Thursday, March 16, 2017

February 2017 pro-immigrant cases

  • Singh v. Canada (Citizenship and Immigration), 2017 FC 132; http://canlii.ca/t/h03cj; February 2, 2017; Barnes J.; refusal of application under Federal Skilled Worker Express Entry Program
  • Aslanyan v. Canada (Citizenship and Immigration), 2017 FC 133; http://canlii.ca/t/gxbpq; February 3, 2017; Strickland J.; refusal of application for an open work permit
  • Toribio v. Canada (Citizenship and Immigration), 2017 FC 145; http://canlii.ca/t/gxf8g; February 7, 2017; Heneghan J.; finding by an officer of misrepresentation
  • Vigneswaralingam v. Canada (Citizenship and Immigration), 2017 FC 151; http://canlii.ca/t/gxf8c; February 8, 2017; Simpson J.; IAD refusal to grant a stay of removal
  • Mandric v. Canada (Citizenship and Immigration), 2017 FC 162; http://canlii.ca/t/gxfwv; February 9, 2017; Brown J.. refusal of ARC
  • Wong v. Canada (Attorney General), 2017 FC 152; http://canlii.ca/t/gxlsd; February 10, 2017; Southcott J.; refusal to issue passport
  • Mukilankoy c. Canada (Citoyenneté et Immigration), 2017 CF 161; http://canlii.ca/t/gxhhn; February 13, 2017; Locke J.; refusal of overseas H&C
  • Al Khayyat v. Canada (Citizenship and Immigration), 2017 FC 175; http://canlii.ca/t/gxhhl; February 13, 2017; Strickland J.; ID finding of inadmissibility for commission of war crimes/crimes against humanity
  • Punia v. Canada (Citizenship and Immigration), 2017 FC 184; http://canlii.ca/t/gxj8r; February 14, 2017; Russell J.; refusals of TRVs
  • Chowdhury v. Canada (Citizenship and Immigration), 2017 FC 189; http://canlii.ca/t/h03tt; February 15, 2017; Southcott J.; ID finding of inadmissibility for membership in an impugned organization
  • Thanabalasingham v. Canada (Attorney General), 2017 FC 190; http://canlii.ca/t/gxpxc; February 15, 2017; Russell J.; refusal of Record Suspension application
  • Chamorro v. Canada (Citizenship and Immigration), 2017 FC 192; http://canlii.ca/t/gxlsf; February 15, 2017; Shore J.; RAD refusal of refugee appeal
  • Orbizo v. Canada (Immigration, Refugees and Citizenship), 2017 FC 203; http://canlii.ca/t/gxn0d; February 20, 2017; Strickland J.; refusal of H&C
  • Bajwa v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 202; http://canlii.ca/t/gxn0c; February 21, 2017; Russell J.; refusals of work permit extensions
  • Ali v. Canada (Citizenship and Immigration), 2017 FC 213; http://canlii.ca/t/h03v2; February 22, 2017; Heneghan J.; RPD refusal of refugee claim
  • Nagornyak v. Canada (Citizenship and Immigration), 2017 FC 215; http://canlii.ca/t/h1qtg; February 22, 2017; Strickland J.; RPD refusal of refugee claim
  • Abakumova v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 218; http://canlii.ca/t/h03ck; February 23, 2017; Simpson J.; RAD refusal of refugee appeal
  • Haynes v. Canada (Citizenship and Immigration), 2017 FC 220; http://canlii.ca/t/h03cm; February 23, 2017; Simpson J.; RAD refusal of refugee appeal
  • Zhong v. Canada (Citizenship and Immigration), 2017 FC 223; http://canlii.ca/t/h067h; February 23, 2017; Boswell J.; refusal of H&C on reconsideration
  • Lhundup v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 224; http://canlii.ca/t/h067g; February 23, 2017; Heneghan J.; refusal of an overseas family member of a protected person (non-genuine marriage)
  • Mpoyi v. Canada (Citizenship and Immigration), 2017 FC 228; http://canlii.ca/t/h03ch; February 23, 2017; Simpson J.; refusal of H&C
  • Tsikaradzei v. Canada (Citizenship and Immigration), 2017 FC 230; http://canlii.ca/t/h067q; February 23, 2017; Boswell J.; RPD refusal of refugee claim
  • Tine c. Canada (Citoyenneté et Immigration), 2017 CF 231; http://canlii.ca/t/h03cf; February 24, 2017; Martineau J.; refusal of H&C
  • Pineda Cabrera v. Canada (Citizenship and Immigration), 2017 FC 239; http://canlii.ca/t/h067f; February 24, 2017; Strickland J.; RPD refusal of refugee claim
  • Jeyakumar v. Canada (Citizenship and Immigration), 2017 FC 241; http://canlii.ca/t/h0nld; February 27, 2017; McVeigh J.; RAD refusal of refugee appeal
  • Nweke v. Canada (Citizenship and Immigration), 2017 FC 242; http://canlii.ca/t/h03v1; February 27, 2017; Strickland J.; RPD refusal of refugee claim
  • Uwitonze c. Canada (Citoyenneté et Immigration), 2017 CF 245; http://canlii.ca/t/h03v0; February 28, 2017; Roussel J.; refusal of H&C

