Jeyakannan Kanthasamy Appellant v. Minister of Citizenship and Immigration, 2015 SCC 61

SUPREME COURT OF CANADA Citation: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 Date: 20151210 Docket: 35990 Between: Jeyakannan Kanthasamy Appellant and Minister of Citizenship and Immigration Respondent - and - Canadian Council for Refugees, Justice for Children and Youth, Barbra Schlifer Commemorative Clinic, Canadian Centre for Victims of Torture, Canadian Association of Refugee Lawyers and Parkdale Community Legal Services Interveners Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.

Reasons for Judgment: (paras. 1 to 61) Abella J. (McLachlin C.J. and Cromwell, Karakatsanis and Gascon JJ. concurring) Dissenting Reasons: (paras. 62 to 146) Moldaver J. (Wagner J. concurring) Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 Jeyakannan Kanthasamy Appellant v. Minister of Citizenship and Immigration Respondent and Canadian Council for Refugees,

Justice for Children and Youth, Barbra Schlifer Commemorative Clinic, Canadian Centre for Victims of Torture, Canadian Association of Refugee Lawyers and Parkdale Community Legal Services Interveners Indexed as: Kanthasamy v. Canada (Citizenship and Immigration) 2015 SCC 61 File No.: 35990. 2015: April 16; 2015: December 10.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ. on appeal from the federal court of appeal Immigration — Judicial review — Refugee claim — Humanitarian and compassionate considerations — Best interests of child — 17-year-old refugee claimant from Sri Lanka seeking humanitarian and compassionate exemption to apply for permanent residence from within Canada — Whether decision to deny relief was reasonable exercise of humanitarian and compassionate discretion — Proper role of Ministerial Guidelines used by immigration officers in determining whether humanitarian and compassionate considerations warrant relief — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25(1) .

K is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and questioning by the Sri Lankan army and police, K’s family arranged for him to travel to Canada to live with his uncle. He was 16 years old. When he arrived in Canada, he made a claim for refugee protection which was refused. K’s application for a pre-removal risk assessment was also rejected. K additionally filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act seeking to apply for permanent resident status from within Canada.

The Officer reviewing his application concluded that relief was not justified as she was not satisfied that a return to Sri Lanka would result in hardship that was unusual and undeserved or disproportionate. On judicial review, the Federal Court found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal agreed. Held (Moldaver and Wagner JJ. dissenting): The appeal should be allowed. The Officer’s decision was unreasonable and should be set aside. The matter is remitted for reconsideration.

Per McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ: 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 s. 25(1) is to offer equitable relief.

That purpose was furthered in Ministerial Guidelines intended to assist immigration officers in determining whether humanitarian and compassionate considerations warrant relief under s. 25(1). They state that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application under s. 25(1) is done by an “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 the relevant facts and factors before them.

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 s. 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.

Officers should not fetter their discretion by treating them as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion anticipated by s. 25(1) . 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 of s. 25(1) . As a result, officers should not look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds.

This has the result of using the language of “unusual and undeserved or disproportionate hardship” in a way that limits the officer’s ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision. 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 s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered. It is difficult to see how a child can be more directly affected than when he or she is the applicant.

The status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should

also influence the manner in which the child’s other circumstances are evaluated. And since children will rarely, if ever, be deserving of any hardship, the concept of unusual or undeserved hardship is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief. 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.

In this case, the Officer failed to consider K’s circumstances as a whole and took an unduly narrow approach to the 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. Instead, she took a segmented approach, assessing each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”.

The Officer’s literal obedience to those words, which do not appear anywhere in s. 25(1) , rather than looking at K’s circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion, rendering her decision unreasonable.

The Officer accepted the diagnosis in the psychological report of post-traumatic stress disorder, yet required K to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka.

Once she accepted that he had post-traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor. In her exclusive focus on whether treatment was available to K in Sri Lanka, the Officer ignored what the effect of removal from Canada would be on his mental health.

The fact that K’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition. And while the Officer did not dispute the psychological report presented, she found that the medical opinion rested mainly on hearsay because the psychologist was not a witness to the events that led to the anxiety experienced by K.

This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on hearsay. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence.

A psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada. The Officer considered the discrimination K would likely endure in Sri Lanka, but effectively concluded that in the absence of evidence from K that he would be personally targeted by discriminatory action, there was no evidence of discrimination. This approach however, failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against.

Evidence of discrimination experienced by others who share the applicant’s identity is relevant under s. 25(1) , whether or not the applicant has evidence that he or she has been personally targeted. Further, the Officer here did not appear to turn her mind to how K’s status as a child affected the evaluation of the other evidence raised in his application. This approach is inconsistent with how hardship should be uniquely addressed for children.

Moreover, by evaluating K’s best interests through the same literal approach she applied to each of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — the Officer misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that children cannot be said to be deserving of hardship. The Officer therefore avoided the requisite analysis of whether, in light of the humanitarian purpose of s. 25(1) , the evidence as a whole justified relief. This approach unduly fettered her discretion and led to its unreasonable exercise.

Per Moldaver and Wagner JJ. (dissenting): While there is agreement with much of the majority’s discussion on the meaning of the phrase “justified by humanitarian and compassionate considerations”, there is no agreement with the test proposed for granting relief under s. 25(1) . The scheme of the Immigration and Refugee Protection Act and the intention of Parliament in enacting s. 25(1) suggest that this provision is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad

interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend. Parliament recognized that cases could arise in which the strict application of the rules would not reflect Canada’s policy goals, or would lead to an arbitrary or inhumane result. That said, Parliament did not intend to provide relief on a routine basis. The test for humanitarian and compassionate (“H&C”) relief must balance the dual characteristics of stringency and flexibility and reflect the broad range of factors that may be relevant.

The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. However, the test falls down on the flexibility side as it risks excluding or diminishing the weight that some factors may deserve in deciding whether H&C relief should be granted. Section 25(1) does not limit when the relevant H&C considerations must occur; nor does it require that they be viewed only from the applicant’s perspective.

It asks only that decision makers look at H&C considerations relating to the applicant. Section 25(1) is framed in broad terms because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to enter or remain in Canada. A more comprehensive approach is therefore required.

Bearing in mind the purpose and context of s. 25(1) , and the fact that the hardship test used to date may, in some circumstances, be overly restrictive, the test for granting relief should be reframed as follows: whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be “simply unacceptable”, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted.

This test maintains the stringency of the hardship test — but does not exceed it. At the same time, it is more flexible than the hardship test. It asks decision makers to turn their minds to all of the relevant circumstances when deciding whether refusing relief would be “simply unacceptable”. This prevents decision makers from excluding relevant H&C considerations because they do not fit within the future-oriented hardship framework or because they do not involve hardship experienced solely by the applicant.

