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).

Saturday, November 17, 2012

October Positive Cases 2012

Bin Sun v. Canada (Citizenship and Immigration), 2012 FC 1154 (CanLII), Rennie, refugee refusal, 2012-10-01

Aguilar Zacarias v. Canada (Citizenship and Immigration), 2012 FC 1155 (CanLII), Gleason, refugee refusal, 2012-10-01

Foroogh v. Canada (Citizenship and Immigration), 2012 FC 1171 (CanLII), Phelan, Convention refugee abroad refusal, 2012-10-04

Bibby-Jacobs v. Canada (Citizenship and Immigration), 2012 FC 1176 (CanLII), Martineau, refugee refusal, 2012-10-09

Asher Belle v. Canada (Citizenship and Immigration), 2012 FC 1181 (CanLII), Mandamin, refugee refusal, 2012-10-10

Caliskan v. Canada (Citizenship and Immigration), 2012 FC 1190 (CanLII), Hughes, H&C refusal, 2012-10-12

Hussain, Syed Zulfiqar v. Canada (Citizenship and Immigration), 2012 FC 1199 (CanLII), Hughes, security inadmissibility finding, 2012-10-15

Khames v. Canada (Citizenship and Immigration), 2012 FC 1201 (CanLII), Mandamin, in-Canada spousal sponsorship refusal, 2012-10-15

Walia v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1203 (CanLII), Zinn, H&C and PRRA refusal, 2012-10-16

Ahmadpour v. Canada (Citizenship and Immigration), 2012 FC 1206 (CanLII), Rennie, PRRA refusal, 2012-10-16

Cox, Veronica et al. v. Canada (Citizenship and Immigration), 2012 FC 1220 (CanLII), Near, refugee refusal, 2012-10-19

Benhmuda, Adel v. Canada (Citizenship and Immigration), 2012 FC 1222 (CanLII), Gleason, Convention Refugee Abroad Class/H&C refusal with very detailed remedy, 2012-10-19

Francis, Carleen Christie v. Canada (Citizenship and Immigration), 2012 FC 1141 (CanLII), Noël, refugee refusal, 2012-10-24

Yotheeswaran v. Canada (Citizenship and Immigration), 2012 FC 1236 (CanLII), Campbell, refugee refusal, 2012-10-24

George, Tana v. Canada (Citizenship and Immigration), 2012 FC 1240 (CanLII), O’Keefe, H&C refusal, 2012-10-25

Mansouri v. Canada (Citizenship and Immigration), 2012 FC 1242 (CanLII), Phelan, federal skilled worker refusal, 2012-10-25

Rasuli v. Canada (Citizenship and Immigration), 2012 FC 1244 (CanLII), O’Reilly, Convention refugee abroad class/country of asylum class refusal, 2012-10-25

Cishahayo v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1237 (CanLII), Pinard, refugee claim eligibility refusal, 2012-10-29

Xie, Zhenchuan v. Canada (Citizenship and Immigration), 2012 FC 1239 (CanLII), Pinard, temporary work permit refusal, 2012-10-29

Bryndza v. Canada (Citizenship and Immigration), 2012 FC 1250 (CanLII), Campbell, refugee refusal, 2012-10-29

Laryea v. Canada (Citizenship and Immigration), 2012 FC 1251 (CanLII), Campbell, IAD sponsorship appeal refusal, 2012-10-29

Dag v. Canada (Citizenship and Immigration), 2012 FC 1254 (CanLII), O’Keefe, refugee refusal, 2012-10-29

Lozano Vasquez v. Canada (Citizenship and Immigration), 2012 FC 1255 (CanLII), O’Keefe, H&C refusal, 2012-10-29

Zhou, Zhi Tian v. Canada (Citizenship and Immigration), 2012 FC 1252 (CanLII), Zinn, refugee refusal, 2012-10-30

Thangappan v. Canada (Citizenship and Immigration), 2012 FC 1266 (CanLII), Campbell, work permit/temporary resident permit extension refusal, 2012-10-30

S.R.H. v. Canada (Citizenship and Immigration), 2012 FC 1271 (CanLII), O’Keefe, refugee refusal, 2012-10-31

Moreno Sandoval v. Canada (Citizenship and Immigration), 2012 FC 1273 (CanLII), O’Keefe, refugee refusal, 2012-10-31

Positive Cases September 2012

Doraisamy v. Canada (Citizenship and Immigration), 2012 FC 1053 (CanLII), O’Keefe, spouse in Canada class refusal, 2012-09-05

Webb v. Canada (Citizenship and Immigration), 2012 FC 1060 (CanLII), Mosley, non-declared dependents refusal, 2012-09-07