Danyi: discounting psychological assessments

Danyi v. Canada (Public Safety and Emergency Preparedness), 2017 FC 112

Boswell J., 30 January 2017, online at: http://canlii.ca/t/gxhhr

Decision under review: Refusal to defer removal

For Applicants: Richard Wazana (Wazana Law, Toronto)

For Respondent: Tamrat Gebeyehu, Dept. of Justice (Toronto)

The Applicants were a Roma family, citizens of Hungary, who had exhausted all avenues for protection under ss.96/97, but had a pending humanitarian and compassionate application (H&C), based in large part on a psychological assessment of one of the Applicants, a child, which concluded that return to Hungary would be harmful to him (paras. 3-4). His mother also suffered from PTSD and would have difficulty caring for him as a result (paras. 4 and 5). The Applicants cited Tiliouine,[1] for the position that a Removals Officer must consider whether the removal itself will cause harm.

The Applicants also challenged the standard position that a Removals Officer need only look at the short-term best interests of a child involved in terms of what they would face in the country of removal: “The Applicants also submitted to the Officer that Alex’s best short-term interests would be protected by deferring removal until after his overall best interests had been fully assessed in the context of the pending H&C application” (para. 4). Other grounds on which the deferral was requested was interruption of the child’s education and (non-psychological) medical treatment one of the Applicants was undergoing (paras. 4 and 6).

On standard of review, the Court noted that overall the test was reasonableness (paras. 14-15), but that the case law was not clear as to whether the standard of review on whether the Removals Officer fettered discretion would be reasonableness or correctness (paras. 16-18). The Court found that is was not necessary to answer the question.

The Court reiterated the standard line of cases on the narrowness of the Removals Officer’s discretion on deferral, and that Removals Officers need not perform “mini” H&Cs or other types of detailed assessments (paras. 28-32). The Court also reiterated the case law stating that Removals Officers need only conduct limited, short-term assessments of best interests of the child (paras. 33-35).

However and despite this, the Court found that the Removals Officer’s consideration of the child Applicant’s psychological assessment was unreasonable:

In this case, the Officer’s assessment of Alex’s mental health condition is problematic. Because enforcement officers must assess the short-term BIOC, the Officer was required to reasonably consider the psychiatric evidence about Alex’s short-term interests. The psychiatric assessment states that Alex’s return to Hungary would deprive him of his current sense of safety and stability since his past experiences there were highly traumatizing and hostile. The assessment found that his return would cause a relapse of his PTSD symptoms and would compromise his parents’ ability to meet his emotional and physical needs. Given the psychiatrist’s findings, the Officer’s conclusion that removal “may cause a period of adjustment” for Alex cannot be justified because it is not responsive to Alex’s short-term and present emotional, social, and psychological interests.

Although the Officer stated that his limited discretion was centered on evidence of “serious detrimental harm”, the Officer unreasonably minimized and discounted the serious detrimental harm evidenced and identified by the psychiatrist whose report concerning Alex clearly and unequivocally stated that: “…return to an environment that he and his parents have experienced as highly traumatizing and hostile…will cause a relapse of his symptoms of PTSD as well as compromise his parents’ ability to meet his emotional and physical needs.” In the face of this psychiatric evidence, it cannot be said that Alex would suffer merely a period of adjustment upon return to Hungary. In this case, the Officer did not reasonably consider or adequately assess the fact that removal itself would trigger or cause psychological harm to Alex. (paras. 36-37)

The Court also found that the Removals Officer’s assessment on the mother’s psychological assessment was also unreasonable, based on the Supreme Court’s analysis in Kanthasamy:

Although Kanthasamy involved an H&C application, unlike the present case which concerns a request to defer removal, in my view the Supreme Court’s foregoing comments are equally applicable in the context of this case. The Officer in this case, like the officer in Kanthasamy, unreasonably discounted the psychologist’s finding concerning Veronika’s mental health. The Officer faulted the psychologist’s report for being dated and not stating whether Veronika currently suffers from suicide ideation or is currently at risk for suicide. The Officer in this case, much like the officer in Kanthasamy, also found “insufficient medical evidence … to indicate that Veronika has sought or received mental health treatment, as recommended” and that “insufficient evidence was presented to indicate that Veronika could not pursue mental health treatment upon her return to Hungary.” The Officer did not reasonably consider or adequately assess the fact that removal itself would trigger or cause further psychological harm to Veronika, and his treatment of the medical evidence concerning Veronika, in view of Kanthasamy, is unreasonable. (para. 39)

 


[1] Tiliouine v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1146 (http://canlii.ca/t/glhwl); see e.g. at para. 11: “…where, as here, there is evidence of irreparable psychological harm resulting from the removal itself, it is not enough for the removal officer to simply examine the availability of health care and treatment in the home country (Sha v. Canada (Citizenship and Immigration), 2011 FC 1269 at para. 58; Davis v. Canada (Citizenship and Immigration), 2011 FC 97, at para. 19).”

