KANTHASAMY V. CANADA (CITIZENSHIP AND IMMIGRATION)
(2015 SCC 61
File No.: 35990; 2015: April 16; 2015: December 10)
The Supreme Court of Canada (“SCC”) decision in Jeyakannan Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] is an exciting development in Immigration and Refugee Law because it broadens the scope and definition of Humanitarian and Compassionate grounds under the Immigration and Refugee Protection Act, SC 2001, c 27, s. 25(1) [Act].
The Court note that Humanitarian and Compassionate considerations should include the Best Interests of a Child (BIOC) directly affected and should also provide fair and equitable relief.
The core issue in "Kanthasamy" was whether the decision to deny relief to a 17 year old Refugee Applicant was a reasonable exercise under Humanitarian and Compassionate discretion. At further issue was the proper role of Ministerial Guidelines used by the Immigration officers in determining whether Humanitarian and Compassionate considerations warrant relief under the Immigration and Refugee Protection Act, SC 2001, c 27, s. 25(1) [Act].
- Courtesy Canlii and www.canada.ca
(F.C., no. IMM-5514-13), Boswell, January 26, 2015; 2015 FC 99.
The applicant, a citizen of Afghanistan, was excluded from refugee protection by the RPD under Article 1F(a) because he had risen to captaincy in the Afghan Air Force (AAF) in the 1980s, a time that the AAF had committed war crimes and crimes against humanity. The applicant submitted a humanitarian and compassionate (H&C) application for several exemptions from the IRPA so he could remain in Canada with his wife and children, who had been granted refugee protection. His H&C application was refused, in part on the basis of his past complicity in war crimes and crimes against humanity.
(1) Under s. 15(b) of the IRPR, the officer was bound by the RPD’s factual findings but not by its finding of mixed law and fact that the applicant was complicit in the crimes committed by the AAF (Abdeli, Johnson).
(2) That an applicant’s refugee claim would have turned out differently because of new case law is a factor an officer should take into account in assessing the H&C application (Sabadao).
(3) Although the officer reached his own conclusion as to the applicant’s complicity, this conclusion was informed by the RPD’s finding that the applicant “knew or ought to have known” of the AAF’s crimes. This finding appears to be very much like the sort of “guilt by association” that was rejected by the Supreme Court in Ezokola. Insofar as the officer’s decision was based on the RPD’s legal conclusion that the applicant was complicit in war crimes and crimes against humanity, his decision is not defensible.
(4) This is not a case where the outcome would inevitably be the same were the matter remitted (Kamanzi).
It is not the function of this court to determine the applicant’s H&C application (Lemus).
Application was allowed.
- Courtesy Canlii and www.canada.ca
SPOUSAL SPONSORSHIP REFUSAL | GENUINENESS OF RELATIONSHIP |
(Singh, Amarjit v. M.C.I. (F.C., no. IMM-5641-02), Snider, May 4, 2006; 2006 FC 565)
- In that case the court accepted that a valid common-law relationship could exist even though the appellant was legally married to another woman in his country, but rejected that such a situation existed on the facts because there was evidence that the appellant had been sending money to his wife in India and that, if he returned to India, his wife would expect him to return to her. See also Cantin, Edmond v. M.C.I. (IAD MA4-06892), Néron, August 1, 2005 wherein the panel found that the appellant had a genuine conjugal relationship with the applicant despite the fact that the appellant was still married, provided for his wife financially, and occasionally visited her. The appellant’s wife had had Alzheimer’s disease for several years and was in an advanced vegetative state in a special care facility. The panel was critical of the visa officer’s “restrictive definition” of the concept of exclusivity given the unique and unfortunate circumstances of the case.
(Ocampo v. Canada (Citizenship and Immigration), 2019 FC 929)
- The applicant applied for permanent residence in Canada under the Spouse or Common-law Partner in Canada class. She came to Canada in July 2013 as a foreign worker, and began cohabiting with the sponsor on or about July 20, 2013. Her first application for permanent residence (“APR”) was submitted on March 6, 2016. It was refused by an officer at IRCC under s. 125(1) of the IRP Regulations on the basis that the sponsor had not declared her as his common-law spouse during the processing of his own APR or during his landing interview. On July 26, 2017 the applicant submitted a second APR under the Spouse or Common-law Partner in Canada class. In a letter dated July 27, 2018 addressed to the applicant, the officer refused the second application.(1) The respondent argues that as the applicant did not seek judicial review of the first decision, this application for judicial review is a collateral attack on the first decision. However, the text of the first decision explicitly mentions the applicant’s right to reapply for permanent residence. Furthermore, this Court has repeatedly confirmed an applicant’s right to reapply for permanent residence. (Cardona) This application is not a collateral attack on the first decision. (2) Both parties focused their submissions on whether the officer was reasonable to reject the second application on the basis that the sponsor did not declare the applicant as his common –law partner at the time his permanent residency was granted in September 2015. These submissions focus on the wrong point in time and do not aid the Court in resolving this matter. (3) Section 125(1)(d) of the Regulations outlines that a foreign national shall not be considered a member of the Spouse or Common-law Partner in Canada class if their sponsor previously made an application for permanent residence and “at the time of that application the foreign national was a non-accompanying family member of the sponsor and was not examined.” The relevant time for assessing the nature of the relationship between the applicant and the sponsor is September 2013, when the sponsor filed his application for permanent residence. This was clearly stated by Kelen, J. in Cai. (4) The officer erred by using the conclusion that the couple became common-law partners in July 2014 to reject the second application. In September 2013, when the sponsor applied for permanent residence, he was under no obligation to declare the applicant as his common-law partner as the couple did not become common-law partners until July 2014. Application allowed.
