minister also suggests
that the parties did not seriously dispute the interpretation of subsection
25(1.3) of the Act and that Mr. Kanthasamy was really just disputing the
application of the subsection to the particular facts of this case, something
that cannot be the subject of a certified question.
[26]
I do not accept that
characterization of Mr. Kanthasamy’s submissions. His vigorous contestation of
the application of section 25, including subsection 25(1.3) of the Act to the
particular facts of his case is tantamount to a submission that the Officer and
the Federal Court have adopted too strict an interpretation of the factors that
can be considered under the subsection.
[27]
The Minister, himself, has
noted in paragraph 30 of his memorandum that Mr. Kanthasamy argues in this
Court that Officers “should apply a broader test” under section 25 (including
subsection 25(1.3)) than the “unusual and undeserved or disproportionate
hardship” test. If Mr. Kanthasamy’s view of these provisions is correct, the
outcome of this appeal could be affected.
[28]
In my view, then, the
certified question is proper.
(2) The proper approach in an appeal
from judicial review
[29]
In an appeal from a judgment
of the Federal Court dismissing an application for judicial review, this Court
must consider two questions. Did the Federal Court choose the appropriate
standard of review? If so, did it apply it properly? See Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paragraphs 45-47.
(3) What is the appropriate standard of
review?
[30]
In the past year, the
Supreme Court in Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 considered the standard of review of a visa
officer’s decision under the Act. This is analogous to the case at bar: there
is no ground to distinguish what the Supreme Court said in Agraira.
However, Agraira appears to depart inexplicably
from earlier Supreme Court of Canada jurisprudence in one respect.
[31]
A decision made under the
Act is subject to judicial review only if leave is granted by the Federal Court
(subsection 72(1) of the Act). The Federal Court’s decision on the judicial
review cannot be appealed unless the Federal Court certifies a serious question
of general importance (paragraph 74(d) of the Act). This case, like Agraira
has proceeded to this Court on the basis of a certified question from the
Federal Court. In this case, as in Agraira, the certified question asks
a question that requires an interpretation of a provision of the Act.
[32]
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.
[33]
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.
[34]
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.
[35]
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.
[36]
In this Court, providing the
definitive answer to a certified question on a point of statutory
interpretation is the functional equivalent of engaging in correctness review.
But this is merely an artefact of having a certified question put to us. It is
not a comment on the standard of review of Ministers’ interpretations of
statutory provisions generally.
[37]
As for issues other than
statutory interpretation, the Federal Court adopted reasonableness review on
the outcome reached by the Officer on the record of evidence before her. In
light of the comments made in Agraira on the standard of review for that
sort of matter, I conclude that the Federal Court properly selected the
standard of review.
(4) The main issues for
this Court to analyze
[38]
In light of the foregoing
discussion, the issues to be analyzed are as follows:
(1) The statutory interpretation
issue. What is the proper interpretation of section 25 and, in particular,
recently-added subsection 25(1.3)? In particular, 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?
(2) Reasonableness review. Was the
outcome reached by the Officer on the record
of evidence before her reasonable?
C. Analysis
(1) The statutory interpretation issue
[39]
The main issue raised in the
certified question is the interpretation of subsection 25(1.3). However,
falling as it does within the humanitarian and compassionate relief section –
subsection 25(1) – the meaning of subsection 25(1.3) cannot be considered
without examining the meaning of section 25 more generally. And subsection
25(1), of course, must be seen in light of other related sections in the Act.
[40]
Seen in the wider context of
the Act, subsection 25(1) is an exceptional provision. In the words of the
Supreme Court, “an application to the Minister under s. 114(2) [now subsection
25(1)] is essentially a plea to the executive branch for special consideration
which is not even explicitly envisioned by the Act”: Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at
paragraph 64. Subsection 25(1) is not intended
to be an alternative immigration stream or an appeal mechanism for failed
asylum claimants.
[41]
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.