Tuesday, March 07, 2017

Aslanyan: ignoring evidence

Aslanyan v. Canada (Citizenship and Immigration), 2017 FC 133

Strickland J., 3 February 2017, online at: http://canlii.ca/t/gxbpq

Decision under review: Refusal of overseas application for work permit as a spouse of a study permit holder

For Applicant: Aleksei Grachev (Toronto)

For Respondent: Tamrat Gebeyehu, Dept. of Justice (Toronto)

The Applicant’s spouse was in Canada on a study permit, and he applied for an open work permit. The Court agreed that he had made submissions with his application – although less clearly than he could have done - that he wanted an open work permit to allow him to work in Canada intermittently during his occasional visits to his family here (paras. 6 and 8). The Applicant had also submitted letters of support – essentially corroborative and character references – as well as submitting and providing evidence that through his job in Russia he was the family’s sole breadwinner, and furthermore that he was the principle carer for his dependent mother and could only be replaced for short periods of time (paras. 11-12).

None of the evidence provided was referenced in the Officer’s “reasons”, which were the FOSS/GCMS notes (para. 13).

The Respondent argued that the Applicant was clearly planning to leave his employment in Russia, as the Officer had determined, because his leave letter stated he had 28 days but his work permit application was for two years (para. 14). The Court found that in the context of the whole application, the Applicant clearly intended to work on-and-off during his visits to Canada, which would be made occasionally over a two-year period (para. 15). The Officer ignored evidence and the decision was thus overturned.

Monday, March 06, 2017

Singh: failure to engage with evidence after fairness letter

Singh v. Canada (Citizenship and Immigration), 2017 FC 132

Barnes, 2 February 2017, online at: http://canlii.ca/t/h03cj

Decision under review: Refusal of application under Federal Skilled Worker/Express Entry Program

For Applicant: Raj Sharma, Stewart Sharma Harsanyi (Calgary)

For Respondent: Gwen MacIsaac, Dept. of Justice (Saskatoon)

The Applicant applied under FSW/EE, as a financial auditor/accountant, and the Officer doubted his experience (para. 2). In his FSW/EE application, Mr. Singh claimed he had worked as an auditor with a particular accounting firm between December 1, 2011 and August 14, 2013; however, in previous student and temporary work visas, he had allegedly not listed this same work experience (paras. 2-3).

The Officer sent a fairness letter to Mr. Singh, stating that his work experience was in doubt based on an absence of corroborating evidence, failure to declare the work history in earlier applications, and that period of work overlapping with another at the Institute of Chartered Accountants of India (para. 4). Mr. Singh replied that he had not been employed by the Institute of Chartered Accountants of India but doing a co-op placement through them; he also submitted additional corroborating evidence; and he explained that he had omitted it from the previous applications through a misunderstanding, thinking that the previous applications required him to list his work experience in Canada (para. 5). He stated further that he would have included this experience because it would have been helpful to his applications – the clear implication of his statement is that he would have included it had he known he could.

The Officer’s refusal letter simply states that after the issue was raised, “You replied with further information and documents which were fully reviewed and assessed. However based on balance of probabilities and the evidence provided I am not satisfied that you acquired foreign work experience you have declared.” (para. 6). According to the FOSS/GCMS notes (para. 7), the Officer rejected Mr. Singh’s explanations because:

  • Mr. Singh stated he “would not have” failed to mention his work experience in the previous applications, but he did fail to mention it;
  • The fact the he was only mentioning it now “brings into doubt the credibility” of Mr. Singh; the Court went on to note that Mr. Singh had actually given several documents for corroboration, including those specifically requested by the officer, and to agree with counsel for Mr. Singh that the Officer had “failed to engage in a meaningful way with the evidence” (paras. 8-9);
  • During the period of overlap, he could not have been both working and studying, both on a full-time basis; the Court went on to note that as he was doing a co-op or internship, this was precisely what he was doing (para. 10);
  • The Officer also raised the issue that Mr. Singh had not yet been able to gain employment in Canada; the Court notes that this is a non sequitur and irrelevant (para. 11)

An Officer cannot merely pay lip service to submissions in response to a fairness letter; he or she must genuinely engage with the submissions.

Friday, December 30, 2016

Participatory Government, December 30, 2016


Consultations:

Provincial-Ontario Consultations:

Basic Income Pilot consultation

Federal Consultations:

  • None particularly relevant at this time

Bills:

Federal Bills at Committee (House):

  • None particularly relevant at this time

Federal Bills at Committee (Senate):

C-6, An Act to amend the Citizenship Act and to make consequential amendments to another Act

S-219, Non-Nuclear Sanctions Against Iran Act

S-226, Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)

Proposed Federal Regulations:

Regulations Amending the Immigration and Refugee Protection Regulations (Gaz. Vol. 150, No. 50 — December 10, 2016)

  • Open until January 9, 2017
  • Re: information sharing with UK, Australia and New Zealand
  • Proposed regulations, RIAS etc available here
  • Contact: 
Emmanuelle Deault-Bonin
Deputy Director
Identity Management and Information Sharing
Admissibility Branch
Immigration, Refugees and Citizenship Canada
180 Kent Street
Ottawa, Ontario
K1A 1L1
Telephone: 613-437-5894
Fax: 613-957-9187
Email: CIC.FCCR-RCCN.CIC@cic.gc.ca

