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Government too restrictive in child refugee cases, Supreme Court rules

Canada's Supreme Court Justices in Ottawa on Oct. 6. The court has ordered a failed Sri Lankan asylum claimant be given another chance to apply to stay in Canada on humanitarian and compassionate grounds.

CHRIS WATTIE/REUTERS

The Supreme Court of Canada has told the Canadian government it has misread the "humanitarian and compassionate" grounds for letting failed refugee claimants stay, applying too restrictive a definition, particularly where children are involved.

"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," Justice Rosalie Abella wrote for the court's majority in the 5-2 ruling on Thursday morning.

The court set out a number of considerations for government officials: an individual's establishment in and ties to Canada; the best interests of any children affected; factors in their country of origin such as medical inadequacies and discrimination; health considerations; family violence issues and consequences of separating from relatives.

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The two judges in the minority, Justice Michael Moldaver and Justice Richard Wagner, said that while some flexibility is necessary, the court was requiring too broad and relaxed a definition, which risked creating a separate, freestanding immigration process.

At issue is a key process for determining who can stay in Canada and who must go among refugee claimants. Individuals who have been denied refugee status may ask to stay in Canada on "humanitarian and compassionate" grounds. Determining whether a case meets those grounds means that wide discretion is in the hands of government officials working for the immigration department, and ultimately in the hands of the Minister of Immigration, Refugees and Citizenship.

The ruling comes as millions of refugees from Syria are on the move toward Europe, or are jammed into refugee camps in the Middle East. Some doors to them have been opened wide – such as Canada's and Germany's – while other countries have slammed the doors shut or engaged in fevered debates over whether they should be kept out, as in the United States.

The Federal Court of Canada has said that those with "unusual and undeserved, or disproportionate hardship," meet the definition of humanitarian and compassionate grounds for staying in Canada. But a Tamil refugee claimant and intervenor groups such as the Canadian Council for Refugees argued that officials should look more broadly at the facts of a case by considering such values as human rights, protection from harm and family integrity.

"As long as Canada has had formal laws governing the admission to and exclusion or removal of persons from the country, discretion to overcome the rules has existed," lawyers for Jeyakannan Kanthasamy, a Tamil who came to Canada in 2010, at age 16, from Sri Lanka, said in a written argument filed with the Supreme Court. "While there is an expectation that the rules will be followed, immigration legislation is fundamentally concerned with the movement of people and the reality is that there will always be instances where it would be callous, cold-hearted or inhumane to turn some away even though she cannot comply with admissibility requirements."

In March, 2010, while still in Sri Lanka, Mr. Kanthasamy had been detained briefly by the Sri Lankan army, and warned to stay away from militants. Once released, he was approached by militants to join up. His father sent him to Canada to live with an uncle.

But the refugee protection division of Canada's Immigration and Refugee Board said that conditions in Sri Lanka improved for northern Tamil males in 2011, and though Tamils were still subject to discrimination and harassment, it was not severe enough to amount to persecution. The officials rejected his refugee claim.

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Mr. Kanthasamy, arguing for humanitarian and compassionate consideration, said he had become established here since arriving as a teenager, attending high school and working part time for his uncle; he suffered from post-traumatic stress and adjustment disorder with anxiety and depression, confirmed by a psychologist with expertise in working with Sri Lankan war victims. An immigration official rejected his claim, saying his best interests lay in returning to his family in Sri Lanka.

The previous Conservative government told the Supreme Court that this was an apt result. It said the intention behind the humanitarian and compassionate provision was to give the government flexibility to approve compelling and exceptional cases. "It was never intended to be an alternative immigration stream or an appeal mechanism for failed asylum claimants." It said the disproportionate hardship test was appropriate.

The court ordered that Mr. Kanthasamy be given another chance to apply to stay on humanitarian and compassionate grounds.

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