Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration
(Federal Court) (Civil) (By Leave)
Immigration - Permanent residents.
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Immigration - Permanent residents - Humanitarian and compassionate considerations - Application by a person denied refugee protection in Canada to be allowed to apply for permanent resident status from within Canada - Application dismissed on the basis that the appellant had not demonstrated that he would be personally and directly affected by unusual and undeserved, or disproportionate hardship if required to return to his country of origin to apply for permanent residence - What is the proper interpretation of the requirements of ss. 25(1) and (1.3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?
The appellant is a 21-year old Tamil from the northern region of Sri Lanka. He arrived in Canada in 2010, when he was 17 years old, and sought refugee protection under s. 96 and s. 97 of the IRPA. The Immigration and Refugee Board refused his application. The appellant then applied for a Pre-Removal Risk Assessment, claiming risk based on his past experiences, his profile and worsening conditions for Tamils in Sri Lanka. The application was refused.
The appellant also applied to the Minister under s. 25(1) of the IRPA to be allowed to apply for permanent resident status from within Canada. Under that provision, the Minister may grant this relief if he is of the opinion that the exemption is “justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.” Subsection 25(1.3), which came into force in 2012, provides that in making such a decision, the Minister may not consider the same factors that are taken into account in determining whether a foreign national is a Convention refugee (s. 96) or a person in need of protection (s. 97). Rather, he must consider “elements related to the hardships that affect the foreign national.”
The appellant’s application was based on the fact that (1) he had established himself in Canada since arriving as a teenager, attending high school and working part-time for his uncle; (2) he was integrating into his uncle’s family and making close friends; (3) he wanted to pursue art and computer graphics after high school; (4) he suffered from moderate to severe PTSD and an adjustment disorder with mixed anxiety and depression; (5) his condition would deteriorate if he were deported to Sri Lanka; and (6) he feared returning there, as conditions had deteriorated and young northern Tamils, like himself, faced ongoing harassment and discrimination. The application was refused.
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