Rules Amending the Federal Courts Rules (Gaz. Vol. 150, No. 45 — November 5, 2016)

  • Open until January 4, 2017
  • Re: monetary limits to procedures, books of authorities, appeal books, confidential documents, etc
  • Proposed regulations, RIAS etc available here
  • Contact:
Andrew Baumberg
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
Ottawa, Ontario
K1A 0H9
Telephone: 613-947-3177
Fax: 613-943-0354
Email: andrew.baumberg@fct-cf.gc.ca

                    Federal House of Commons e-Petitions:

                    e-331 (Immigration) (British Home Children)

                    e-547 (Refugees) (waiver of travel loans to refugees)

                    e-553 (Iran) (re-establishing diplomatic relations)

                    e-563 (Iran) (assistance to Canadian prisoners and diplomatic pressure)

                    e-572 (Foreign students) (prioritizing settlement of those who study in Canada)

                    e-609 (Syria) (provide assistance)

                    • Open until February 10, 2017
                    • Information and signing available here

                    e-626 (Ethiopia) (condemn atrocities against protesters)

                    • Open until February 24, 2017
                    • Information and signing available here

                    e-628 (Crimes against humanity) (recognition of ISIL atrocities)

                    • Open until February 24, 2017
                    • Information and signing available here

                    e-696 (Foreign policy) (paying ransom for people abducted abroad)

                    Monday, December 19, 2016

                    Varga v. Canada (Citizenship and Immigration), 2013 FC 494

                    Varga v. Canada (Citizenship and Immigration), 2013 FC 494 

                    May 10, 2013, Justice Rennie

                    This case includes helpful analysis on two main points: ignoring grounds (including standard of review) and dealing with a hostile decision maker. There is also a comment on when it is innappropriate to impugn a failure to produce corroborating evidence.

                    Ignoring Grounds

                    The Applicants were a Roma woman and children. Their evidence including mention of domestic problems. Rennie J. found the RPD ought to have considered domestic violence as a ground:
                    [5] Refugee claims involve fundamental human rights. Accordingly, it is critical that the Board consider any ground raised by the evidence even if not specifically identified by the claimant: Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689; Viafara v. Canada (Minister of Citizenship and Immigration), 2006 FC 1526 (CanLII), para. 13. It is, in most circumstances, a serious and potentially fatal error to ignore part of a refugee claim: Mersini v. Canada (Minister of Citizenship and Immigration), 2004 FC 1088 (CanLII), para. 6.
                    [6] The failure of the Board to address a ground of persecution, raised on the face of the record, is a breach of procedural fairness, reviewable on a correctness standard. Reasonableness and deference can have no role when there is no assessment of the evidence.

                    Hostile Decision Maker

                    Rennie J. also commented:
                    [11] Finally, while the Board must test a claimant’s credibility, and do so at times vigorously, this must be done with sensitivity, professionalism and an open mind. In this case, the Board member’s manner of questioning fell far short of this standard.
                    ...
                    [13] ...A Board member may not “egg a witness on,” or pepper his questioning with sarcastic remarks. 
                    In the decision, examples are given (at paras. 12-13) of challenging both the claimant and her children on their answers in a belligerent manner, e.g. "It’s not so easy now." and "It’s not so funny now, is it?  I didn’t think so." The Member also questioned the claimant aggressively, asking her irrelevant questions (e.g. did he look Roma), not letting her answer and challenging her answers before she had completed them (paras. 14-20).

                    Corroborating Evidence

                    The decision also notes that it is unreasonable to fault a claimant or applicant for a failure to produce corroborating documents where the evidence indicates that none would exist:

                    [9] Portions of the reasons given in support of the refusal have no relationship to the evidence. For example, the Board faulted the applicant for not producing supporting documentation to corroborate her attempts to seek state protection. This is difficult to understand in light of the applicant’s evidence that she did not seek protection. The Board stated that supporting evidence was required “[i]n light of the finding that many aspects of the applicant’s claim were not credible.” However, the Board did not indicate that it disbelieved any aspect of the applicant’s testimony. 
                    [10] The Board also stated that the applicant “had sufficient time to obtain the documents needed to substantiate her claim,” referring to the lack of police reports. The applicant did not go to the police and obviously could not obtain non-existent police reports.

                    Thursday, December 15, 2016

                    Participating in Government, December 15, 2016

                    Consultations:

                    Consultation on the Review of Record Suspensions

                    Federal Bills at Committee (House):

                    Federal Bills at Committee (Senate):

                    S-219, Non-Nuclear Sanctions Against Iran Act

                    S-226, Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law)

                    Proposed Federal Regulations:

                    Regulations Amending the Immigration and Refugee Protection Regulations (Gaz. Vol. 150, No. 50 — December 10, 2016)

                    • Open until January 9, 2017
                    • Re: information sharing with UK, Australia and New Zealand
                    • Proposed regulations, RIAS etc available here
                    • Contact: 
                    Emmanuelle Deault-Bonin
                    Deputy Director
                    Identity Management and Information Sharing
                    Admissibility Branch
                    Immigration, Refugees and Citizenship Canada
                    180 Kent Street
                    Ottawa, Ontario
                    K1A 1L1
                    Telephone: 613-437-5894
                    Fax: 613-957-9187
                    Email: CIC.FCCR-RCCN.CIC@cic.gc.ca