The test proposed by the majority does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable

principles, it runs the risk of watering down the stringency of the hardship test. The Officer’s decision in this case falls within the range of possible, acceptable outcomes which are defensible in respect ofthe facts and law, and was therefore reasonable. Decision making under s. 25(1) is highly discretionary and is entitled to deference. Caremust be taken not to overly dissect or parse an officer’s reasons. Rather, reasonableness review entails respectful attention to the reasonsoffered or which could be offered in support of a decision.

As is the case with every other court, this Court has no licence to find anofficer’s decision unreasonable simply because it would itself have come to a different result, lest we be accused of adopting a “do as wesay, not what we do” approach to reasonableness review. In evaluating the application, the decision maker must not segment the evidence and require that each piece either rise abovethe hardship threshold or be discounted entirely. Rather, the decision maker must fairly consider the totality of the circumstances andbase the disposition on the evidence as a whole.

Likewise, the decision maker must not fetter his or her discretion by applying theGuidelines — the “unusual and undeserved or disproportionate hardship” framework — as a strict legal test to the exclusion of all otherfactors. Taken as a whole, the Officer’s decision in this case denying K’s H&C application is transparent. She provided intelligiblereasons for concluding that K did not meet his onus of establishing, on balance, that he should be permitted to apply for permanentresidency from within Canada for H&C reasons.

She did not use the hardship framework in a way that fettered her discretion or causedher to discount relevant evidence. Her conclusions are reasonable, and well-supported by the record. While aspects of K’s situationwarrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief. It was open to the Officer to find that the record did not justify relief under s. 25(1).

While the Officer’s reasons could haveengaged more fully with the psychological evidence and while it would have been helpful had she specifically addressed the issue of theimpact of removal on K’s mental health, her failure to do so does not render her decision unreasonable. The Officer’s approach to theissue of discrimination was also not unreasonable, nor did it render her decision unreasonable. The applicant need only show that thedenial of relief would pose a certain risk of harm.

However, that risk must necessarily be a “personalized risk”, in the sense that theapplicant must fall within the category of people who, on the evidence submitted, would face that risk. When viewed in context, theOfficer’s conclusion that K had failed to provide sufficient evidence to support his statements that he will be personally discriminatedagainst simply reiterated the wording of his submissions. Lastly, the Officer’s analysis and conclusion on K’s best interests as a childwere also reasonable. It was highly relevant that K was only one day away from turning 18 when he initially applied for H&C relief.

Kwas a teenager on the verge of adulthood. On the record before her, it was open to the Officer to conclude that removal to Sri Lankawould not impair K’s best interests, because he would be returning to his immediate family rather than being separated from them. Although the Officer applied the hardship standard from the Guidelines, she did not do so in a way that fettered herdiscretion. Further, had she applied the test reframed, she would inevitably have come to the same result. The Officer’s decision to denyan exemption to K was reasonable. Cases Cited By Abella J.

Referred to: Minister of Manpower and Immigration v. Hardayal, (SCC), [1978] 1 S.C.R. 470; Chirwa v.Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; United States of America v. Johnson (2002), (ON CA), 62 O.R. (3d)327; Diarra v. Canada (Minister of Citizenship and Immigration), 2006 FC 1515; Love v. Canada (Minister of Citizenship andImmigration), 2004 FC 1569, 43 Imm. L.R. (3d) 111; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36,[2013] 2 S.C.R. 559; Rizvi v.

Canada (Minister of Citizenship and Immigration), 2009 FC 463; Irimie v. Canada (Minister of Citizenshipand Immigration) (2000), (FC), 10 Imm. L.R. 206; Flores v. Canada (Minister of Citizenship and Immigration),2013 FC 1002; Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 233; Park v. Canada (Minister ofCitizenship and Immigration), 2012 FC 528; Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Chen v. Canada(Minister of Citizenship and Immigration), 2003 FCT 447, 232 F.T.R. 118; Hawthorne v.

Canada (Minister of Citizenship andImmigration), 2002 FCA 475, [2003] 2 F.C. 555; Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 621; MapleLodge Farms Ltd. v. Canada, (SCC), [1982] 2 S.C.R. 2; Ha v. Canada (Minister of Citizenship and Immigration), 2004FCA 49, [2004] 3 F.C.R. 195; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4,[2004] 1 S.C.R. 76; Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27; A.C. v. Manitoba (Director of Child and FamilyServices), 2009 SCC 30, [2009] 2 S.C.R. 181; A.B. v.

Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567; MacGyver v.Richards (1995), (ON CA), 22 O.R. (3d) 481; Legault v. Canada (Minister of Citizenship and Immigration), 2002FCA 125, [2002] 4 F.C. 358; Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008 FC 165, 323 F.T.R. 181; Kim v.Canada (Citizenship and Immigration), 2010 FC 149, [2011] 2 F.C.R. 448; Hilewitz v. Canada (Minister of Citizenship andImmigration), 2005 SCC 57, [2005] 2 S.C.R. 706; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Chieu v.

Canada(Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Davis v. Canada (Minister of Citizenship and Immigration),2011 FC 97, 96 Imm. L.R. (3d) 267; Martinez v. Canada (Minister of Citizenship and Immigration), 2012 FC 1295, 14 Imm. L.R. (4th)66; Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633; Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Aboubacar v.

Canada (Minister ofCitizenship and Immigration), 2014 FC 714; Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC 166. By Moldaver J. (dissenting) Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Pan v. Canada (Minister of Citizenship andImmigration), 2008 FC 1303; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463; Chieu v. Canada (Minister ofCitizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; Paz v.

Canada (Minister of Citizenship and Immigration), 2009 FC 412; Legault v. Canada(Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358, leave to appeal refused, [2002] 4 S.C.R. vi; Pannu v.Canada (Minister of Citizenship and Immigration), 2006 FC 1356; Jacob v. Canada (Minister of Citizenship and Immigration), 2012 FC

1382, 423 F.T.R. 1; Kindler v. Canada (Minister of Justice), (SCC), [1991] 2 S.C.R. 779; R. v. Babos, 2014 SCC 16,[2014] 1 S.C.R. 309; Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338; Dunsmuir v. New Brunswick,2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011SCC 62, [2011] 3 S.C.R. 708; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.,2013 SCC 34, [2013] 2 S.C.R. 458. Statutes and Regulations Cited Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4.

