By a 5-2 margin, the high court on Thursday reversed a decision by the Federal Court of Appeal that upheld the rejection of Jeyakannan Kanthasamy’s claim that he would suffer serious hardship if he returned to his homeland.
The ruling offers new guidance to officials on interpreting a section of the Immigration and Refugee Protection Act that allows for refugee claims to be granted on “humanitarian and compassionate” grounds.
Justice Rosalie Abella wrote that the immigration officer who rejected Kanthasamy’s claim took an “unduly narrow” approach to his case and ordered that the matter be reheard.
Abella said the officer “required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported … it reflects an anemic view of discrimination that this court largely eschewed decades ago.”
Kanthasamy was 16 years old when his family sent him to Canada in 2010 after the Sri Lankan army and police detained and threatened him on separate occasions.
It was one year after Sri Lanka’s long civil war ended with a massive offensive by government forces on Tamil-held areas of the country that has since sparked a United Nations investigation of allegations of war crimes against both sides of the conflict.
In March 2010, Kanthasamy was arrested in his home, taken to an army camp and detained for a day. He was held in a dark room for three to four hours, where soldiers visited him sporadically, kicked him and threatened to kill him if he did not identify supporters of the Tamil Tigers, a banned terrorist group.
In April 2010, he was arrested by police and detained for a day. He was threatened, physically assaulted and interrogated.
In Abella’s view, the immigration officer “failed to give sufficiently serious consideration to his youth, mental health and evidence he would suffer discrimination if he were returned to Sri Lanka.”
In a dissenting opinion, Justice Michael Moldaver said the immigration officer made a reasonable analysis of the application.
Janet Dench, the executive director of the Canadian Council for Refugees, said the ruling is significant because it directs immigration officers to seriously consider the rights of children and mental health issues when deciding whether to grant a claim on compassionate grounds.
“We have often discussed within our organization frustrations with decisions on humanitarian grounds where the best interests of the child are very summarily considered” and then dismissed, she said.
The persecution of ethnic Tamils by government forces has been well documented, including in the most recent Human Rights Watch report that said “the government’s treatment of Tamils forcibly returned to Sri Lanka after being denied asylum overseas continues to be a significant concern.”
In 2013, then-prime minister Stephen Harper boycotted the Commonwealth leaders’ summit in Sri Lanka because he had concerns about the human rights abuses being committed by government forces against the Tamil population. (CTV)