                    Rules Amending the Federal Courts Rules (Gaz. Vol. 150, No. 45 — November 5, 2016)



                      • Open until January 4, 2017
                      • Re: monetary limits to procedures, books of authorities, appeal books, confidential documents, etc
                      • Proposed regulations, RIAS etc available here
                      • Contact:
                      Andrew Baumberg
                      Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
                      Ottawa, Ontario
                      K1A 0H9
                      Telephone: 613-947-3177
                      Fax: 613-943-0354
                      Email: andrew.baumberg@fct-cf.gc.ca

                                        Federal House of Commons e-Petitions:

                                        e-626 (Ethiopia)

                                        e-696 (Foreign policy)

                                        e-553 (Iran)

                                        e-609 (Syria)

                                        e-563 (Iran)

                                        e-517 (Canadian citizenship)

                                        e-572 (Foreign students)

                                        Wednesday, July 30, 2014

                                        Gallows humor

                                        I haz it, as demonstrated by the fact that this article made me snort-laugh: Khaled Mashaal: Hamas Leader Hunted by Netanyahu Haunts Israel - TIME. Lessons, lessons...



                                        ...well, Mossad, maybe don't try to assassinate people using a method from Shakespeare? Because that worked out ever so well for Claudius.



                                        ...and maybe don't do it in a way practically designed to piss off a leader who's spent three decades bucking regional trends and trying to reach a peace agreement? I mean, no Middle East leader is without blemish, but come on!



                                        ...also, maybe don't make hilarious melodramatic warnings that you might try again (“The terrorist...must understand that anyone who executes terror will not enjoy immunity”) when the previous attempt sounds like a rejected Get Smart plot.

                                        Wednesday, June 18, 2014

                                        This is not a thing: Non-Muslim attorney in hijab wants other women in court to wear hijab

                                        This is old, but it came up in looking into the backstory of current 9/11 trial shenanigans. Look, no one should wear distractingly revealing clothes in court. And although I'm pretty sure she's misinterpreting the purpose of hijab/modest clothing in Islam (supposed to be about the wearer, not about other people, and for that reason not supposed to be imposed) I guess she can wear whatever she wants. But I get the distinct feeling this is a stunt move, meant to draw attention, which is the opposite of hijab. This is underscored by the behaviour of the defendants.



                                        And see above re: not imposing it on others.



                                        Attorney in hijab defends call for other women at 9/11 hearing to wear 'appropriate' clothing | Fox News

                                        Saturday, June 14, 2014

                                        From BoingBoing: The Problem with "Nature vs. Nurture" When It Comes to Sexuality



                                        THANK GOD, and I hope they never do find a single gene, because step number 2 will be trying to eradicate it.



                                        From BoingBoing: The Problem with "Nature vs. Nurture" When It Comes to Sexuality

                                        Switchblades

                                        True story: for most of my life I thought that because switchblades were illegal, all folding knives including my beloved wee victornox was illegal. (You could hurt someone with it, but they'd have to agree to hold still.) This was underscored when, as an articling student, the guards at Federal Court told me I'd have to put the knife, which I'd brought by accident on my keychain, into the locker with my cellphone (totally acceptable rule) and then listed it on the receipt as "switchblade".

                                        Switchblade - Wikipedia, the free encyclopedia

                                        Tuesday, December 18, 2012

                                        November Positive Cases 2012

                                        Palmer v. Canada (Public Safety and Emergency Preparedness) [and Citizenship and Immigration], 2012 FC 1277 (CanLII), Gagné, IAD misrepresentation refusal, 2012-11-02

                                        Ferko v. Canada (Citizenship and Immigration), 2012 FC 1284 (CanLII), Kane, refugee refusal, 2012-11-02

                                        Kannuthurai v. Canada (Citizenship and Immigration), 2012 FC 1288 (CanLII), Campbell, refugee refusal, 2012-11-02

                                        Rodriguez v. Canada (Citizenship and Immigration), 2012 FC 1291 (CanLII), partial, Shore, refugee refusal, 2012-11-05

                                        Le Blanc v. Canada (Citizenship and Immigration), 2012 FC 1292 (CanLII), Shore, H&C refusal, 2012-11-05

                                        Kitomi v. Canada (Citizenship and Immigration), 2012 FC 1293 (CanLII), Shore, IAD sponsorship refusal, 2012-11-05

                                        Brown, Donavan Derrick v. Canada (Citizenship and Immigration), 2012 FC 1305 (CanLII), Russell, PRRA refusal, 2012-11-08

                                        B306 v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1282 (CanLII), Gagné, ID finding of inadmissibility under s. 37, 2012-11-09

                                        Russom v. Canada (Citizenship and Immigration), 2012 FC 1311 (CanLII), Near, live-in caregiver refusal, 2012-11-09

                                        Nay v. Canada (Citizenship and Immigration), 2012 FC 1317 (CanLII), Rennie, refugee refusal, 2012-11-13

                                        Petrosyan v. Canada (Citizenship and Immigration), 2012 FC 1319 (CanLII), Rennie, Federal Skilled Worker refusal, 2012-11-13