Canadian Charter of Rights and Freedoms, s. 7. Immigration Act, R.S.C. 1952, c. 325, s. 8. Immigration Act, R.S.C. 1985, c. I-2, s. 114(2). Immigration Act, 1976, S.C. 1976-77, c. 52, s. 115(2). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 11(1), 25(1), (1.3), 62 to 71, 96, 97. Immigration and Refugee Protection Regulations, SOR/2002-227, s. 6. Immigration Appeal Board Act, S.C. 1966-67, c. 90, s. 15. Treaties and Other International Instruments Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 3(1).

Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(

F) of the 1951 Convention and/or 1967Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009. Authors Cited Brown, Donald J. M., and John M. Evans, with the assistance of Christine E. Deacon. Judicial Review of Administrative Action inCanada, vol. 3. Toronto: Carswell, 2014 (loose-leaf updated May 2015, release 1). Canada. Citizenship and Immigration Canada. “IP 5: Immigrant Applications in Canada made on Humanitarian or CompassionateGrounds”, in Inland Processing (online: http://www.cic.gc.ca). Canada. Employment and Immigration Canada. Immigration Manual. 1986. Canada. House of Commons.

House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, pp. 13267-68. Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 3, 1st Sess., 37th Parl., March 13,2001, 9:55 to 10:00. Canada. House of Commons. Standing Committee on Citizenship and Immigration. Evidence, No. 19, 3rd Sess., 40th Parl., May 27,2010, 15:40. Canada. Library of Parliament.

Parliamentary Research Branch. “Bill C-11: The Immigration and Refugee Protection Act”, LegislativeSummary LS-397E, by Jay Sinha and Margaret Young, Law and Government Division, March 26, 2001, revised January 31, 2002. Canada. Senate and House of Commons. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of theHouse of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, p. 12. Dyzenhaus, David. “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province ofAdministrative Law. Oxford: Hart, 1997, 279.

Hawkins, Freda. Canada and Immigration: Public Policy and Public Concern. Montréal: McGill-Queen’s University Press, 1972. Jones, Martin, and Sasha Baglay. Refugee Law. Toronto: Irwin Law, 2007. Liew, Jamie Chai Yun, and Donald Galloway. Immigration Law, 2nd ed. Toronto: Irwin Law, 2015. Neufeld, Heather. “Inadequacies of the Humanitarian and Compassionate Procedure for Abused Immigrant Spouses” (2009), 22 J.L. &Soc. Pol’y 177. APPEAL from a judgment of the Federal Court of Appeal (Blais C.J. and Sharlow and Stratas JJ.A.), 2014 FCA 113, [2015]1 F.C.R. 335, 459 N.R. 367, 372 D.L.R. (4th) 539, 77 Admin.

L.R. (5th) 181, 27 Imm. L.R. (4th) 1, [2014] F.C.J. No. 472 (QL), 2014CarswellNat 1435 (WL Can.), affirming a decision of Kane J., 2013 FC 802, [2014] 3 F.C.R. 438, 437 F.T.R. 120, [2013] F.C.J. No. 848(QL), 2013 CarswellNat 2568 (WL Can.), dismissing an application for judicial review. Appeal allowed, Moldaver and Wagner JJ.dissenting. Barbara Jackman and Ksenija Trahan, for the appellant.

Marianne Zoric and Kathryn Hucal , for the respondent. Jamie Liew , Jennifer Stone and Michael Bossin , for the intervener the Canadian Council for Refugees. Emily Chan and Samira Ahmed , for the intervener Justice for Children and Youth. Alyssa Manning , Laila Demirdache , Aviva Basman and Rathika Vasavithasan , for the interveners the Barbra Schlifer Commemorative Clinic and the Canadian Centre for Victims of Torture. Audrey Macklin , Joo Eun Kim and Laura Brittain , for the intervener the Canadian Association of Refugee Lawyers.

Ronald Poulton and Toni Schweitzer , for the intervener Parkdale Community Legal Services. The judgment of McLachlin C.J. and Abella, Cromwell, Karakatsanis and Gascon JJ. was delivered by [ 1 ] Abella J. — The Immigration and Refugee Protection Act [1] consists of a number of moving parts intended to work together to ensure a fair and humane immigration system for Canada. One of those parts is refugee policy.

Under s. 25(1) of the Act , the Minister has a discretion to exempt foreign nationals from the Act ’s requirements if the exemption is justified by humanitarian and compassionate considerations, including the best interests of any child directly affected. The issue in this appeal is whether a decision to deny relief under s. 25(1) to a 17-year-old applicant was a reasonable exercise of the humanitarian and compassionate discretion. In my respectful view, it was not. Background [ 2 ] Jeyakannan Kanthasamy is a Tamil from northern Sri Lanka.

In April 2010, fearing for his safety after he was subjected to detention and questioning by the army and the police, his family arranged for him to travel to Canada to live with his uncle. He was 16 years old. [ 3 ] When he arrived in Canada, he made a claim for refugee protection under ss. 96 and 97 , which permit applicants to seek refugee status based on a “well-founded” fear of persecution.

His claim was based on a fear that because he is a Tamil, the army, the Eelam People’s Democratic Party, the police, or others would arrest or harm him upon his return to Sri Lanka on suspicion that he supports the Liberation Tigers of Tamil Eelam.

The Immigration and Refugee Board refused his claim in February 2011, concluding that the authorities in Sri Lanka had taken steps to improve the situation of Tamils, and that he did not have a profile that would put him at risk if he were returned to that country. [ 4 ] In August 2011, he applied for a pre-removal risk assessment, which determines whether an applicant can safely be removed from Canada. The process assesses new risk developments arising after the refugee hearing, but is not a second refugee determination hearing: Martin Jones and Sasha Baglay, Refugee Law (2007), at p. 332.

The Officer who decided his pre-removal risk assessment found that Jeyakannan Kanthasamy was credible and accepted the evidence that young Tamils faced discrimination and harassment in Sri Lanka. But she concluded that since this treatment did not rise to the level of persecution, his application should be rejected. [ 5 ] Around the same time, he also filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act , seeking to apply for permanent resident status from within Canada. He was then 17 years old.

The denial of relief would result in his removal from Canada. [ 6 ] The Officer who reviewed the application concluded that the relief was not justified by humanitarian and compassionate considerations.

Drawing on language set out in Guidelines prepared by the Minister, the Officer said she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate”. [ 7 ] On judicial review, the Federal Court held that the test was whether the hardship was “unusual and undeserved or disproportionate” in accordance with the Guidelines, and found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal largely agreed with both the test and the result.

While it concluded that s. 25(1) was not intended to duplicate refugee proceedings, the evidence from those proceedings can nonetheless be considered for the purpose of determining whether the applicant will face “unusual and undeserved, or disproportionate hardship” if returned to the foreign state. [ 8 ] For the following reasons, I do not, with respect, agree with the conclusion that the Officer’s decision was reasonable. Analysis [ 9 ] The Immigration and Refugee Protection Act governs the admissibility, eligibility and removal of non-citizens.