[42]
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. Thus, the Federal Court has upheld Officers who have
taken into account factors such as establishment
in Canada, ties to Canada, the best interests of any affected children, medical
inadequacies in the foreign country, discrimination in the foreign country that
does not amount to persecution, and other serious hazards in the foreign
country. As I shall explain, this is not a
closed list of factors that Officers may have to consider in particular cases.
[43]
In adopting “unusual and
undeserved, or disproportionate hardship” as the standard under subsection
25(1), on judicial review the Federal Court has generally adopted the
interpretation the Minister has set out in his processing manual: Citizenship
and Immigration (Canada), Inland Processing Manual, Chapter IP 5: Immigrant
Applications in Canada made on Humanitarian or Compassionate Grounds.
[44]
Relevant portions of the
Minister’s processing manual are as follows:
5.10. The assessment of hardship
The assessment of hardship in an H&C application is a
means by which CIC decision-makers determine whether there are sufficient
H&C grounds to justify granting the requested exemption(s).
The criterion of "unusual, undeserved or
disproportionate hardship" has been adopted by the Federal Court in its
decisions on Subsection 25(1), which means that these terms are more than mere
guidelines. [citation omitted]
In many cases the hardship test will revolve around the
requirement in A11 to apply for a permanent residence visa before entering Canada. In other words, would it be a hardship for the applicant to leave Canada in order to apply abroad.
Applicants may, however, request exemptions from other
requirements of the Act and Regulations. In such cases, the test
is whether it would be a hardship for the applicant if the requested exemption
is not granted.
Individual H&C factors put forward by the applicant
should not be considered in isolation in a determination of the hardship that
an applicant would face; rather, hardship is determined as a result of a global
assessment of H&C considerations put forth by the applicant. In other
words, hardship is assessed by weighing together all of the H&C considerations
submitted by the applicant. Hardship must be unusual and undeserved or
disproportionate as described below:
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Unusual
and undeserved
Hardship
•
The hardship faced by the
applicant
(if they were not granted the requested
exemption) must be, in most cases, unusual. In other words, a hardship not
anticipated or addressed by the Act or Regulations; and
• The hardship faced by the applicant (if they were not
granted the requested exemption) must be undeserved so in most cases, the
result of circumstances beyond the person’s control.
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Disproportionate
hardship
•
Sufficient humanitarian and compassionate grounds may also exist in cases that do not meet the “unusual and
undeserved” criteria but where the hardship of not being granted the
requested exemption(s)
would have an unreasonable impact on the applicant due to their personal circumstances.
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5.11. Factors to consider in assessment of hardship
Subsection A25(1) provides the flexibility to grant
exemptions to overcome the requirement of obtaining a permanent residence visa
from abroad, to overcome class eligibility requirements and/or
inadmissibilities, on humanitarian and compassionate grounds.
Officers must assess the hardship that would befall the
applicant should the requested exemption not be granted.
Applicants may base their requests for H&C
consideration on any number of factors including, but not limited to:
• establishment in Canada;
• ties to Canada;
• the best interests of
any children affected by their application;
• factors in their country
of origin (this includes but is not limited to: Medical inadequacies,
discrimination that does not amount to persecution, harassment or other
hardships that are not described in A96 and A97);
• health considerations;
• family violence
considerations;
• consequences of the
separation of relatives;
• inability to leave Canada has led to establishment; and/or
• any other relevant
factor they wish to have considered not related to A96 and A97.
[45]
I note that this Court and
the Supreme Court have never confirmed the “unusual and undeserved, or
disproportionate hardship” test adopted by the Federal Court under subsection
25(1), nor has it commented on the above-mentioned passages from the Minister’s
processing manual.
[46]
This Court and the Supreme
Court have set out the unusual and undeserved, or disproportionate hardship test,
but only in the context of cases where the parties agreed on the test or the
test was not seriously contested: see, e.g., Baker v. Canada
(Minister of Citizenship and Immigration), supra at paragraph 17; Legault
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4
F.C. 358 at paragraph 23; Hinzman v. Canada (Minister of Citizenship and
Immigration), 2010 FCA 177 at paragraph 28; Hawthorne v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555
at paragraphs 9 and 30.