                                        Shetty v. Canada (Citizenship and Immigration), 2012 FC 1321 (CanLII), Near, Federal Skilled Worker refusal, 2012-11-14

                                        Katinszki v. Canada (Citizenship and Immigration), 2012 FC 1326 (CanLII), de Montigny, refugee refusal, 2012-11-15

                                        Benhmuda v. Canada (Citizenship and Immigration), 2012 FC 1222 (CanLII), Gleason, H&C and Convention refugee abroad refusal, 2012-11-16

                                        Chen, Xue Liang v. Canada (Citizenship and Immigration), 2012 FC 1324 (CanLII), Gleason, refugee refusal, 2012-11-16

                                        Kemenczei v. Canada (Citizenship and Immigration), 2012 FC 1349 (CanLII), Russell, refugee refusal, 2012-11-21

                                        Gecaj v. Canada (Citizenship and Immigration), 2012 FC 1369 (CanLII), Russell, refugee refusal, 2012-11-27

                                        Strusberg Ramos v. Canada (Citizenship and Immigration), 2012 FC 1372 (CanLII), Mandamin, refugee refusal, 2012-11-28

                                        Mason v. Canada (Citizenship and Immigration), 2012 FC 1380 (CanLII), Lemieux, refugee refusal, 2012-11-28

                                        Jacob v. Canada (Citizenship and Immigration), 2012 FC 1382 (CanLII), Lemieux, H&C refusal, 2012-11-28

                                        Ashraf Gondal v. Canada (Citizenship and Immigration), 2012 FC 1383 (CanLII), Lemieux, H&C refusal, 2012-11-28

                                        Patel v. Canada (Citizenship and Immigration), 2012 FC 1389 (CanLII), Lemieux, IAD sponsorship refusal, 2012-11-28

                                        Zaree Robat Torki c. Canada (Citoyenneté et Immigration), 2012 CF 1400 (CanLII), Lemieux, refugee refusal, 2012-11-29

                                        Ye v. Canada (Citizenship and Immigration), 2012 FC 1381 (CanLII), Zinn, refugee refusal, 2012-11-29

                                        Sebucocero c. Canada (Citoyenneté et Immigration), 2012 CF 1408 (CanLII), Noël, refugee refusal, 2012-11-30

                                        Kaaker v. Canada (Citizenship and Immigration), 2012 FC 1401 (CanLII), Shore, refugee refusal, 2012-11-30

                                        Kumar v. Canada (Citizenship and Immigration), 2012 FC 1402 (CanLII), Shore, Federal Skilled Worker refusal, 2012-11-30

                                        Sunday, November 25, 2012

                                        BAILII Cases, Part 2

                                        W (Algeria) & Anor v Secretary of State for the Home Department [2012] UKSC 8 (7 March 2012) (BAILII)—the Special Immigration Appeals Commission may make an order allowing a claimant to put forward a confidential witness.

                                        RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38 (25 July 2012) (BAILII)—a person cannot be denied asylum on the basis that they are willing to feign agreement with the persecutory or oppressive government.

                                        ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011) (BAILII)—best interests of a citizen child must be considered when the deportation of a non-citizen parent effectively requires the child to leave as well.

                                        KU (Pakistan)—specific versus general credibility findings

                                        KU (Pakistan) v Secretary of State for the Home Department [2012] EWCA Civ 107 (17 January 2012) (BAILII)

                                        The appellant was a national of Pakistan whose asylum claim rested on his home village being in an area controlled by the Taliban. The appellant was alleged to have been an informer to the US, facilitating drone strikes. Two letters containing death threats were sent to the appellant, one via his father and the second via a cousin.

                                        The immigration judge found “that there was a real likelihood that the core of the appellant's account was true and that the two letters calling for the appellant's death did indeed emanate from the Taliban.” (para. 4). There was therefore a real risk to the appellant from the Taliban, and in the absence of state protection, and given that the Taliban could likely find him anywhere in Pakistan, asylum was warranted.

                                        The SSHD appealed, and the Senior Immigration Judge set aside the findings on the basis of “i) the appellant's credibility; ii) the sufficiency of protection that would be available to the appellant if he was returned to Pakistan; and iii) internal relocation.” (para. 7)

                                        On credibility, the EWCA notes that the Immigration Judge had considered what were called “difficulties” with the appellant’s account. These included why the appellant would return to Pakistan in 2009 if his family had been threatened in 2009, which the Immigration judge found was an error which the appellant had corrected at the earliest possibility. (para. 11)

                                        The Immigration Judge also found that while the appellant may have embellished parts of his story, it was plausible that the appellant’s father had not immediately informed him of the letter or that the appellant may have been so shocked by receiving the letter that he did not discuss the details with his father. Furthermore, the appellant’s delay in claiming was balanced against the fact that when he initially returned to the UK, he had a valid work permit (para. 12, citing paras. 22-23 of the original decision)

                                        The Immigration judge went on to say:

                                        Notwithstanding the difficulties with the appellant's account, I nevertheless find that there is a real likelihood that the core of it is true and that the letters he has produced, calling for his death, in fact emanate from the Taliban. It is surprising, as noted by the respondent, that he only managed to produce one letter at first, but I am prepared to accept his explanation that various trips had to be made to the South Waziristan in order to collect the second letter; if the appellant had obtained the letters fraudulently he would presumably have had no difficulty producing them both at the same time. One of the letters is written in Pushtu and one in Urdu and this anomaly, as well as the fact that they contain apparently capricious allegations, further persuade me that they are more likely to be reliable than documents which might have been more closely tailored to the facts of the case. The appellant has provided a comprehensive and plausible account and he withstood questioning remarkably well at the hearing in my view. I accept that there is a real likelihood that he left Pakistan owing to a well founded fear of being persecuted and that he still has a real fear of return. (para. 12, citing para. 24 of the original decision)

                                        On the issue of state protection, the Immigration Judge had referred to specific evidence on the lack of it in Pakistan. On the issue of internal relocation (IFA), the Immigration Judge likewise considered and referred to specific evidence.

                                        The Senior Immigration Judge felt that the Immigration Judge did not put sufficient weight on the fact that the appellant had been untruthful. The EWCA referred to “the decision in MA (Somalia) v SSHD [2010] UKSC 49, [2011] 2 All ER 65 in which the Supreme Court considered the significance of lies told by the appellant. That decision makes it clear that Immigration Judges must be alive to the danger of falling into the trap of dismissing an appeal merely because an appellant has lied.” (para. 18)

                                        The significant of a lie was found to be largely a matter for the Immigration Judge, who actually hears oral evidence (para. 20). The EWCa found that the Immigration Judge had properly considered whether the inconsistencies rendered the core of the claim not credible and provided adequate reasons for finding they did not (paras. 21-22).

                                        The Senior Immigration Judge found that the Immigration Judge had not applied the proper test for state protection, as laid out in the case of Horvath v SSHD [2005] UKHL 38, [2000] 3 All ELR 577. The EWCA noted that the fact that the Immigration Judge had not mentioned Horvath was not fatal to the decision. The EWCA noted:

                                        …It is common ground that the standard to be applied is not one which eliminates all risk or which offers a guarantee of protection, it is rather a practical standard which takes account of a state's duties to its citizens. The question therefore is whether there is anything in the Immigration Judge's determination which supports the Senior Immigration Judge's view that the Immigration Judge applied some higher standard. (para. 23)

                                        The EWCA pointed to the fact that the Immigration Judge had noted the evidence that the state in Pakistan was making efforts to fight the Taliban, “but rightly, in the light of Horvath, she was concerned with the practical question: to what extent had those efforts borne fruit?” (para. 26)

                                        Similarly on the issue of IFA, the EWCA found that the Immigration Judge had fully considered the evidence and given reasons for the appellant’s inability to find safety in either ( a) areas with high levels of immigrants from his home region, because those areas would likely be tied in to the Taliban information network, or ( b) areas with very few immigrants from his home region, because he would stand out in those areas.

                                        Saturday, November 24, 2012

                                        Moreno Sandoval—addressing a complaint of improper interpretation

                                        Moreno Sandoval v. Canada (Citizenship and Immigration), 2012 FC 1273 (CanLII)

                                        Judge: Justice O’Keefe; Date heard: October 15, 2012; Date decided: Octoer 31, 2012; Counsel for Moreno Sandoval: Richard Odeleye; Counsel for Minister: Suran Bhattacharyya; Place of Hearing: Toronto, Ontario.

                                        The Applicants were Mexican citizens who had refused on the basis of lack of nexus, lack of credibility, failure to rebut the presumption of state protection, and lack of individualized risk. They requested a declaration that they were Convention refugees or persons in need of protection, or in the alternative to have the decision overturned.

                                        The Principal Applicant worked in dairy sales. He was approached by men who wanted to join his business, and his wife and children were attacked. They fled to another city where he was again attacked. He tried to complain, but the police said that since the original incident happened in Irapuato, he’d have to make the report there. He did so, but felt that the police there weren’t responsive. The Human Rights Commission could not help them. They therefore fled to Canada, arriving in June 2009 (paras. 1-8).

                                        The RPD found that the Applicants feared criminals, and therefore had no nexus to the Convention. Furthermore:

                                        The [RPD] highlighted the Federal Court’s holding that a person’s risk is not personalized where the risk of actual or threatened violence is faced generally by others and not specific to the claimant. The [RPD] relied on documentation showing that thousands of citizens of Mexico have been victims of violence at the hands of criminals and drug cartels in Mexico. (para. 11)

                                        The RPD doubted the Principal Applicant’s credibility on the basis of “material omissions and inconsistencies”, and stated that the Applicants may have left Mexico because of the generally rising levels of danger (pars. 13-14). The RPD also took issue with the police complaints, which it found inconsistent (paras. 15-20). The RPD also found that there was adequate state protection in Mexico, and that the Applicant did not rebut this presumption by going to the police, because they did not tell the police who the perpetrators were, or give the police adequate chance to provide protection (paras. 20-21).

                                        The RPD’s findings largely revolved around credibility, and that was based on their testimony. In the hearing, the Applicants had complained about the interpretation. This was not addressed in the hearing, per se; the Member directed counsel to seek a remedy in writing at the conclusion of the hearing. Counsel did so. However, there is no indication that the complaint was considered by the Registrar or the Member (paras. 36-40).