Under the Act and its accompanying regulations, foreign nationals — individuals who are neither citizens nor permanent residents — seeking permanent resident status must apply for and obtain a visa before entering Canada: Immigration and Refugee Protection Act , s. 11(1); Immigration and Refugee Protection Regulations , SOR/2002-227, s. 6.

A permanent resident visa may be issued where the foreign national is not inadmissible and meets the requirements of the Act : Immigration and Refugee Protection Act , s. 11(1). [ 10 ] Section 25(1) of the Immigration and Refugee Protection Act gives the Minister discretion to exempt foreign nationals 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 . At the relevant time, s. 25(1) stated: 25.

(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 Ministeris of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking intoaccount the best interests of a child directly affected.

A brief history helps explain the purpose of humanitarian and compassionate relief under this provision. [11] Under the 1952 Immigration Act, R.S.C. 1952, c. 325, the Minister had an almost unlimited discretion to allowindividuals into Canada: Freda Hawkins, Canada and Immigration: Public Policy and Public Concern (1972), at pp. 101-3. Althoughhumanitarian and compassionate considerations were not explicitly part of the legislative scheme at the time, the Minister retained theauthority to issue permits to allow certain applicants to remain in Canada: Immigration Act (1952), s. 8.

These permits “introduced anelement of flexibility and humanitarianism into the administration of immigration law”: Minister of Manpower and Immigration v.Hardayal, (SCC), [1978] 1 S.C.R. 470, at p. 476. [12] A discretion to grant relief on the basis of humanitarian and compassionate considerations became an express part ofthe legislative scheme in the Immigration Appeal Board Act, S.C. 1966-67, c. 90, which created a quasi-judicial, independentImmigration Appeal Board.

Section 15(1) of the Immigration Appeal Board Act gave the new Board the power to stay or quash adeportation order based on “compassionate or humanitarian considerations that in the opinion of the Board warrant the granting ofspecial relief”: s. 15(1)(b)(ii). The reason for this power was explained by John Munro, then Parliamentary Secretary for the Minister ofManpower and Immigration: The law establishes general rules as to who may come to Canada and who may stay in Canada. The rules necessarily are general. Theycannot precisely accommodate all the variety of individual circumstances.

They must be capable of being tempered in their application,according to the merits of individual cases. There will sometimes be humanitarian or compassionate reasons for admitting people who,under the general rules, are inadmissible. [Emphasis added.] (House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at p. 13267) [13] The meaning of the phrase “humanitarian and compassionate considerations” was first discussed by the ImmigrationAppeal Board in the case of Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338.

The first Chair of theBoard, Janet Scott, held that humanitarian and compassionate considerations refer to “those facts, established by the evidence, whichwould excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another — so long as thesemisfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act”: p. 350. This definition wasinspired by the dictionary definition of the term “compassion”, which covers “sorrow or pity excited by the distress or misfortunes ofanother, sympathy”: Chirwa, at p. 350.

The Board acknowledged that “this definition implies an element of subjectivity”, but said therealso had to be objective evidence upon which special relief ought to be granted: Chirwa, at p. 350. [14] The Chirwa test was crafted not only to ensure the availability of compassionate relief, but also to prevent its undueoverbreadth.

As the Board said: It is clear that in enacting s. 15 (1) (b) (ii) Parliament intended to give this Court the power to mitigate the rigidity of the law in anappropriate case, but it is equally clear that Parliament did not intend s. 15 (1) (b) (ii) of the Immigration Appeal Board Act to be appliedso widely as to destroy the essentially exclusionary nature of the Immigration Act and Regulations. [p. 350] [15] In proceedings before the Special Joint Committee of the Senate and the House of Commons on Immigration Policyin 1975, Janet Scott elaborated on the importance of being able to guard against the unfairness of deportation in certain cases: . . . it was recognized that deportation might fall with much more force on some persons . . . than on others, because of their particularcircumstances, and the Board was therefore empowered to mitigate the rigidity of the law in an appropriate case.

Section 15 is ahumanitarian and equitable section, which gives the Board power to do what the legislator cannot do, that is, take account of particularcases. [Emphasis added.] (Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on ImmigrationPolicy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, at p. 12) [16] In 1977, Parliament passed comprehensive immigration reforms that introduced humanitarian and compassionatediscretion into other areas of the immigration scheme: Immigration Act, 1976, S.C. 1976-77, c. 52.

Notably, under s. 115(2), theGovernor in Council was given broad authority to facilitate the admission of “any person” on the basis of humanitarian or compassionateconsiderations: 115.

(2) The Governor in Council may by regulation exempt any person from any regulation made under subsection (1) or otherwisefacilitate the admission of any person where the Governor in Council is satisfied that the person should be exempted from suchregulation or his admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarianconsiderations. [17] The role of this discretion was explained by this Court in Baker v.

Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 S.C.R. 817: [The] words [humanitarian and compassionate considerations] and their meaning must be central in determining whether an individual[humanitarian and compassionate] decision was a reasonable exercise of the power conferred by Parliament. The legislation andregulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such

considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian andcompassionate manner. This Court has found that it is necessary for the Minister to consider [a humanitarian and compassionate] requestwhen an application is made . . . .

Similarly, when considering it, the request must be evaluated in a manner that is respectful ofhumanitarian and compassionate considerations. [Emphasis deleted; citation omitted; para. 66.] [18] More recently, in 2001, Parliament passed another set of comprehensive reforms by enacting the Immigration andRefugee Protection Act. The humanitarian and compassionate discretion previously found in s. 115(2) of the Immigration Act, 1976 wasincorporated into the new s. 25(1): United States of America v. Johnson (2002), (ON CA), 62 O.R. (3d) 327 (C.A.),at para. 47; Diarra v.

Canada (Minister of Citizenship and Immigration), 2006 FC 1515, at para. 8 ; Love v. Canada (Ministerof Citizenship and Immigration) (2004), 2004 FC 1569 , 43 Imm. L.R. (3d) 111 (F.C.), at para. 15. [19] The Legislative

Summary of Bill C-11, the Bill that led to the enactment of the Immigration and Refugee ProtectionAct, explained that s. 25 “continue[d] the important power of the Minister to override the provisions of the Act and grant permanentresidence, or an exemption from any applicable criteria or obligation under the Act, on humanitarian and compassionate grounds or forreasons of public policy”: Library of Parliament, “Bill C-11: The Immigration and Refugee Protection Act”, Legislative

Summary LS-397E, by Jay Sinha and Margaret Young, March 26, 2001, at p. 12 (footnote omitted); Agraira v. Canada (Public Safety and EmergencyPreparedness), 2013 SCC 36 , [2013] 2 S.C.R. 559, at para. 41.