Tavakoli Dinani v. Canada (Citizenship and Immigration), 2012 FC 1063 (CanLII), Shore, visitor’s visa refusal, 2012-09-07

Lopez Gayton v. Canada (Public Safety and Emergency Preparedness), 2012 FC 1075 (CanLII), Mactavish, criminal inadmissibility, 2012-09-11

Tan, Xiao Feng v. Canada (Citizenship and Immigration), 2012 FC 1079 (CanLII), O’Keefe, federal skilled worker refusal, 2012-09-13

Wei, Dong Sheng v. Canada (Citizenship and Immigration), 2012 FC 1084 (CanLII), O’Keefe, IAD residency appeal refusal, 2012-09-17

Castellon Viera v. Canada (Citizenship and Immigration), 2012 FC 1086 (CanLII), Crampton, IAD inadmissibility appeal refusal, 2012-09-18

Patel v. Canada (Citizenship and Immigration), 2012 FC 1090 (CanLII), Mandamin, family class/H&C refusal, 2012-09-18

Sebok v. Canada (Citizenship and Immigration), 2012 FC 1107 (CanLII), Snider, refugee refusal, 2012-09-21

Mbo Wato v. Canada (Citizenship and Immigration), 2012 FC 1113 (CanLII), Rennie, refugee refusal, 2012-09-24

Escamilla Marroquin v. Canada (Citizenship and Immigration), 2012 FC 1114 (CanLII), Rennie, refugee refusal, 2012-09-24

Mezbani v. Canada (Citizenship and Immigration), 2012 FC 1115 (CanLII), Boivin, Convention refugee abroad class/country of asylum class refusal, 2012-09-24

Pinter, Tibor et al. v. Canada (Citizenship and Immigration), 2012 FC 1119 (CanLII), Zinn, refugee refusal, 2012-09-25

Biro, Attilla et al. v. Canada (Citizenship and Immigration), 2012 FC 1120 (CanLII), Zinn, refugee refusal, 2012-09-25

Alhayek, Eman Hanna et al. v. Canada (Citizenship and Immigration), 2012 FC 1126 (CanLII), O’Keefe, refugee refusal, 2012-09-25

Zuluaga Robles v. Canada (Citizenship and Immigration), 2012 FC 1134 (CanLII), O’Keefe, PRRA refusal, 2012-09-26

Patchelli Gatali Boukaka v. Canada (Citizenship and Immigration), 2012 FC 1137 (CanLII), Lemieux, refugee refusal, 2012-09-26

Farah, Mohamud Abdulla v. Canada (Citizenship and Immigration), 2012 FC 1149 (CanLII), Gleason, PRRA refusal, 2012-09-28

Positive Cases August 2012

Mazrekaj v. Canada (Citizenship and Immigration), 2012 FC 953 (CanLII), O’Reilly, refugee refusal, 2012-08-01

Devi, Satya v. Canada (Citizenship and Immigration), 2012 FC 954 (CanLII), O’Reilly, H&C refusal, 2012-08-01

Nino v. Canada (Citizenship and Immigration), 2012 FC 956 (CanLII), O’Reilly, refugee refusal, 2012-08-01

Utenkova v. Canada (Citizenship and Immigration), 2012 FC 959 (CanLII), Mandamin, study permit refusal, 2012-08-01

Kaur, Kulvir v. Canada (Citizenship and Immigration), 2012 FC 964 (CanLII), Mandamin, H&C refusal, 2012-08-01

Faizy v. Canada (Citizenship and Immigration), 2012 FC 961 (CanLII), O’Reilly, overseas refugee refusal, 2012-08-02

Rezagh Sarab v. Canada (Citizenship and Immigration), 2012 FC 969 (CanLII), Mactavish, H&C refusal, 2012-08-03

Moya v. Canada (Citizenship and Immigration), 2012 FC 971 (CanLII), Hughes, H&C refusal, 2012-08-07

Strachn v. Canada (Citizenship and Immigration), 2012 FC 984 (CanLII), Rennie, H&C and PRRA refusal, 2012-08-14

Gur v. Canada (Citizenship and Immigration), 2012 FC 992 (CanLII), de Montigny, refugee refusal, 2012-08-14

Paramsothy v. Canada (Citizenship and Immigration), 2012 FC 1000 (CanLII), Mandamin, refugee refusal, 2012-08-16

Huang, Cuixia v. Canada (Citizenship and Immigration), 2012 FC 1002 (CanLII), Mandamin, refugee refusal, 2012-08-20

Echeverria Olivares v. Canada (Citizenship and Immigration), 2012 FC 1010 (CanLII), Gleason, refugee refusal, 2012-08-23