                                        Justice O’Keefe found that credibility, and therefore interpretation, were sufficiently central to the decision that it was a breach of procedural fairness, and therefore the decision would need to be overturned.

                                        File under hilarious laws

                                        Marché ouvert

                                        Monday, November 19, 2012

                                        Huang—good faith in sur place claims

                                        Huang v. Canada (Citizenship and Immigration), 2012 FC 205 (CanLII)

                                        Judge: Justice Zinn; Date heard: December 1, 2011; Date decided: February 10, 2012;Counsel for Huang: Lindsey K. Weppler; Counsel for Minister: Judy Michaely; Place of Hearing: Toronto, Ontario.

                                        The Applicants were a family consisting of a Chinese woman and her minor children. In February 2007, having become ill, the Applicant became involved in Christianity and began attending a house church. In August 2008, the Applicant went into hiding when she learned that the Public Security Bureau was coming for the congregation. Friends were arrested and the PSB came to her house. She engaged an agent to bring her and her children to Canada. She also claimed on the basis of fear of forcible sterilization, since she had two children.

                                        Justice Zinn found that the RPD had erred in relying on a 2005 document that suggested sterilization was no longer used as punishment for violating family planning laws, when a more recent document (2010) discussed a sterilization campaign in the Applicant’s home region. As always, the RPD may rely on whatever evidence it chooses, but cannot disregard evidence which directly supports the claim without giving a valid reason for doing so (paras. 22-24).

                                        The RPD also erred in finding that the Applicant did not have a sur place claim in Canada, as the RPD found she was practising Christianity in Canada to strengthen her refugee claim. Justice Zinn noted that there was no evidence that her current practise of Christianity was not genuine (paras. 25-32).

                                        Portillo—generalized risk and heightened personal risk

                                        Portillo v. Canada (Citizenship and Immigration), 2012 FC 678 (CanLII)

                                        Judge: Justice Gleason; Date heard: March 21 2012; Date decided: June 4, 2012; Counsel for Portillo: Jeffrey Goldman; Counsel for Minister: Charles Jubenville; Place of Hearing: Toronto, Ontario.

                                        The Applicant was a citizen of El Salvador who had been targeted by the Mara Salvatrucha (the MS). The Refugee Protection Division (RPD) found that the Applicant was not being persecuted for a Convention ground, and furthermore:

                                        …With respect to section 97, the Board determined that the applicant “had been identified personally as a target” by the MS (decision at para 34) [emphasis added]; however, despite this finding, the RPD concluded that the risk the applicant faced was a generalized one since gang-related crime is rampant in El Salvador. Because the risk was generalized, the RPD concluded that section 97 of IRPA was inapplicable as paragraph 97(1)(b)(ii) of IRPA provides that those who face risks that would be “faced generally by other individuals in or from that country” cannot be persons in need of protection. (para. 2)

                                        Justice Gleason set out a two-step test for making an analysis under s. 97: first, the RPD must “appropriately determine the nature of the risk faced by the claimant”. She went on to say:

                                        …Many of the cases where the Board’s decisions have been overturned involve determinations by this Court that the Board’s characterization of the nature of the risk faced by the claimant was unreasonable and that the Board erred in conflating a highly individual reason for heightened risk faced by a claimant with a general risk of criminality faced by all or many others in the country. (para. 40)

                                        The second step is to compare “the correctly-described risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree.  If the risk is not the same, then the claimant will be entitled to protection under section 97 of IRPA.” (para. 41).

                                        Justice Gleason found that in this case, the ROD had failed to consider whether the Applicant, who had been identified as a police informant, was at more risk from the MS than the general population (paras. 48-50).

                                        Williams—need to assess children’s best interests, not hardship

                                        Williams v. Canada (Citizenship and Immigration), 2012 FC 166 (CanLII)

                                        Judge: Justice Russell; Date heard: January 10, 2012; Date decided: February 7, 2012; Counsel for Williams: Geraldine Sadoway; Counsel for Minister: Veronica Cham; Place of Hearing: Toronto, Ontario.

                                        The Applicant was a citizen of Grenada whose son Omar was a citizen, having been born in Canada in 2002. The Applicant, Erlina Mary Williams, visited Canada in 2001 and 2002, returning to Grenada each time. In November 2004, she again came to Canada, but this time she made a refugee claim on the grounds of spousal abuse. The claim was denied in December 2005. A PRRA was denied in July 2007. She made an application on H&C grounds in March 2007.

                                        The H&C was based on two grounds: the hardship from the spousal abuse, and the hardship to Omar including the fact that he suffered from asthma and it would be difficult to treat properly in Grenada.

                                        The Applicant was ordered deported and left voluntarily in August 2007. In July and December 2008, she made further submissions to the H&C, detailing the problems Omar was having in Grenada, including a doctor’s letter. Final submissions along similar lines were made in April 2011. Shortly afterwards, the Officer refused the application.

                                        Justice Russell found that the Officer also erred in assessing Omar in terms of hardship and not best interests (paras. 54-67).