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Child Refugees and Canada’s Immigration Laws

  • September 15, 2016
  • Robert Israel Blanshay and Brock B. Jones

In Kanthasamy v. Canada (Citizenship and Immigration) [2015] 3 SCR 909, the Supreme Court of Canada addressed the plight of a child refugee applicant originally from Sri Lanka. The decision has been heralded as ground-breaking, as it highlighted the importance of immigration officers appreciating the particular hardships faced by children who are fleeing tragedy in their home nations. In this article, authors Robert Blanshay and Brock Jones review the decision and its significance, and speak with several counsel who acted for interveners at the Supreme Court about their thoughts on the decision and how to improve advocacy for child refugee claimants in the future.

Factual Background

At the time of hearing, the appellant was a 21-year-old Tamil from the northern region of Sri Lanka. He arrived in Canada in 2010, when he was 17 years old, and sought refugee protection under s. 96 and s. 97 of the IRPA. The Immigration and Refugee Board refused his application.

The appellant also applied to the Minister under s. 25(1) of the IRPA when he was still 17. Under that provision, 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.”

Ministerial Guidelines intended to assist Immigration Officers 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”. The Guidelines state that applicants must demonstrate either “unusual and undeserved or disproportionate” hardship for relief under s. 25(1) to be granted.

Clarifying the Law

The primary issue before the Supreme Court was how these provisions should be applied and whether the considerations differ when the applicant is a child. The Court had not considered the “H&C” immigration category in roughly 18-years, since its last decision in Baker v. Canada (Minister of Employment and Immigration), 2 SCR 817, in July 1999.

The “H&C” category is unique to Canada. It provides an avenue to Permanent Resident (PR) status based purely upon a humanitarian approach, commensurate with Canada’s overall policy and goal of providing humanitarian relief to those in need, whether in Canada, or abroad.

The H&C category has been, and remains, an immigration category relied upon by foreign nationals facing a myriad of unique and personalized circumstances, who fail to meet the criterion for all remaining PR categories.

Put simply, within the H&C category, applicants must first seek a Visa exemption, demonstrating “why” they ought to be permitted to apply for PR status from within Canada, versus returning to their home country and applying from abroad. Applicants had to well demonstrate that departing Canada and returning to their home country would lead to “unusual, undeserved or disproportionate hardship” as prescribed within the “Ministerial Guidelines” (the Guidelines) relied upon by immigration decision-makers. 

Numerous Federal Court decisions had proclaimed the “unusual, undeserved, or disproportionate hardship” language as the proper and strictly applied legal “test” for H&C considerations.

The Supreme Court held that the Guidelines are designed as an interpretative aid to assist immigration officers in their decision making and not to create three legal thresholds of “unusual and underserved or disproportionate hardship” and that when an applicant is a child, the best interests of the child must be treated as the primary consideration in the analysis. Furthermore, the best interests of the child must influence the manner in which all the child’s circumstances are evaluated. The Court also expressly held that children will rarely, if ever, be deserving of any hardship. 

Reaction to the Decision Has Been Overwhelmingly Positive

Various groups intervened at the Supreme Court and spoke to JUST. about the decision.

Emily Chan, counsel for Justice for Children and Youth, notes that the decision “represents an important milestone in the development of the legal rights for children and youth in this country.” Because children may experience greater hardship than adults faced with a comparable situation, circumstances that may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief.

David Matas, counsel for the Canadian Council for Refugees, adds that the decision doesn’t necessarily apply to children only – the revised or clarified test has application beyond that, and has reshaped the consideration of humanitarian and compassionate grounds more broadly.

Toni Schweitzer, counsel for Parkdale Community Legal Services, has already seen the immediate effect and benefit of the decision to many of her clients. And she agrees that the decision may have implications beyond child applicants, as it should apply to any request on humanitarian and compassionate grounds. Fundamentally, a compassionate perspective should be called for from immigration officers.

What Counsel Should Remember

Children are inherently vulnerable. There is nothing more heartbreaking than seeing news stories, almost every day, about children and their families attempting to flee various parts of the world in search of a better life in Canada.

Emily Chan provides this final bit of advice for counsel who advocate on behalf of children in this area:

“Pay attention to the circumstances of the particular child you are representing. Get good evidence – both directly from the child and from supporting sources – to bolster your application. Evidence about not only your client’s particular circumstances but the country conditions will be crucial. Ensure you can advocate exactly why it is in the child’s best interests to have the application granted.”

Kanthasamy serves as yet another powerful reminder that the unique circumstances of our most vulnerable members – children – are to be given full consideration in hearings that affect their interests. Counsel who advocate on behalf of children should bear this in mind, and continue to give them a voice when they need it most.

About the Authors

Robert BlanshayRobert Blanshay is a certified specialist in immigration law. He has a large and diverse practice which involves individual clients, corporate clients, as well as NGOs. Called to the Ontario Bar in 1992, Robert has focused his practice exclusively on immigration law, including extensive litigation before the Federal Court of Canada for over 25 years.

Robert is the 2016-2017 vice-chair of the OBA Citizenship & Immigration Law Section.

Brock JonesBrock Jones has been a Crown counsel for more than 10 years, with a focus on criminal law, youth criminal justice, and constitutional law. He is an Adjunct Professor of Law with the University of Toronto’s Faculty of Law.

In addition to his position as a member of the JUST. Editorial Board, Brock is co vice-chair of the OBA Criminal Justice Section and a member of the OBA Child & Youth Law Section.

The authors wish to thank Aleksandar Jeremić of Anchor Law for assisting with this article.

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