The first Spanish Newspaper for the regions of Hamilton,
Niagara, Halton, and Peel in Ontario, Canada.
A Christmas Present
January, 2016.- In its recent decision in Kanthasamy v. Minister of Citizenship and Immigration, the Supreme Court of Canada has given foreign nationals living in Canada a great gift. They have lifted the restrictions on the humanitarian and compassionate program that had made it almost impossible to succeed.
A humanitarian application is usually used by persons in Canada who do not have status, to try to obtain permanent residency. To be successful, the person must demonstrate deep establishment ties to Canada which include a stable work and financial history, strong links to the community through friends, volunteer work and family, and that their children’s interests favour remaining in Canada. In addition, any hardship faced upon return to the home country is also a factor. However, over the last 6 to 8 years, the humanitarian program had lost its compassion. Instead of being a test of who is most in need, it became a test of whether or not the person was at fault for being without status, had suffered in an unusual way and whether they would suffer an extreme form of hardship if deported. Very high standards indeed, and few could meet it.
This has all now changed
In a 5 to 2 decision, the majority of the Supreme Court held that in rigidly adhering to this standard, immigration officers fettered their discretion and rendered unreasonable decisions. The humanitarian section of the Immigration and Refugee Protection Act (IRPA), s. 25, that allows for these decisions, uses only the words humanitarian and compassionate. Canada immigration had imported the requirement of hardship into the section, a hardship that is unusual, undeserved or disproportionate. The law didn’t say that, so the court said that it was an error to treat this standard as though it were the law. Instead, in interpreting s. 25 immigration officers were to view the decision through a more equitable lens, one that starts with compassion as its focus. That is a big change! To help understand what compassion means the Court referred to a test used in court hearings, called the Chirwa standard. This standard refers to “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 Immigration Act.” Relieving the misfortunes of another! This sounds more like compassion.
In rejecting the approach used by Canada Immigration, and in re-orienting the program under the rubric of compassion, the Supreme Court then reviewed the findings of the immigration officer in the case. The Court said that when the immigration officer considered, as a factor against the applicant, the fact that he could receive treatment for post-traumatic stress disorder in his country when deportation would exacerbate his condition, the officer made an unreasonable finding. Exercising compassion is more than recognizing the possibility of treatment. It is also taking action to avoid the need for it. The immigration officer also rejected a report from a doctor in Canada regarding the applicant’s mental health and the causes of his PTSD. The report was based on hearsay, the officer concluded, on what the patient had told the doctor. The Court decided that this approach was also wrong. When are doctors ever present during the events giving rise to the trauma, quarried the judges?
In respect to both of these factual findings by the immigration officer, a rigid approach had forced his hand to unreasonableness. That hand was meant to be open and welcoming and compassionate. Now it will be.