Velazquez Sanchez v. Canada (Citizenship and Immigration), 2012 FC 1009 (CanLII), Rennie, H&C refusal, 2012-08-24

Bhagria v. Canada (Citizenship and Immigration), 2012 FC 1015 (CanLII), O’Keefe, adoption citizenship refusal, 2012-08-27

Altun v. Canada (Citizenship and Immigration), 2012 FC 1034 (CanLII), Shore, refugee refusal, 2012-08-29

Kipa Numbi v. Canada (Citizenship and Immigration), 2012 FC 1037 (CanLII), Boivin, refugee refusal, 2012-08-30

Dindo v. Canada (Citizenship and Immigration), 2012 FC 1040 (CanLII), Zinn, refugee re-opening refusal, 2012-08-30

Balcorta Olvera v. Canada (Citizenship and Immigration), 2012 FC 1048 (CanLII), Shore, refugee refusal, 2012-08-31

Friday, November 16, 2012

Positive Cases July 2012

Subramaniam, Pushparajah v. Canada (Citizenship and Immigration), 2012 FC 843 (CanLII), Rennie, refugee refusal, 2012-07-04

Sabaratnam, Manivannan v. Canada (Citizenship and Immigration), 2012 FC 844 (CanLII), Rennie, refugee refusal, 2012-07-04

De la Cruz, Carmen Ofelia et al. v. Canada (Citizenship and Immigration), 2012 FC 850 (CanLII), Shore, stay granted, 2012-07-05

Sibomana v. Canada (Citizenship and Immigration), 2012 FC 853 (CanLII), Noël, exclusion order, 2012-07-05

Fatih, Ayhan v. Canada (Citizenship and Immigration), 2012 FC 857 (CanLII), O’Keefe, refugee refusal, 2012-07-05

R.S. v. Canada (Citizenship and Immigration), 2012 FC 860 (CanLII),  Gleason, refugee refusal, 2012-07-06

Singh Bajwa, Sadhu et al. v. Canada (Citizenship and Immigration), 2012 FC 864 (CanLII), O’Keefe, refusal to extend permanent resident visa, 2012-07-09

Kambo v. Canada (Citizenship and Immigration), 2012 FC 872 (CanLII), Russell, H&C refusal, 2012-07-10

Ghebremichael v. Canada (Citizenship and Immigration), 2012 FC 873 (CanLII), Mosley, refugee refusal, 2012-07-11

Mboudu v. Canada (Citizenship and Immigration), 2012 FC 881 (CanLII), O’Reilly, refugee refusal, 2012-07-13

Osorio, Pamela v. Canada (Citizenship and Immigration), 2012 FC 882 (CanLII), O’Reilly, skilled worker refusal, 2012-07-13

Mohmadi, Ahmad Wali v. Canada (Citizenship and Immigration), 2012 FC 884 (CanLII), Mandamin, refugee refusal, 2012-07-13

Alavi Mofrad v. Canada (Citizenship and Immigration), 2012 FC 901 (CanLII), Gleason, refugee refusal, 2012-07-18

Nijjar v. Canada (Citizenship and Immigration), 2012 FC 903 (CanLII), Simpson, IAD sponsorship appeal refusal, 2012-07-19

Lainez v. Canada (Citizenship and Immigration), 2012 FC 914 (CanLII), O’Keefe, PRRA refusal, 2012-07-19

Gorqaj v. Canada (Citizenship and Immigration), 2012 FC 920 (CanLII), Harrington, refugee refusal, 2012-07-20

Chéry v. Canada (Citizenship and Immigration), 2012 FC 922 (CanLII), Mosley, IAD family appeal refusal, 2012-07-20

Chowdhury, Shamsun Naher v. Canada (Citizenship and Immigration), 2012 FC 935 (CanLII), Snider, federal skilled worker refusal, 2012-07-27

Fulga-Tuzluchi v. Canada (Citizenship and Immigration), 2012 FC 946 (CanLII), Harrington, citizenship refusal, 2012-07-31

Gergedava v. Canada (Citizenship and Immigration), 2012 FC 957 (CanLII), Mactavish, refugee refusal, 2012-07-31

Positive Cases June 2012

Nsimba Munganga v. Canada (Citizenship and Immigration), 2012 FC 676 (CanLII), Simpson, refugee refusal, 2012-06-01

Jakaj v. Canada (Citizenship and Immigration), 2012 FC 677 (CanLII), Tremblay-Lamer, refugee refusal, 2012-06-01

Portillo v. Canada (Citizenship and Immigration), 2012 FC 678 (CanLII), Gleason, refugee refusal, 2012-06-04