-
Federal Court of Appeal
- Sapru v. Canada (M.C.I.) 2011 FCA 35
- Colaco v. Canada (M.C.I.) 2007 FCA 282
- Deol v. Canada (M.C.I.) 2002 FCA 271
-
Federal Court
- Hassan Chauhdry v. Canada (M.C.I.) 2011 FC 22
- Rashid v. Canada (M.C.I.) 2010 FC 157
- Parmar v. Canada (M.C.I.) 2010 FC 723
- Companioni v. Canada (M.C.I.) 2009 FC 1315
- Lee v. Canada (M.C.I.) 2006 FC 1461
- Pimentel v. Canada (M.C.I.) 2004 FC 1149
- Courtesy Canlii and www.canada.ca
H&C GROUNDS | BEST INTERESTS OF A CHILD (BOIC) | ESTABLISHMENT IN CANADA | TIES TO CANADA
- The applicant is a citizen of Nepal who arrived in Canada on a temporary foreign worker visa. His wife and two children remain in Nepal. The applicant, relying on section 25 of the Immigration and Refugee Protection Act, sought an exemption on H&C grounds that would allow him to apply for permanent residence status from within Canada. The application was made in the aftermath of two earthquakes in the spring of 2015 in Nepal which were variously described in the documentary evidence placed before the Court as devastating, massive and huge. The H&C request was denied, the officer concluding that the evidence presented was insufficient to establish that applicant’s daughter’s best interests would be negatively impacted by his return to Nepal. The officer also concluded that the adverse country conditions evidence addressed general country conditions only and did not address the personal circumstances of the applicant or his family. Held: The officer did not identify an incorrect test or fetter his or her discretion in considering the application. However, the Court found that the officer erred in concluding that there was insufficient evidence to establish a link between the adverse country conditions evidence and the applicant’s personal circumstances. In an H&C context, an applicant is not required to demonstrate that the alleged hardship is not a hardship generally faced by others in the country. Rather, an applicant must demonstrate that the hardship must be personal; it need not be unique. The evidence submitted of adverse conditions, while unquestionably general in nature, would allow one to reasonably infer that any individual living in or returning to Nepal, particularly if the return was to the most severely impacted regions of the country, would suffer some hardship. Despite this, the officer did not engage in any analysis of the evidence. Rather, the officer acknowledged it and then dismissed it on the basis that it failed to demonstrate personal hardship for the applicant and his family. Application was allowed.
- Courtesy Canlii and www.canada.ca
TIMELINES | EXTENTIONS AND NATURAL JUSTICE
(Etik v. Canada (Citizenship and Immigration), 2019 FC 762)
- The Applicant, who is a citizen of Turkey, challenges a decision by the RAD to refuse his application to reopen his appeal. By way of history, his appeal before the RAD was dismissed after an oral hearing, and which decision was subsequently set aside by the Federal Court (Etik, 2018 FC 175). When the matter was returned to the RAD by the Federal Court, counsel for the Applicant assumed that the RAD would ultimately set a date for another oral hearing. However, counsel was then told that the Applicant’s appeal would be dealt with in writing and a decision on the merits was imminent. Subsequently, counsel’s application seeking an extension was returned because the RAD’s decision had been rendered the day before. The Applicant then brought an application under Rule 49 of the RAD Rules to reopen his appeal. The RAD dismissed the application to reopen based on having found there was no breach of natural justice when the appeal was dismissed. The Court held that: (1) The RAD’s reasons for denying relief were unreasonable in the sense that they fail to fully address the requirements of Rule 49 of the RAD Rules. It was not enough to consider only the role of counsel in failing to protect the Applicant’s interests (although it was the Applicant’s interests that were in jeopardy and not those of his counsel). The RAD was also required to consider the timeliness of the application to reopen and potential importance of the evidence the Applicant wished to rely upon in answer to the Minister. The right to natural justice is primarily concerned with the ability of a party to meaningfully participate in the adjudicative process including the right to present relevant evidence, which “involves is a very context-sensitive inquiry” (David Mullan, Administrative Law, Irwin Law, 2001). The RAD was required to consider whether there was a miscarriage of justice in the sense that, but for counsel’s failings, there was a reasonable probability that the result of the hearing on the merits would have been different (Nizar, 2009 FC 557). This required careful consideration of the quality and materiality of the evidence that the Applicant wished to present; and (2) Beyond the bare statement that counsel’s application for an extension of time was “too little, too late” and that the RAD is required to make a decision within 90 days of the perfection of an appeal, no apparent consideration was given to the fact that the extension request was made a mere one day late and that the RAD has some discretion under ss. 159.92(2) of the IRPR, to exceed the 90-day decision limit. Application is allowed.
- Courtesy Canlii and www.canada.ca
CBSA INTERVIEW AND THE RIGHT TO COUNSEL
-
(Canada (Citizenship and Immigration) v. Barrios, 2020 FC 29)
- The applicant was a citizen of Honduras. He was granted refugee protection and became a Permanent Resident. He acquired a Honduran passport and travelled to Honduras multiple times over a specific period. The applicant was questioned by the CBSA at the POE. He was asked to attend an interview. Following the interview, the Minister proceeded with a cessation application. The IRB excluded the evidence obtained during the encounters with the CBSA, leaving little proof to support the Minister’s application. The Board held that the applicant had been denied the Right to be Represented by a Counsel during his encounters with the CBSA. The applicant should have been given notice of his right to counsel. However, the Minister appealed the decision. (1) The RPD erred in excluding the evidence. (2) A person is generally not entitled to counsel at interviews or pre-hearing proceedings. At the time of the interview, the applicant was not subject to any proceeding before the IRB. He became a subject of a proceeding before the IRB only after the Minister's counsel commenced a cessation application. Application was allowed. No question were certified.
- Courtesy Canlii and www.canada.ca