[47]
While in Baker the
Supreme Court did not definitively rule on the meaning of subsection 25(1) in
the case before it, it is fair to say that its reasoning in the case proceeded
on the assumption that unusual and undeserved, or disproportionate hardship was
the appropriate standard to be applied under subsection 25(1). Absent any
further consideration by the Supreme Court, I find that that this is the
appropriate standard to be applied under subsection 25(1). It expresses in a
concise way the sort of exceptional considerations that would warrant the
granting of such relief within the scheme of the Act.
[48]
The Federal Court’s cases
underscore that unusual and undeserved, or disproportionate hardship must
affect the applicant personally and directly. Applicants under subsection
25(1) must show a link between the evidence of hardship and their individual
situations. It is not enough just to point to hardship without establishing
that link: see, e.g., Lalane v. Canada (Minister of Citizenship and
Immigration), 2009 FC 6 at paragraph 1.
[49]
This must be so. Subsection
25(1) requires that one “examine the circumstances concerning the foreign
national” and the foreign national may get relief if “it is justified by
humanitarian and compassionate considerations relating to the foreign
national.” Subsection 25(1.3) emphasizes that the examination under section 25
involves “elements related to the hardships that affect the foreign national.”
[50]
Before leaving the
interpretation of subsection 25(1) of the Act, it is necessary to say a few
words about the meaning of “unusual and undeserved, or disproportionate
hardship.” In my view, the decided cases show that the factors set out in
section 5.11 of the processing manual, above, are a reasonable enumeration of
the types of matters that an Officer must consider when assessing an
application for humanitarian and compassionate relief under subsection 25(1) of
the Act. They encompass the sorts of consequences that, depending on the
particular facts of particular cases, might meet the high standard of hardship
associated with leaving Canada, associated with arriving and staying in the
foreign country, or both.
[51]
That being said, I wish to
caution against Officers applying the processing manual and, in particular, the
factors listed in section 5.11 of the processing manual as if they describe a
closed list of circumstances.
[52]
The processing manual is an
administrative guideline, nothing more. Administrative guidelines are
desirable when dealing with a provision such as this, as they promote
consistency in decision-making: Hawthorne, supra; Eng v. Canada (Minister of Citizenship and Immigration), 2011 FC 596. This manual goes some
way toward shedding light on the meaning of “unusual and undeserved, or
disproportionate hardship.” Indeed, the Federal Court regularly upholds
Officers’ determinations that are based on a sensitive consideration of these
factors that are live on the facts before them.
[53]
However, the processing
manual is not law: administrative policy statements are only a source of
guidance and in no way amend the provisions of the Act or the Regulations (see Maple
Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2). It would be
reviewable error for an Officer to see the processing manual as presenting a
closed list of factors to consider and, in that way, to regard the processing
manual, and not subsection 25(1), as the law. That would constitute an
impermissible fettering of discretion: see, e.g., Stemijon
Investments Ltd. v. Canada (Attorney General), 2011 FCA 299. Such an
approach might leave presently unforeseeable but deserving situations out in
the cold.
[54]
I adopt the following
caution sounded in this very context by my colleague, Dawson J. (as she then
was) in Lim v. Canada (Minister of Citizenship and Immigration), 2002
FCT 956 at paragraph 4:
It
is well settled law that policy guidelines are appropriate so long as they do
not fetter the discretion of an individual officer. This is because the
exercise of discretion implies the absence of a rule dictating the result in
each case. Each case must be looked at individually, on its own merits.
Guidelines are not to be regarded as being exhaustive or definitive. Guidelines
are to be no more than a statement of general policy or a rough rule of thumb [citation
omitted].
[55]
Officers must always
scrutinize the particular facts before them and consider whether the applicant
is personally and directly suffering unusual and undeserved, or
disproportionate hardship, regardless of whether the type of hardship is
specifically mentioned in the processing manual.
[56]
Mr. Kanthasamy submitted
that the test under subsection 25(1) is broader than that set out above. He
submitted that this Court should follow two authorities that adopted such an
approach: Yhap v. Canada (Minister of Employment and Immigration), [1990]
1 F.C. 722 (T.D.) and Chirwa v. Canada (Minister of Manpower and
Immigration) (1970), 4 I.A.C. 338 (I.A.B.).