Bledy v. Canada (Citizenship and Immigration), 2012 FC 679 (CanLII), Simpson, refugee refusal, 2012-06-04

Adeoye v. Canada (Citizenship and Immigration), 2012 FC 680 (CanLII), Mosley, PRRA refusal, 2012-06-04

Kim, Ki Il v. Canada (Citizenship and Immigration), 2012 FC 687 (CanLII), Shore, H&C refusal, 2012-06-05

Umuhoza v. Canada (Citizenship and Immigration), 2012 FC 689 (CanLII), Shore, refugee refusal, 2012-06-05

Cao, Ze Tong v. Canada (Citizenship and Immigration), 2012 FC 694 (CanLII), Mactavish, refugee refusal, 2012-06-05

Kabeya v. Canada (Citizenship and Immigration), 2012 FC 697 (CanLII), Near, PRRA refusal, 2012-06-06

Singh Sekhon v. Canada (Citizenship and Immigration), 2012 FC 700 (CanLII), O’Reilly, work visa refusal, 2012-06-06

Ballestro Romero v. Canada (Citizenship and Immigration), 2012 FC 709 (CanLII), Rennie, refugee refusal, 2012-06-07

Rousse v. Canada (Citizenship and Immigration), 2012 FC 721 (CanLII), Scott, citizenship, 2012-06-08

Saleem v. Canada (Citizenship and Immigration), 2012 FC 724 (CanLII), Mosley, refugee refusal, 2012-06-08

Raji v. Canada (Citizenship and Immigration), 2012 FC 731 (CanLII), Campbell, H&C refusal, 2012-06-11

Canada (Citizenship and Immigration) v. Fernando, 2012 FC 706 (CanLII), dismissed against government, Pinard, refugee status granted, 2012-06-12

Niyonkuru v. Canada (Citizenship and Immigration), 2012 FC 732 (CanLII), Shore, refugee refusal, 2012-06-12

Msibi v. Canada (Citizenship and Immigration), 2012 FC 739 (CanLII), Campbell, refugee refusal, 2012-06-13

Szabo, Peter et al. v. Canada (Citizenship and Immigration), 2012 FC 742 (CanLII), Snider, refugee refusal, 2012-06-13

Hafeez v. Canada (Citizenship and Immigration), 2012 FC 747 (CanLII), Phelan, refugee refusal, 2012-06-14

Dan Shallow v. Canada (Citizenship and Immigration), 2012 FC 749 (CanLII), Snider, H&C refusal, 2012-06-14

Nadarasa v. Canada (Citizenship and Immigration), 2012 FC 752 (CanLII), Phelan, refugee refusal, 2012-06-14

Ogunrinde v. Canada (Public Safety and Emergency Preparedness), 2012 FC 760 (CanLII), Russell, PRRA refusal, 2012-06-15

Mernacaj v. Canada (Citizenship and Immigration), 2012 FC 762 (CanLII), Russell, refugee refusal, 2012-06-15

Lumaj, Manjola et al. v. Canada (Citizenship and Immigration), 2012 FC 763 (CanLII), Russell, refugee refusal, 2012-06-15

Tobar Toledo v. Canada (Citizenship and Immigration), 2012 FC 764 (CanLII), de Montigny, refusal of eligibility to make refugee claim, 2012-06-15

Iqbal v. Canada (Citizenship and Immigration), 2012 CanLII 35042 (FC), Shore, refugee refusal, 2012-06-18

Touré, Moussa v. Canada (Citizenship and Immigration), 2012 FC 773 (CanLII), Shore, refugee refusal, 2012-06-19

Maniero v. Canada (Citizenship and Immigration), 2012 FC 776 (CanLII), Zinn, refugee refusal, 2012-06-19

Marma v. Canada (Citizenship and Immigration), 2012 FC 777 (CanLII), partially allowed, Zinn, refugee refusal, 2012-06-19

Janiak v. Canada (Citizenship and Immigration), 2012 FC 778 (CanLII), Zinn, refugee refusal, 2012-06-19

Sandoval Salamanca v. Canada (Citizenship and Immigration), 2012 FC 780 (CanLII), Zinn, refugee refusal, 2012-06-19

Bell v. Canada (Citizenship and Immigration), 2012 FC 783 (CanLII), Russell, IAD criminality appeal refusal, 2012-06-19

Avdullahi v. Canada (Citizenship and Immigration), 2012 FC 784 (CanLII), Shore, refugee refusal, 2012-06-20

Okwagbe v. Canada (Citizenship and Immigration), 2012 FC 792 (CanLII), Zinn, refugee refusal, 2012-06-20

