Last Updated on January 24, 2019
The Supreme Court of Canada has made it easier for failed refugee claimants to remain in Canada, but two dissenting judges said the court was potentially creating a separate stream of immigrants never intended by Parliament.
A particular case in question involves Jeyakannan Kanthasamy, a Tamil boy who came to Canada at the age of 16 from Sri Lanka and was rejected as a refugee. Mr. Kanthasamy had been arrested twice by the Sri Lankan army on suspicion of being a Tamil militant, and his father sent him to an uncle in Canada, fearing he would be arrested again, or that militants would try to recruit him. The boy suffered from post-traumatic stress disorder and was well-established in Canada, with relatives, friends and schooling.
The right to apply to stay in Canada on “humanitarian and compassionate” grounds has been an explicit part of immigration law since 1977, and immigration ministers had the discretion for decades before that to invoke similar considerations. However, the Supreme Court ruled that the Canadian government had strayed from the law’s intention of giving humanitarian and compassionate help to people like, the Tamil youth.
It is expected the judgment will impact many individuals who ask to remain under humanitarian and compassionate grounds.
The Immigration and Refugee Board rejected Mr. Kanthasamy’s refugee claim in 2011, saying the discrimination against Tamils in northern Sri Lanka did not rise to the level of persecution. Mr. Kanthasamy then asked for humanitarian consideration, relying in part on a psychologist’s report confirming a diagnosis of post-traumatic stress disorder because of his experiences in Sri Lanka.
But an immigration official said that report was hearsay, as the psychologist had not witnessed the events that caused the disorder. The immigration official also said Mr. Kanthasamy had cited no evidence on what treatment was available for him in Sri Lanka.
The Supreme Court majority said the official’s approach was flawed: Most psychologists have not witnessed the events affecting their patients, and the worsening of Mr. Kanthasamy’s mental health in the event of deportation had to be considered, rather than simply what treatment was available in Sri Lanka. His best interests as a child were also critical, the majority said.
Justice Rosalie Abella said the immigration official who rejected Mr. Kanthasamy’s request for humanitarian consideration did not look at his circumstances in its entirety as Canadian law requires.
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