[57]
I do not agree that the
Federal Court in Yhap, read in whole, adopted a test different from that
applied by the Federal Court in other cases. In Yhap, the Court held the
scope of discretion was “wide,” which undoubtedly it is (at page 739). It
considered the processing manual to provide useful assistance to officers in
the exercise of their discretion. It warned that the officers must not take the
text of the processing manual and “consider it a limitation on the category of
humanitarian and compassionate factors” (at page 741). It warned that the
officers must direct their minds to the “humanitarian and compassionate
circumstances” and “not to a set of criteria which constitute inflexible
limitations on the discretion conferred by the Act.” In the end, it applied the
unusual and undeserved, or disproportionate hardship test.
[58]
I do acknowledge that in Yhap,
in isolated words not subsequently adopted, the Federal Court suggested that
broader reasons of public policy might come to bear. And in Chirwa, the
Board suggested that compassionate considerations are “those facts established by the evidence, which would excite in a
reasonable man in a civilized community a desire to relieve the misfortunes of
another - so long as these misfortunes ‘warrant the granting of special relief’
from the effect of the provisions of the Immigration Act.” In my
view, however, these isolated words do not correctly express the test under
subsection 25(1) of the Act.
[59]
The Federal Court has
repeatedly rejected such a broad interpretation of subsection 25(1): Reis v.
Canada (Citizenship and Immigration), 2012 FC 179; Jung v Canada (Minister of Citizenship and
Immigration), 2009 FC 678 and Aoanan
v Canada (Minister of Citizenship and Immigration), 2009 FC 734.
[60]
I
agree with these more recent decisions of the Federal Court. The isolated words
in Yhap and Chirwa take subsection 25(1) beyond permitting relief
in situations of very significant hardship (as described above) to situations
where one’s subjective view of the equities is aroused. That goes beyond the
role of subsection 25(1) within the scheme of the Act. It would take even broader
words, such as “equitable and just,” to import such an expansive standard into
subsection 25(1) of the Act.
[61]
For
completeness, I would add that a finding that an applicant has established
humanitarian and compassionate grounds under subsection 25(1) of the Act does
not automatically mean that the applicant is entitled to relief. The Minister can refuse to allow the exception
when he is of the view that public interest reasons shaped by “the general
context of Canadian laws and policies on immigration,” especially those set out
in the section 3 of the Act, supersede humanitarian and compassionate reasons.
See Legault, supra at paragraphs 17-18; Pannu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1356 at paragraph 29.
[62]
Now I turn to subsection
25(1.3) of the Act.
[63]
The Balanced Refugee Reform Act,
supra added
subsection 25(1.3) to the Act. This
new subsection provides that an officer may not consider the factors that are
taken into consideration under sections 96 and 97 of the Act, but must consider
elements related to hardships:
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25. (1.3) In
examining the request of a foreign national in Canada, the Minister may not
consider the factors that are taken into account in the determination of
whether a person is a Convention refugee under section 96 or a person in need
of protection under subsection 97(1) but must consider elements related to
the hardships that affect the foreign national.
|
25. (1.3) Le ministre, dans l’étude de la demande faite au
titre du paragraphe (1) d’un étranger se trouvant au Canada, ne tient compte
d’aucun des facteurs servant à établir la qualité de réfugié — au sens de la
Convention — aux termes de l’article 96 ou de personne à protéger au titre du
paragraphe 97(1); il tient compte, toutefois, des difficultés auxquelles
l’étranger fait face.
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[64]
Counsel submits that subsection 25(1.3)
has no application to subsection 25(1) applications because the opening words
of subsection 25(1) say “Subject to subsection (1.2),” not “subject to
subsections (1.2) and (1.3).”
[65]
This submission has no merit.
Subsection (1) requires the Minister to consider requests when made. Subsection
(1.2) acts as an exception to this, preventing the Minister from considering
subsection 25(1) applications right at the outset in certain situations, for
example where another subsection 25(1) application is pending. Subsection
(1.3) supplements subsection 25(1) by guiding the officer on how an application
should be assessed once the officer is considering the application.