Sran v. Canada (Citizenship and Immigration), 2012 FC 791 (CanLII), Mosley, PNP refusal, 2012-06-25

Miguel v. Canada (Citizenship and Immigration), 2012 FC 802 (CanLII), Tremblay-Lamer, inadmissibility for membership, 2012-06-25

Nour v. Canada (Citizenship and Immigration), 2012 FC 805 (CanLII), Scott, refugee refusal, 2012-06-25

Olahova v. Canada (Citizenship and Immigration), 2012 FC 806 (CanLII), Zinn, refugee refusal, 2012-06-25

Corpuz Ledda v. Canada (Public Safety and Emergency Preparedness), 2012 FC 811 (CanLII), Mosley, IAD extension of time refusal, 2012-06-25

Sebbe v. Canada (Citizenship and Immigration), 2012 FC 813 (CanLII), Zinn, H&C refusal, 2012-06-25

Singh, Gurpinder v. Canada (Citizenship and Immigration), 2012 FC 814 (CanLII), Snider, federal skilled worker refusal, 2012-06-26

Tomlinson v. Canada (Citizenship and Immigration), 2012 FC 822 (CanLII), Mactavish, refugee refusal, 2012-06-28

Chaudhary, Zafar v. Canada (Citizenship and Immigration), 2012 FC 828 (CanLII), Zinn, spousal sponsorship refusal, 2012-06-28

Wednesday, November 14, 2012

BAILII Cases Part 1

Othman (Abu Qatada) -v- Secretary of State for the Home Department (appeal allowed) [2012] UKSIAC 15/2005_2 (12 November 2012) Special Immigrations Appeals Commission: SSHD ought to have revoked deportation order.

Mohammed, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin) (02 November 2012) England and Wales High Court (Administrative Court): Leave to remain decision sent back for reconsideration with directions.

Kalidas (agreed facts - best practice) Tanzania [2012] UKUT 327 (IAC) (02 November 2012) Upper Tribunal (Immigration and Asylum Chamber): Agreed statement of facts.

MF (Article 8 - new rules) Nigeria [2012] UKUT 393 (IAC) (31 October 2012) Upper Tribunal (Immigration and Asylum Chamber): Best interests of the child.

Mubu and others (immigration appeals - res judicata) Zimbabwe [2012] UKUT 398 (IAC) (24 October 2012) Upper Tribunal (Immigration and Asylum Chamber): Res judicata.

AL-TAYYAR ABDELHAKIM v. HUNGARY - 13058/11 - HEJUD [2012] ECHR 1834 (23 October 2012); HENDRIN ALI SAID AND ARAS ALI SAID v. HUNGARY - 13457/11 - HEJUD [2012] ECHR 1841 (23 October 2012) European Court of Human Rights: Article 5 (liberty and security).

Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363 (23 October 2012) England and Wales Court of Appeal (Civil Division): automatic deportation with criminal record.

Mulliqi, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2852 (Admin) (18 October 2012) England and Wales High Court (Administrative Court): detention review.

Okunade v Minister for Justice Equality and Law Reform & the Attorney General [2012] IESC 49 (16 October 2012) Supreme Court of Ireland Decision: refugee refusal.

SA (Iran), R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2575 (Admin) (15 October 2012) England and Wales High Court (Administrative Court): refugee refusal.

HAA (s.72: overseas conviction) Somalia [2012] UKUT 366 (IAC) (10 October 2012) Upper Tribunal (Immigration and Asylum Chamber): conviction abroad.

EH, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) (27 September 2012) England and Wales High Court (Administrative Court): detention review.

AAM (A Child) v Secretary of State for the Home Department [2012] EWHC 2567 (QB) (27 September 2012) England and Wales High Court (Queen's Bench Division): detention review.

ABC, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2825 (Admin) (25 September 2012) England and Wales High Court (Administrative Court): reopening asylum claim.

MSS v. Belgium

M.S.S. v. BELGIUM AND GREECE - 30696/09 [2011] ECHR 108 (21 January 2011)

The Applicant was an Afghan asylum seeker who entered the EU through Greece and made a claim in Belgium. In accordance with the Dublin Regulations, he was to be sent back to Greece, where he originally entered. A claim was entered against Greece and Belgium in the ECHR. The ECHR found that in the Applicant’s case:

…the Court finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 because of the deficiencies in the Greek authorities' examination of the applicant's  asylum  request and the risk he faces of being returned directly or indirectly to his country of origin without any serious examination of the merits of his  asylum  application and without having access to an effective remedy. (para. 321)

Article 3 of the European Convention prohibits torture, and Article 13 is the right to an effective remedy. The ECHR also found that in transferring the Applicant back, it breached his rights under Article 3 (paras. 360, 367).

