The decision of the Officer was overturned at the SCC level and remitted back for reconsideration. This decision was upheld at the Federal Court of Appeal (for a commentary on this case, see here). The Federal Court also found the Officer’s decision to deny relief was reasonable. Upon judicial review, the Federal Court upheld the decision of the Officer in specifying that the test was indeed whether the hardship was “unusual and deserved or disproportionate” and that Mr. Kanthasamy would not be at risk if he were to be deported. Kanthasamy’s claim and concluded that the government of Sri Lanka had tried to improve the situation of Tamils, such that Mr. The Immigration and Refugee Board further denied Mr. Using the guidelines prepared by the Minister, the Officer noted that she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate” (at para 6). The Officer who reviewed the application concluded that humanitarian and compassionate considerations were not present to justify granting relief. This provision gives the Minister the discretion to exempt individuals who are not Canadian citizens or permanent residents from the ordinary requirements of the Act under humanitarian and compassionate grounds, including when it would be in the best interest of a child affected, in this case, the 17-year-old applicant. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, 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. The provision of the Act in question states:Ģ5. He had also attempted to apply for permanent residence from inside Canada. Kanthasamy’s application for humanitarian and compassionate relief under s. However, the Canadian government and courts have previously taken a narrow approach to this issue, towing the Sri Lankan government’s official stance that the situation has improved for Tamils in that country.Īs a result, Mr. The persecution faced by Tamils in Sri Lanka by the Sinhalese majority is well documented, with reports that tension and “recriminations” continue to exist. There was evidence that he had been previously detained and subjected to state persecution in Sri Lanka. Kanthasamy was fearful that he would be arrested upon return to Sri Lanka and suspected of supporting the Liberation Tigers of Tamil Eelam.

96 and 97 the Act provisions concerning a well-founded fear of persecution in one’s home country. Kanthasamy, a Tamil from Sri Lanka, applied for refugee protection under ss. At further issue was the proper role of Ministerial Guidelines used by immigration officers in determining whether humanitarian and compassionate considerations warrant relief under the Act. Kanthasamy himself-but should also provide equitable relief.Īt issue in Kanthasamy was whether the decision to deny relief to a 17-year-old refugee applicant was a reasonable exercise of humanitarian and compassionate discretion. Not only did the Court note that humanitarian and compassionate considerations should include the best interests of a child directly affected-in this case Mr. The recent Supreme Court of Canada (“SCC”) decision in Jeyakannan Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 is an exciting and welcome development in immigration and refugee law as it broadens the scope and definition of humanitarian and compassionate grounds under the Immigration and Refugee Protection Act, SC 2001, c 27, s.

Kanthasamy exquice mr bgm