The humanitarian and compassionate discretion in s. 25(1) was,therefore, like its predecessors, seen as being a flexible and responsive exception to the ordinary operation of the Act, or, in the words ofJanet Scott, a discretion “to mitigate the rigidity of the law in an appropriate case”. [20] As noted, Chirwa was decided in the context of an appeal to the Immigration Appeal Board under s. 15 of theImmigration Appeal Board Act.

Under the current legislative scheme, the Immigration Appeal Division can similarly exercise thatdiscretion for a number of statutorily defined purposes: see ss. 62 to 71 of the Immigration and Refugee Protection Act.

The exercise ofhumanitarian and compassionate discretion under s. 25(1) of the Immigration and Refugee Protection Act, on the other hand, is limited tosituations where a foreign national applies for permanent residency but is inadmissible or does not meet the requirements of theImmigration and Refugee Protection Act. [21] But as the legislative history suggests, the successive series of broadly worded “humanitarian and compassionate”provisions in various immigration statutes had a common purpose, namely, to offer equitable relief in circumstances that “would excitein a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”: Chirwa, at p. 350. [22] That purpose was furthered in Ministerial Guidelines designed to assist officers in determining whether humanitarianand compassionate considerations warrant relief under s. 25(1).

They state that the determination of whether there are sufficient groundsto justify granting a humanitarian and compassionate application under s. 25(1), is done by an “assessment of hardship”. [23] There will inevitably be some hardship associated with being required to leave Canada. This alone will not generallybe sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1): see Rizvi v. Canada (Minister of Citizenshipand Immigration), 2009 FC 463, at para. 13 ; Irimie v. Canada (Minister of Citizenship and Immigration) (2000), (FC), 10 Imm. L.R. 206 (F.C.T.D), at para. 12.

Nor was s. 25(1) intended to be an alternative immigration scheme: House ofCommons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40 (Peter MacDougall); see also Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson). [24] And, as is stated in s. 25(1.3), added to the Act in 2010 (S.C. 2010, c. 8), s. 25(1) is not meant to duplicate refugeeproceedings under s. 96 or s. 97(1), which assess whether the applicant has established a well-founded fear of persecution, risk of torture,risk to life, or risk of cruel and unusual treatment or punishment. [25] What does warrant relief will clearly vary depending on the facts and context of the case, but officers makinghumanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them:Baker, at paras. 74-75. [26] According to the Guidelines, applicants must demonstrate either “unusual and undeserved” or “disproportionate”hardship for relief under s. 25(1) to be granted. “Unusual and undeserved hardship” is defined as hardship that is “not anticipated oraddressed” by the Immigration and Refugee Protection Act or its regulations, and is “beyond the person’s control”. “Disproportionatehardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”: Citizenship and ImmigrationCanada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds” (online), s.5.10. [27] The Guidelines further explain the application of the “unusual and undeserved or disproportionate hardship”standard by setting out a non-exhaustive list of factors that may be relevant: 5.11.

Factors to consider in assessment of hardship [Section 25(1)] provides the flexibility to grant exemptions to overcome the requirement of obtaining a permanent residence visa fromabroad, 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 [humanitarian and compassionate] 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 amountto persecution, harassment or other hardships that are not described in [ss. 96 and 97]); • 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 [ss. 96 and 97]. [Emphasis added.] (Inland Processing, s. 5.11) [28] The Guidelines confirm that the humanitarian and compassionate determination under s. 25(1) is a global one, andthat relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances: . . . the officer should assess all facts in the application and decide whether a refusal to grant the request for an exemption would, morelikely than not, result in unusual and undeserved or disproportionate hardship. . . .

Individual [humanitarian and compassionate] factors put forward by the applicant should not be considered in isolation in adetermination of the hardship that an applicant would face; rather, hardship is determined as a result of a global assessment of[humanitarian and compassionate] considerations put forth by the applicant.

In other words, hardship is assessed by weighing togetherall of the [humanitarian and compassionate] considerations submitted by the applicant. [Emphasis added.] (Inland Processing, ss. 5.8 and 5.10) [29] To date, there appear to be two schools of thought on how to approach the factors to be considered in assessingwhether humanitarian and compassionate considerations apply under s. 25(1).

A number of Federal Court decisions have implicitlyrejected the language in Chirwa and have, instead, treated the Guidelines, and the words “unusual and undeserved or disproportionatehardship”, as setting out the test the applicant must meet in order to receive an exemption on the basis of humanitarian andcompassionate grounds. In Flores v. Canada (Minister of Citizenship and Immigration), 2013 FC 1002, for example, the Federal Courttalks about unusual and undeserved or disproportionate as being the “correct test” in humanitarian and compassionate applications: paras.36-39 . Similarly, in Sivagurunathan v.

Canada (Minister of Citizenship and Immigration), 2013 FC 233, the Federal Courtnoted that it was the applicant’s burden to satisfy the immigration officer that there was unusual and undeserved or disproportionatehardship: para. 13 . The Federal Court observed that “[t]his is the test” and that the disadvantages demonstrated by the applicanthad to meet this threshold: para. 13. Also see Park v. Canada (Minister of Citizenship and Immigration), 2012 FC 528, at paras. 46-47.

[30] A second approach is found in decisions which treat Chirwa less categorically, using the language in Chirwa as co-extensive with the Guidelines: see Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956, at paras. 16-17 ;Chen v. Canada (Minister of Citizenship and Immigration), 2003 FCT 447 , 232 F.T.R. 118, at para. 15.

In these decisions, theFederal Court and Federal Court of Appeal have made it clear that the Guidelines and the “unusual and undeserved or disproportionatehardship” threshold merely provide assistance to the immigration officer but that they should not be interpreted as fettering theimmigration officer’s discretion to consider factors other than those listed in the Guidelines. In Hawthorne v.

Canada (Minister ofCitizenship and Immigration), 2002 FCA 475 , [2003] 2 F.C. 555, the Federal Court of Appeal noted that the Guidelines are“not meant as ‘hard and fast’ rules” and are, rather, “an attempt to provide guidance to decision makers when they exercise theirdiscretion”: para. 9. And in Singh v.

Canada (Minister of Citizenship and Immigration), 2014 FC 621, the Federal Court noted thathumanitarian and compassionate considerations “are not limited . . . to hardship” and that the “Guidelines can only be of limited usebecause they cannot fetter the discretion given by Parliament”: paras. 10 and 12 . [31] This second approach, which seems to me to be more consistent with the goals of s. 25(1), focuses more on theequitable underlying purpose of the humanitarian and compassionate relief application process.