Thursday, November 08, 2012

Positive Cases May 2012

Kuccuk v. Canada (Citizenship and Immigration), 2012 FC 500 (CanLII), Shore, refugee refusal, 2012-05-01

Tursunbayev v. Canada (Public Safety and Emergency Preparedness), 2012 FC 504 (CanLII), Mactavish, review of detention review, 2012-05-02

Diaz Ovalle v. Canada (Citizenship and Immigration), 2012 FC 507 (CanLII), O’Reilly, medical inadmissibility, 2012-05-02

Chen, Yu v. Canada (Citizenship and Immigration), 2012 FC 510 (CanLII), Russell, refugee refusal, 2012-05-02

Saint-Eustache v. Canada (Citizenship and Immigration), 2012 FC 511 (CanLII), Scott, refugee refusal, 2012-05-02

Sidhu v. Canada (Citizenship and Immigration), 2012 FC 515 (CanLII), Russell, IAD sponsorship appeal refusal, 2012-05-03

Andoni v. Canada (Citizenship and Immigration), 2012 FC 516 (CanLII), Russell, refugee refusal, 2012-05-03

Pathmanathan v. Canada (Citizenship and Immigration), 2012 FC 519 (CanLII), Russell, refugee refusal, 2012-05-03

Cervenakova v. Canada (Citizenship and Immigration), 2012 FC 525 (CanLII), Russell, refugee refusal, 2012-05-03

Noh, Jae Bok et al. v. Canada (Citizenship and Immigration), 2012 FC 529 (CanLII), Russell, refugee refusal, 2012-05-03

Zhang, Haixhin v. Canada (Citizenship and Immigration), 2012 FC 503 (CanLII), Campbell, refugee refusal, 2012-05-04

Molnar v. Canada (Citizenship and Immigration), 2012 FC 530 (CanLII), Russell, refugee refusal, 2012-05-04

B. L. v. Canada (Citizenship and Immigration), 2012 FC 538 (CanLII), Mosley, H&C refusal, 2012-05-04

Sami v. Canada (Citizenship and Immigration), 2012 FC 539 (CanLII), Russell, IAD sponsorship appeal refusal, 2012-05-04

Hu v. Canada (Citizenship and Immigration), 2012 FC 544 (CanLII), Campbell, refugee refusal, 2012-05-04

Chen, Dan Ni v. Canada (Citizenship and Immigration), 2012 FC 545 (CanLII), Campbell, refugee refusal, 2012-05-04

Sabogal Riveros v. Canada (Citizenship and Immigration), 2012 FC 547 (CanLII), Russell, refugee refusal, 2012-05-04

Su v. Canada (Citizenship and Immigration), 2012 FC 554 (CanLII), Zinn, refugee refusal, 2012-05-09

Diallo v. Canada (Citizenship and Immigration), 2012 FC 562 (CanLII), O’Reilly, refugee refusal, 2012-05-09

Chen, Jue v. Canada (Citizenship and Immigration), 2012 FC 565 (CanLII), Mactavish, refugee refusal, 2012-05-10

Molnar, Laszlo v. Canada (Citizenship and Immigration), 2012 FC 577 (CanLII), Heneghan, refugee refusal, 2012-05-14

Canada (Citizenship and Immigration) v. Jiang, 2012 FC 574 (CanLII), dismissed against government, Zinn, refugee status finding, 2012-05-15

Wu, Xiao Fan v. Canada (Citizenship and Immigration), 2012 FC 578 (CanLII), Boivin, refugee refusal, 2012-05-15

Fah Ng v. Canada (Citizenship and Immigration), 2012 FC 583 (CanLII), O’Keefe, H&C refusal, 2012-05-15

Phung v. Canada (Citizenship and Immigration), 2012 FC 585 (CanLII), Mosley, sponsorship refusal, 2012-05-15

Su v. Canada (Citizenship and Immigration), 2012 FC 586 (CanLII), Campbell, refugee refusal, 2012-05-15

Tumisang v. Canada (Citizenship and Immigration), 2012 FC 589 (CanLII), Campbell, refugee refusal, 2012-05-16

Anzola Barragan v. Canada (Citizenship and Immigration), 2012 FC 599 (CanLII), Campbell, refugee refusal, 2012-05-17

George v. Canada (Citizenship and Immigration), 2012 FC 600 (CanLII), Campbell, H&C refusal, 2012-05-17

Zheng, Jian Hua v. Canada (Citizenship and Immigration), 2012 FC 608 (CanLII), Near, refugee refusal, 2012-05-18