[66]
What then is the role of
subsection 25(1.3)? In my view, it is not meant to change the overall standard
of subsection 25(1) which, as we have seen, is to redress situations where the
applicant will personally and directly suffer unusual and undeserved, or
disproportionate hardship.
[67]
Rather, on its express
words, subsection 25(1.3) warns that the humanitarian and compassionate relief
process is not to duplicate the processes under sections 96 and 97 of the Act.
Subsection 25(1.3) goes no further than that.
[68]
Applicants for humanitarian
and compassionate relief under subsection 25(1) have not met the thresholds for
relief under sections 96 and 97 of the Act. They have not met the risk factors
under those sections, namely the risk of
persecution, torture, or cruel and unusual treatment or punishment upon removal
in accordance with international conventions.
[69]
Subsection 25(1.3) provides,
in effect, that a humanitarian and compassionate relief application must not
duplicate the processes under sections 96 and 97 of the Act, i.e.,
assess the risk factors for the purposes of sections 96 and 97 of the Act.
[70]
But this is not to say that
the facts that were adduced in proceedings under sections 96 and 97 of the Act
are irrelevant to a humanitarian and compassionate relief application. Far
from it.
[71]
While the facts may not have
given the applicant relief under sections 96 or 97, they may nevertheless form
part of a constellation of facts that give rise to humanitarian and
compassionate grounds warranting relief under subsection 25(1).
[72]
In submissions, the Minister
accepted that this was so. She suggested that the same facts marshalled in
support of relief sought under sections 96 and 97 are relevant to section 25
but they have to be seen in light of or, in her words, “through the lens” of
the section 25 test, which is one of hardship.
[73]
In my view, that is a useful
way of describing what must happen under section 25 now that subsection 25(1.3)
has been enacted – the evidence adduced in previous proceedings under sections
96 and 97 along with whatever other evidence that applicant might wish to
adduce is admissible in subsection 25(1) proceedings. Officers, however, must
assess that evidence through the lens of the subsection 25(1) test – is the
applicant personally and directly suffering unusual and undeserved, or
disproportionate hardship?
[74]
The role of the officer, then, is to
consider the facts presented through a lens of hardship, not to undertake
another section 96 or 97 risk assessment or substitute his decision for the Refugee
Protection Division’s findings under sections 96 and 97. His task is not to
perform the same assessment of risk as is conducted under sections 96 and 97.
The officer is to look at facts relating to hardship, not factors relating to
risk.
[75]
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) but 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.
[76]
It follows that I agree with
Justice Hughes’ comments in Caliskan v. Canada (Minister of Citizenship and
Immigration), 2012 FC 1190 at paragraph 22:
I
conclude that the Guidelines got it right in construing how the amended
provisions of section 25 of IRPA are to be interpreted. We are to abandon the
old lingo and jurisprudence respecting personalized and generalized risk and
focus upon the hardship to the individual. Included within the broader
exercise in considering such hardship is consideration of “adverse country
conditions that have a direct negative impact on the applicant.”
[77]
Before leaving this section
of my reasons, I wish to address Mr. Kanthasamy’s submission that subsection
25(1.3) must be interpreted in accordance with the values expressed in section
7 of the Charter. In my view, the above interpretation – which permits a
consideration of the evidence through the lens of hardship – is consistent with
Charter values. Those who suffer disproportionate hardship in their particular
circumstances will be entitled to humanitarian and compassionate relief under
section 25 of the Act.
[78]
I would add that a refusal
under section 25 to exempt applicants from the requirements of the Act does not
take away rights. It does not refuse permanent residence to applicants.
Rather, it means they will have to comply with the usual requirements of the
Act and regulations, requirements that are constitutionally compliant.
(2) Reasonableness Review
[79]
Are there any grounds to set
aside the Officer’s decision in this case? As mentioned above, the Federal
Court properly found that the Officer’s decision is subject to reasonableness
review.