It sees the words in the Guidelines asbeing helpful in assessing when relief should be granted in a given case, but does not treat them as the only possible formulation of whenthere are humanitarian and compassionate grounds justifying the exercise of discretion. [32] There is no doubt, as this Court has recognized, that the Guidelines are useful in indicating what constitutes areasonable

interpretation of a given provision of the Immigration and Refugee Protection Act: Agraira, at para. 85. But as the Guidelinesthemselves acknowledge, they are “not legally binding” and are “not intended to be either exhaustive or restrictive”: Inland Processing,s. 5. Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1) discretion, but should turn “[their] mind[s] tothe specific circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans with the assistance of Christine E.Deacon, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 12-45.

They should not fetter their discretion by treatingthese informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretiongranted by s. 25(1): see Maple Lodge Farms Ltd. v. Canada, (SCC), [1982] 2 S.C.R. 2, at p. 5; Ha v. Canada (Ministerof Citizenship and Immigration), 2004 FCA 49 , [2004] 3 F.C.R. 195 (C.A.), at para. 71. [33] The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not ascreating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1).

As a result, what officers shouldnot do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual andundeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian andcompassionate considerations in a particular case.

The three adjectives should be seen as instructive but not determinative, allowing s.25(1) to respond more flexibly to the equitable goals of the provision. [34] This brings us to the fact that s. 25(1) refers to the need to take “into account the best interests of a child directlyaffected”. In Agraira, LeBel J. noted that these interests include “such matters as children’s rights, needs, and best interests; maintainingconnections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has noconnections”: para. 41.

As the Guidelines note, the “best interests” principle applies to all children under 18 years of age:[2] In an examination of the circumstances of a foreign national under [s. 25(1)], [the Immigration and Refugee Protection Act] introduces astatutory obligation to take into account the best interests of a child who is directly affected by a decision under this section. This codifiesdepartmental practice into legislation, eliminating any doubt that the interests of a child will be taken into account.

This applies tochildren under the age of 18 years as per the Convention on the Rights of the Child. (Inland Processing, s. 5.12) [35] The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on thechild’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 ,[2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, at para. 20. It must therefore be appliedin a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v.

Manitoba (Director of Child and FamilyServices), 2009 SCC 30 , [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application inthe context of a particular case. [36] Protecting children through the “best interests of the child” principle is widely understood and accepted in Canada’slegal system: A.B. v. Bragg Communications Inc., 2012 SCC 46 , [2012] 2 S.C.R. 567, at para. 17.

It means “[d]eciding what . .. appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunityfor receiving the needed care and attention”: MacGyver v. Richards (1995), (ON CA), 22 O.R. (3d) 481 (C.A.), at p.489. [37] International human rights instruments to which Canada is a signatory, including the Convention on the Rights of theChild, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71.

Article 3(1) of the Convention inparticular confirms the primacy of the best interests principle: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrativeauthorities or legislative bodies, the best interests of the child shall be a primary consideration. [38] Even before it was expressly included in s. 25(1), this Court in Baker identified the “best interests” principle as an“important” part of the evaluation of humanitarian and compassionate grounds.

As this Court said in Baker: . . . attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be causedto them by a negative decision is essential for [a humanitarian and compassionate] decision to be made in a reasonable manner. . . .

. . . for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s bestinterests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’sbest interests must always outweigh other considerations, or that there will not be other reasons for denying [a humanitarian andcompassionate] claim even when children’s interests are given this consideration.

However, where the interests of children areminimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decisionwill be unreasonable. [paras. 74-75] [39] A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by thedecision are not sufficiently considered: Baker, at para. 75. This means that decision-makers must do more than simply state that theinterests of a child have been taken into account: Hawthorne, at para. 32.

Those interests must be “well identified and defined” andexamined “with a great deal of attention” in light of all the evidence: Legault v. Canada (Minister of Citizenship and Immigration), 2002FCA 125 , [2002] 4 F.C. 358 (C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008FC 165 , 323 F.T.R. 181, at paras. 9-12. [40] Where, as here, the legislation specifically directs that the best interests of a child who is “directly affected” beconsidered, those interests are a singularly significant focus and perspective: A.C., at paras. 80-81.

The Minister’s Guidelines set outrelevant considerations for this inquiry: Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised.

Someexamples of factors that applicants may raise include but are not limited to: • the age of the child; • the level of dependency between the child and the [humanitarian and compassionate] applicant or the child and their sponsor; • the degree of the child’s establishment in Canada; • the child’s links to the country in relation to which the [humanitarian and compassionate] assessment is being considered; • the conditions of that country and the potential impact on the child; • medical issues or special needs the child may have; • the impact to the child’s education; and • matters related to the child’s gender. (Inland Processing, s. 5.12) [41] It is difficult to see how a child can be more “directly affected” than where he or she is the applicant.

In my view,the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in theanalysis, it should also influence the manner in which the child’s other circumstances are evaluated.

And since “[c]hildren will rarely, ifever, be deserving of any hardship”, the concept of “unusual and undeserved hardship” is presumptively inapplicable to the assessmentof the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9.Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warranthumanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v.

Canada (Citizenshipand Immigration), 2010 FC 149 , [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No.8: Child Asylum Claims under Articles 1(A)2 and 1(

F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees,HCR/GIP/09/08, December 22, 2009. Application [42] In considering the standard of review, this Court “step[s] into the shoes” of the reviewing court: Agraira, at para. 46.This means that the question for this Court is whether the reviewing court identified the appropriate standard of review and applied itproperly: Agraira, at para. 45.

[43] In this case, the Federal Court applied a reasonableness standard. The Federal Court of Appeal, however, concludedthat the appropriate standard of review was correctness because there was a certified question. It suggested that this Court’s approach inAgraira, where the standard of review was reasonableness despite the presence of a certified question, was at odds with the prior caselaw. I respectfully disagree. [44] The Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister ofCitizenship and Immigration), 2005 SCC 57 , [2005] 2 S.C.R. 706.

This case is not particularly helpful. It was decided beforeDunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question onthe issue of standard of review, and the parties asked that correctness be applied: para. 71. In any event, the case law from this Courtconfirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenshipand Immigration), 2002 SCC 3 , [2002] 1 S.C.R. 84, at para. 23.

As the Court said in Baker, at para. 12, the certification of aquestion of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgmentitself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importanceis relevant, but not determinative.

Despite the presence of a certified question, the appropriate standard of review is reasonableness:Baker, at para. 62. [45] Applying that standard, in my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’scircumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. Shefailed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if hewere returned to Sri Lanka.

Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was“unusual and undeserved or disproportionate”, then appeared to discount each from her final conclusion because it failed to satisfy thatthreshold. Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his circumstancesas a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of theprovision.

This had the effect of improperly restricting her discretion and rendering her decision unreasonable. [46] In discussing the effect removal would have on Jeyakannan Kanthasamy’s mental health, for example, the Officersaid she “[did] not dispute the psychological report” and “accept[ed] the diagnosis”. The report concluded that he suffered from post-traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood resulting from his experiences in Sri Lanka,and that his condition would deteriorate if he was removed from Canada.

The Officer nonetheless inexplicably discounted the report: . . . the applicant has provided insufficient evidence that he has been or is currently in treatment regarding the aforementioned issues orthat 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 andundeserved or disproportionate. [47] Having accepted the psychological diagnosis, it is unclear why the Officer would nonetheless have requiredJeyakannan Kanthasamy to adduce additional evidence about whether he did or did not seek treatment, whether any was even available,or what treatment was or was not available in Sri Lanka.

Once she accepted that he had post-traumatic stress disorder, adjustmentdisorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either inCanada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significantfactor. [48] Moreover, in her exclusive focus on whether treatment was available in Sri Lanka, the Officer ignored what theeffect of removal from Canada would be on his mental health.

As the Guidelines indicate, health considerations in addition to medicalinadequacies in the country of origin, may be relevant: Inland Processing, s. 5.11. As a result, the very fact that JeyakannanKanthasamy’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identifiedand weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition: Davis v. Canada (Minister ofCitizenship and Immigration) (2011), 2011 FC 97 , 96 Imm. L.R. (3d) 267 (F.C.); Martinez v.

Canada (Minister of Citizenshipand Immigration) (2012), 2012 FC 1295 , 14 Imm. L.R. (4th) 66 (F.C.). As previously noted, Jeyakannan Kanthasamy wasarrested, detained and beaten by the Sri Lankan police which left psychological scars.

Yet despite the clear and uncontradicted evidenceof such harm in the psychological report, in applying the “unusual and undeserved or disproportionate hardship” standard to theindividual factor of the availability of medical care in Sri Lanka — and finding that seeking such care would not meet that threshold —the Officer discounted Jeyakannan Kanthasamy’s health problems in her analysis. [49] And while the Officer did not “dispute the psychological report presented”, she found that the medical opinion“rest[ed] mainly on hearsay” because the psychologist was “not a witness of the events that led to the anxiety experienced by theapplicant”.

This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to somedegree on “hearsay”. Only rarely will a mental health professional personally witness the events for which a patient seeks professionalassistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports fromprofessionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significantevidence.

In any event, a psychologist need not be an expert on country conditions in a particular country to provide expert informationabout the probable psychological effect of removal from Canada. [50] The Officer applied a similarly constricted approach to her analysis of whether Jeyakannan Kanthasamy would facediscrimination.

The Officer took particular note of s. 25(1.3), which led her to decline to consider elements of his application that relatedto “fear of persecution, torture, risk to life or cruel and unusual treatment . . . on the basis of his race and nationality” as a young Tamil,which she suggested are part of the determination of refugee status or the pre-removal risk assessment. [51] As the Federal Court of Appeal concluded in this case, s. 25(1.3) does not prevent the admission into evidence offacts adduced in proceedings under ss. 96 and 97.

The role of the officer making a determination under s. 25(1) is to ask whether thisevidence, along with any other evidence an applicant wishes to raise, though insufficient to support a s. 96 or s. 97 claim, nonethelesssuggests that “humanitarian and compassionate considerations” warrant an exemption from the normal application of the Immigrationand Refugee Protection Act. In other words, the officer does not determine whether a well-founded fear of persecution, risk to life, andrisk of cruel and unusual treatment or punishment has been established — those determinations are made under ss. 96 and 97 — but he or

she can take the underlying facts into account in determining whether the applicant’s circumstances warrant humanitarian andcompassionate relief. [52] The Officer agreed to consider the hardship Jeyakannan Kanthasamy would likely endure as discrimination in SriLanka against young Tamil men. She also accepted evidence that there was discrimination against Tamils in Sri Lanka, particularlyagainst young Tamil men from the north, who are routinely targeted by police.

In her view, however, young Tamils are targeted onlywhere there is suspicion of ties to the Liberation Tigers of Tamil Eelam, and the government had been making efforts to improve thesituation for Tamils. She concluded that “the onus remains on the applicant to demonstrate that these country conditions would affecthim personally”. [53] This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamywould be personally targeted by discriminatory action, there was no evidence of discrimination.

With respect, the Officer’s approachfailed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that isdiscriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolatedincidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be consideredcumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v.

Canada(Minister of Citizenship and Immigration), 2011 FC 633. [54] Here, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such arisk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view ofdiscrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, (SCC), [1989]1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, (SCC),[1999] 3 S.C.R. 3; Quebec (Attorney General) v.

A, 2013 SCC 5 , [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38. [55] Even the Guidelines, expressly relying on this Court’s decision in Andrews, encourage an approach to discriminationthat does not require evidence that the applicant will be personally targeted: 5.16. [Humanitarian and compassionate] and hardship: Factors in the country of origin to be considered While [ss. 96 and 97] factors may not be considered, the decision-maker must take into account elements related to the hardships thataffect the foreign national.

Some examples of what those “hardships” may include are: . . . • discrimination which does not amount to persecution; • adverse country conditions that have a direct negative impact on the applicant. . . . Discrimination Discrimination is: A distinction based on the personal characteristics of an individual that results in some disadvantage to thatindividual.

In Andrews, [the] Court wrote: “Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics ofthe individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposedupon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escapethe charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.” (Inland Processing, s. 5.16) [56] As these passages suggest, applicants need only show that they would likely be affected by adverse conditions suchas discrimination.

Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant unders. 25(1), whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from thoseexperiences. Rennie J. persuasively explained the reasons for permitting reasonable inferences in such circumstances in Aboubacar v.Canada (Minister of Citizenship and Immigration), 2014 FC 714:

While claims for humanitarian and compassionate relief under

section 25 must be supported by evidence, there are circumstanceswhere the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicantwould face on return . . . .

This is not speculation, rather it is a reasoned inference, of a non-speculative nature, as to the hardship anindividual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis . . . . [para. 12 ] [57] Finally, even though Jeyakannan Kanthasamy’s current age makes this issue one that no longer requires intervention,the Officer’s analysis of the “best interests” factor cannot be characterized as anything other than perfunctory.