Wang, Lian Zhi et al. v. Canada (Citizenship and Immigration), 2012 FC 610 (CanLII), Rennie, PRRA refusal, 2012-05-18

Ahonsi Johnson v. Canada (Citizenship and Immigration), 2012 FC 615 (CanLII), Near, refugee refusal, 2012-05-22

Ezemenari v. Canada (Citizenship and Immigration), 2012 FC 619 (CanLII), Zinn, citizenship, 2012-05-22

Kutaladze v. Canada (Citizenship and Immigration), 2012 FC 627 (CanLII), Shore, refugee refusal, 2012-05-23

Itua v. Canada (Citizenship and Immigration), 2012 FC 631 (CanLII), Campbell, refugee refusal, 2012-05-24

Ramon Alcaraz v. Canada (Citizenship and Immigration), 2012 FC 639 (CanLII), Rennie, PRRA refusal, 2012-05-24

Goman v. Canada (Citizenship and Immigration), 2012 FC 643 (CanLII), Heneghan, refugee refusal, 2012-05-25

Kalkat v. Canada (Citizenship and Immigration), 2012 FC 646 (CanLII), Noël, citizenship, 2012-05-28

Ye v. Canada (Citizenship and Immigration), 2012 FC 652 (CanLII), Heneghan, Canadian Experience Class refusal, 2012-05-28

Touma v. Canada (Citizenship and Immigration), 2012 FC 657 (CanLII), Shore, PRRA refusal, 2012-05-29

Talukder v. Canada (Citizenship and Immigration), 2012 FC 658 (CanLII), Heneghan, refugee refusal, 2012-05-29

Sanchez Cruz v. Canada (Citizenship and Immigration), 2012 FC 664 (CanLII), Scott, refugee refusal, 2012-05-30

Nadarajah v. Canada (Citizenship and Immigration), 2012 FC 670 (CanLII), Scott, refugee refusal, 2012-05-31

Tuesday, November 06, 2012

Positive Cases April 2012

Vasquez v. Canada (Citizenship and Immigration), 2012 FC 385 (CanLII), Bédard, refugee refusal, 2012-04-02

Shaltaf v. Canada (Citizenship and Immigration), 2012 FC 386 (CanLII), O’Reilly, refugee refusal, 2012-04-02

Amit v. Canada (Citizenship and Immigration), 2012 FC 381 (CanLII), Martineau, refugee refusal, 2012-04-03

Taleb v. Canada (Citizenship and Immigration), 2012 FC 384 (CanLII), Martineau, Federal Skilled Worker refusal, 2012-04-03

Utoh v. Canada (Citizenship and Immigration), 2012 FC 399 (CanLII), Rennie, refugee refusal, 2012-04-10

Guzman v. Canada (Public Safety and Emergency Preparedness), 2012 FC 401 (CanLII), Tremblay-Lamer, PRRA refusal, 2012-04-10

Azeem, Naureen v. Canada (Citizenship and Immigration), 2012 FC 402 (CanLII), Blanchard, Immigration Division inadmissibility finding, 2012-04-11

Mugugu v. Canada (Citizenship and Immigration), 2012 FC 409 (CanLII), Campbell, refugee refusal, 2012-04-11

Daku v. Canada (Citizenship and Immigration), 2012 FC 411 (CanLII), Near, refugee refusal, 2012-04-11

Dado v. Canada (Citizenship and Immigration), 2012 FC 430 (CanLII), Campbell, refugee refusal, 2012-04-13

Canada (Public Safety and Emergency Preparedness) v. Martinez-Brito, 2012 FC 438 (CanLII), dismissed against Minister, Noël, IAD child sponsorship, 2012-04-16

Martinez Samayoa v. Canada (Citizenship and Immigration), 2012 FC 441 (CanLII), Campbell, refugee refusal, 2012-04-16

Hannoon v. Canada (Citizenship and Immigration), 2012 FC 448 (CanLII), O’Keefe, refugee refusal, 2012-04-18

El Aoudie v. Canada (Citizenship and Immigration), 2012 FC 450 (CanLII), Shore, refugee refusal, 2012-04-19

Sivakumar v. Canada (Public Safety and Emergency Preparedness), 2012 FC 455 (CanLII), Heneghan, misrepresentation, 2012-04-19

Thomas v. Canada (Public Safety and Emergency Preparedness), 2012 FC 458 (CanLII), Phelan, stay of removal granted, 2012-04-19

Maldonado Ventura v. Canada (Citizenship and Immigration), 2012 FC 463 (CanLII), Mandamin, refugee refusal, 2012-04-20

Lemika v. Canada (Citizenship and Immigration), 2012 FC 467 (CanLII), Mactavish, PRRA refusal, 2012-04-20