[80]
After conducting
reasonableness review, the Federal Court found that the Officer’s decision
passed muster. Our task is to assess whether that conclusion is correct.
[81]
What does reasonableness
mean? Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
describes it as a range of outcomes that is acceptable and defensible on the
facts and the law.
[82]
In later jurisprudence, the
Supreme Court said in Catalyst Paper Corp. v. North Cowichan (District),
2012 SCC 2, [2012] 1 S.C.R. 5 at paragraphs 17-19 and 23, the range of
acceptable and defensible outcomes is “flexible,” depends on “all relevant
factors” and “varies with…the nature of the impugned administrative act” and
“the particular type of decision making involved.” In Catalyst, the
range was rather broad, as the decision-maker had a “broad discretion”
involving “an array of social, economic, political and other non-legal
considerations.”
[83]
The idea of ranges of
acceptable and defensible outcomes or margins of appreciation that broaden or
narrow depending on the circumstances was recently reaffirmed in McLean v. British Columbia (Securities Commission), 2013 SCC 67 at paragraphs 37-41. See also cases
in this Court such as Canada (Attorney General) v. Abraham, 2012 FCA
266 at paragraphs 37-50, Canada (Attorney General) v. Canadian Human Rights
Commission, 2013 FCA 75 at paragraphs 13-14.
[84]
Putting the words of Baker
(“considerable deference”) into the language of post-Dunsmuir standard
of review jurisprudence, in many cases under subsection 25(1) officers will
have a broad range of acceptable and defensible outcomes available to them.
This being said, owing to the importance of the matter to applicants under
subsection 25(1), the court must be vigilant in ensuring that the outcome the officer
reaches is truly within that range: Canada (Transport, Infrastructure and
Communities) v. Farwaha, 2014 FCA 56.
[85]
In my view, the Officer
reached a decision that was defensible and acceptable on the facts before her.
Several reasons support this conclusion.
[86]
The Officer charged herself
correctly on the law. In her first set of reasons, the Officer stated that in
order to establish humanitarian and compassionate grounds Mr. Kanthasamy would
have to show that his personal circumstances are such that the hardship of
having to obtain a permanent visa from outside Canada in the normal manner
would be unusual and undeserved, or disproportionate. The Officer noted the
need to consider Mr. Kanthasamy’s personalized risk, establishment in Canada and the best interest of the child.
[87]
Mr. Kanthasamy identified a
fear of returning to Sri Lanka because he is a young Tamil male from the
northern region of the country.
[88]
The Officer noted the
presence of subsection 25(1.3). In her view, the fear identified by Mr.
Kanthasamy pertained to fear of persecution, torture, risk to life or cruel and
unusual treatment or punishment on the basis of his race or nationality. In
light of subsection 25(1.3), the Officer stated in her first set of reasons
that she did not consider “the applicant’s risk in this context,” meaning in
the context of whether he is a Convention refugee under section 96 or a person
in need of protection under section 97(1). She repeated this in her second set
of reasons. Given the interpretation of subsection 25(1.3) I have reached,
above, this was an acceptable approach.
[89]
However – again,
consistently with the approach I have described above – the Officer did
consider Mr. Kanthasamy’s fear based on being a young Tamil male from the
northern region of the country in the specific context of the subsection 25(1)
application, viewing it through the lens of hardship.
[90]
Taking both sets of reasons
together, the Officer considered a wide variety of evidence placed before her.
The Officer considered Mr. Kanthasamy’s letter of submissions, affidavit, a
USDOS report regarding the treatment of Tamils in Sri Lanka, various letters,
photographs, country documentation and a psychological assessment. Weighing
all of this evidence, the Officer decided against granting Mr. Kanthasamy’s
section 25 application for several reasons.
[91]
First, the Officer found
that “insufficient evidence was presented to satisfy [her] that the applicant
will be targeted by the security forces.” The Officer identified areas where
the evidence was lacking.