She simply stated, in asingle paragraph, that Jeyakannan Kanthasamy’s best interests lay in returning to Sri Lanka where he had grown up and where hisimmediate family continued to reside. In my view, this fails to accord with the “serious weight and consideration” this Court in Bakeridentified as essential to a proper appreciation of a child’s best interests: para. 65. [58] At no point did the Officer appear to turn her mind to how his status as a child affected the evaluation of the otherevidence raised in his application.

Instead, she atomized her evaluation of each of the other elements of his application, referring to hisstatus as a child only in isolation. In her assessment of his level of establishment in Canada, for example, she wrote: . . . a person in Canada making a claim to refugee status is afforded the tools such as a study permit that would allow one to be self-sufficient and to integrate into the Canadian community. Therefore, in the case at hand, it is expected that a certain level of establishmentwould have taken place during the applicant’s stay in Canada.

It is understandable that [Jeyakannan Kanthasamy] would like to remain inCanada and I accept that [Jeyakannan Kanthasamy’s] removal to Sri Lanka would be an inconvenience; however, I am not satisfied thathe has established himself to such a degree that return to Sri Lanka would amount to unusual and undeserved or disproportionatehardship. [Emphasis added.] Nowhere did the Officer ask whether the effect of separating Jeyakannan Kanthasamy from the people he was close to in Canada wouldbe magnified by the fact that his relationships with them developed when he was a teenager.

This approach is inconsistent with howhardship should be uniquely addressed for children. [59] Moreover, by evaluating Jeyakannan Kanthasamy’s best interests through the same literal approach she applied toeach of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — she misconstrued the bestinterests of the child analysis, most crucially disregarding the guiding admonition that “[c]hildren will rarely, if ever, be deserving of anyhardship”: Hawthorne, at para. 9. See also Williams v.

Canada (Minister of Citizenship and Immigration), 2012 FC 166, at paras. 64-67. [60] Finding that no single factor amounted to hardship that was “unusual and undeserved or disproportionate”, theOfficer ultimately concluded that humanitarian and compassionate relief was not warranted. But these three adjectives are merelydescriptive, not separate legal thresholds to be strictly construed.

Finally, the Officer not only unreasonably discounted both thepsychological 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 s. 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. [61] I would therefore allow the appeal with costs, set aside the Officer’s decision, and remit the matter forreconsideration in light of these reasons.

The reasons of Moldaver and Wagner JJ. were delivered by Moldaver J. (dissenting) — I. Overview [62] Jeyakannan Kanthasamy applied for a humanitarian and compassionate (“H&C”) exemption under s. 25(1) of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The exemption would have allowed him to apply for permanentresident status from within Canada. His application was rejected.

He seeks to overturn that decision on the grounds that the SeniorImmigration Officer (the “Officer”) applied the wrong legal test and unreasonably denied his application. [63] Section 25(1) is a safety valve that supplements the two normal streams by which foreign nationals can come toCanada permanently: the immigration classes and the refugee process. It empowers the Minister of Citizenship and Immigration (the“Minister”) to grant applicants relief from the requirements of the IRPA when such relief is justified by H&C considerations.

Properlyconstrued, it provides a flexible means of relief for applicants whose cases are exceptional and compelling. For reasons that will becomeapparent, I am of the view that in deciding whether to grant relief under s. 25(1), decision makers must determine whether, having regardto all of the circumstances, including the exceptional nature of H&C relief, decent, fair-minded Canadians would find it simplyunacceptable to deny the relief sought. [64] Measured against this standard, and bearing in mind the deference that is owed to decisions made under s. 25(1), theOfficer’s decision was reasonable.

Accordingly, I would uphold that decision and dismiss Mr. Kanthasamy’s appeal. II. Factual Background [65] Mr. Kanthasamy is a Tamil who grew up in northern Sri Lanka during that country’s civil war. Although the warended in 2009, the situation in Sri Lanka remained unstable, and young Tamil men in particular faced a heightened risk of beingsubjected to discriminatory security measures. Mr. Kanthasamy’s family feared for his safety and arranged to send him to Canada. Hearrived here using a false passport in April 2010. He was 16 years old.

A. Procedural History [ 66 ] One month following Mr. Kanthasamy’s arrival in Canada, he made a claim for refugee protection. That claim was denied in February 2011. In denying his claim, the Refugee Protection Division tribunal determined that he did not have a well-founded fear of persecution in Sri Lanka, and that removal to Sri Lanka would not subject him personally to a risk of death, torture, or cruel and unusual treatment or punishment. His application seeking leave to have this decision judicially reviewed was dismissed in May 2011. [ 67 ] In July 2011, Mr.

Kanthasamy applied under s. 25(1) to be exempted from the requirement that he apply for permanent resident status from outside Canada (the “H&C application”). His H&C application was received one day before his 18th birthday. He also applied for a Pre-Removal Risk Assessment (“PRRA”) in August 2011. [ 68 ] Both his PRRA and H&C application were denied in January 2012. In the PRRA decision, the immigration officer concluded that Mr.

Kanthasamy would not face “more than a mere possibility of persecution in Sri Lanka”, and that, on balance, he was not likely “to face a danger of torture, or a risk to life, or a risk of cruel and unusual treatment or punishment”. Mr. Kanthasamy initially sought leave for judicial review of his PRRA denial, but in March 2012, after securing an agreement from the Minister to reconsider his H&C application, he withdrew his application for leave. [ 69 ] On reconsideration, Mr. Kanthasamy’s H&C application was again denied.

Initial reasons for decision were provided in April 2012 and an addendum was released in July 2012. These two sets of reasons comprise the Officer’s decision. Mr. Kanthasamy challenged that decision by way of judicial review in the Federal Court. His application for judicial review was dismissed, as was his subsequent appeal to the Federal Court of Appeal. He now appeals with leave to this Court. B. Facts Underlying Mr. Kanthasamy’s H&C Application [ 70 ] The factual record underlying Mr.

Kanthasamy’s H&C application can be distilled into four categories: (1) his past mistreatment by Sri Lankan authorities; (2) the conditions he would face if he were removed to Sri Lanka; (3) the psychological consequences of his return to Sri Lanka; and (4) his establishment in Canada.

(1) Mistreatment by Sri Lankan Authorities [ 71 ] The evidence of past mistreatment focuses on two incidents which occurred shortly before Mr. Kanthasamy left Sri Lanka. In March 2010, he was arrested at his home and taken to an army camp in his village, where he was detained for one day. During his detention, he was held in a dark room for three to four hours. Soldiers visited him sporadically and touched him with their guns, kicked him, and threatened to kill him if he did not cooperate. The soldiers wanted Mr. Kanthasamy to identify supporters of the Liberation Tigers of Tamil Eelam (

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