[92]
Second, the Officer found in
her first set of reasons that the targeting of young Tamil males was done for
security reasons “on suspicion that those targeted are LTTE supporters or
sympathizers,” and that “measures [were] taken by the government to improve the
security forces with respect to treatment of Tamils.” In her second set of
reasons, the Officer found that the security measures were taken “to preserve
the best interests and security of the Sri Lankan nation as a whole” and
“attempts have been made by the government to improve the situation regarding
Tamils.” In short, in her view, conditions in Sri Lanka for Tamils were
improving.
[93]
Third, Mr. Kanthasamy failed
to “provide detailed information or evidence of discrimination he suffered
while in Sri Lanka.”
[94]
Fourth, while Mr. Kanthasamy
had established himself to some extent in Canada, he did not establish himself
“to such a degree that return to Sri Lanka would amount to unusual and
undeserved or disproportionate hardship.” In saying this, the Officer took
into account that Mr. Kanthasamy had been in Canada for some time and so some
degree of establishment would be expected.
[95]
Fifth, in considering Mr.
Kanthasamy’s best interests as a child at the time of the application, the
Officer found that it would be in “his best interest to return to Sri Lanka,”
where “he would…have the care and support of his immediate family members,” and
“no evidence has been provided to satisfy [her] that they will be unable or
unwilling to assist or support him with reintegration into Sri Lankan society.”
He had spent the majority of his life in Sri Lanka and he had attended school
there. The Officer noted that Mr. Kanthasamy had failed to satisfy her that “he
would be unable to attend school or that he would be unable to obtain
employment…upon his return to Sri Lanka.”
[96]
Sixth, in the second set of
reasons the Officer examined the psychologist’s report offered in support of
Mr. Kanthasamy’s application and acknowledged the medical expertise of the
psychologist. However, the Officer assigned it little weight, noting that the
details of past experiences of Mr. Kanthasamy in the psychologist’s report were
hearsay, were based on one interview, and did not appear in any of the other
materials submitted. Overall, the Officer considered that “insufficient
evidence was presented to satisfy [her] that the applicant will be targeted by
the security forces.” In a fairly detailed passage, the Officer concluded the
following:
Although
[the psychologist’s] diagnosis is or may be sound because in some parts it
flows from the health professional’s observations, the roots of the problem
remain for the applicant to establish. The applicant may suffer from anxiety
and distress for a number of reasons, and the [psychologist] is not in a position
to say more than his conditions are consistent with their allegations. I accept
the diagnosis however, the applicant has provided insufficient evidence that he
has been or is currently in treatment regarding the aforementioned issues or
that he could not obtain treatment if required in his native Sri Lanka or that in doing so it would amount to hardship that is unusual and undeserved or
disproportionate.
[97]
Mr. Kanthasamy took
particular issue with the Officer’s findings concerning the psychologist’s report.
No doubt, that report contained statements to which weight could have been
given leading to a decision in Mr. Kanthasamy’s favour. But that is not the
test under reasonableness review. Under reasonableness review, the Officer is
allowed to make acceptable and defensible assessments as to the significance
and weight of the evidence.
[98]
Here, the Officer found the
evidence to be deserving of little weight. There is nothing in the record that
would undercut the acceptability and defensibility of that conclusion.
[99]
In conducting reasonableness
review of factual findings such as these, it is not for this Court to reweigh
the evidence. Rather, under reasonableness review, our quest is limited to
finding irrationality or arbitrariness of the sort that implicates our rule of
law jurisdiction, such as a complete failure to engage in the fact-finding
process, a failure to follow a clear statutory requirement when finding facts,
the presence of illogic or irrationality in the fact-finding process, or the
making of factual findings without any acceptable basis whatsoever: Toronto
(City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487
at paragraphs 44-45; Lester (W.W.) (1978) Ltd. v. United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740,
[1990] 3 S.C.R. 644 at page 669.
[100]
The Officer’s decision does
not suffer from any of these flaws. It is reasonable.
D. Disposition
[101]
Therefore, I would answer
the certified question as follows:
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?
Answer: 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.
[102]
Since the Officer’s decision
is reasonable, I would dismiss the appeal.
"David
Stratas"
“I agree.
Pierre Blais C.J.”
“I agree.
K. Sharlow J.A.”
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