Lemika v. Canada (Citizenship and Immigration), 2012 FC 468 (CanLII), Mactavish, H&C refusal, 2012-04-20

Cuthbert v. Canada (Citizenship and Immigration), 2012 FC 470 (CanLII), Mandamin, H&C refusal, 2012-04-20

Palomo Diaz v. Canada (Citizenship and Immigration), 2012 FC 475 (CanLII), Shore, stay of removal granted, 2012-04-23

Talo v. Canada (Citizenship and Immigration), 2012 FC 478 (CanLII), Campbell, refugee refusal, 2012-04-24

Li, Newn Shin v. Canada (Citizenship and Immigration), 2012 FC 484 (CanLII), O’Keefe, temporary work visa refusal, 2012-04-25

Sivapathasuntharam v. Canada (Citizenship and Immigration), 2012 FC 486 (CanLII), Martineau, refugee refusal, 2012-04-25

Arevalo Pineda v. Canada (Citizenship and Immigration), 2012 FC 493 (CanLII), Snider, refugee refusal, 2012-04-30

Profitt v. Canada (Citizenship and Immigration), 2012 FC 494 (CanLII), Scott, refugee refusal, 2012-04-30

Wang, Xiao Yu v. Canada (Citizenship and Immigration), 2012 FC 495 (CanLII), O’Reilly, H&C refusal, 2012-04-30

Monday, November 05, 2012

Positive Cases March 2012

Pelaez v. Canada (Citizenship and Immigration), 2012 FC 285 (CanLII), de Montigny, refugee refusal, 2012-03-02

Lin, Lien v. Canada (Citizenship and Immigration), 2012 FC 288 (CanLII), Russell, refugee refusal, 2012-03-05

Kumarasamy v. Canada (Citizenship and Immigration), 2012 FC 290 (CanLII), Hughes, Convention Refugee Abroad class refusal, 2012-03-05

Musa v. Canada (Citizenship and Immigration), 2012 FC 298 (CanLII), Hughes, PRRA refusal, 2012-03-08

Shirazi v. Canada (Citizenship and Immigration), 2012 FC 306 (CanLII), Scott, Federal Skilled Worker refusal, 2012-03-14

Castro, Mauricio Zambrano et al. v. Canada (Citizenship and Immigration), 2012 FC 309 (CanLII), Zinn, refugee refusal, 2012-03-15

Kay Wright v. Canada (Citizenship and Immigration), 2012 FC 320 (CanLII), Rennie, refugee refusal, 2012-03-16

Arias, German Orlando Gutierrez et al. v. Canada (Citizenship and Immigration), 2012 FC 322 (CanLII), Gleason, refugee refusal, 2012-03-16

Tshibola Kabongo v. Canada (Citizenship and Immigration), 2012 FC 313 (CanLII), Rennie, refugee refusal, 2012-03-19

Ramón Levario v. Canada (Citizenship and Immigration), 2012 FC 314 (CanLII), Rennie, refugee refusal, 2012-03-19

Hernandez Cornejo v. Canada (Citizenship and Immigration), 2012 FC 325 (CanLII), Rennie, refugee refusal, 2012-03-19

Henriquez de Umaña v. Canada (Citizenship and Immigration), 2012 FC 326 (CanLII), Rennie, refugee refusal, 2012-03-20

AB v. Canada (Citizenship and Immigration), 2012 FC 330 (CanLII), O’Reilly, H&C refusal, 2012-03-20

Nguyen, Buong v. Canada (Citizenship and Immigration), 2012 FC 331 (CanLII), O’Reilly, IAD child sponsorship appeal refusal, 2012-03-20

Al Tayeb v. Canada (Citizenship and Immigration), 2012 FC 333 (CanLII), Phelan, citizenship, 2012-03-20

Holder v. Canada (Citizenship and Immigration), 2012 FC 337 (CanLII), Near, H&C refusal, 2012-03-20

Rezmuves v. Canada (Citizenship and Immigration), 2012 FC 334 (CanLII), Zinn, refugee refusal, 2012-03-21

Hamad, Nouh Hussein Abdalla v. Canada (Citizenship and Immigration), 2012 FC 336 (CanLII), Zinn, student and visitors visa refusal, 2012-03-21

Waliullah v. Canada (Citizenship and Immigration), 2012 FC 340 (CanLII), Tremblay-Lamer, refugee refusal, 2012-03-21

Flores Jacobo v. Canada (Citizenship and Immigration), 2012 FC 345 (CanLII), O’Keefe, refugee refusal, 2012-03-21

Wang, Zhang Sheng v. Canada (Citizenship and Immigration), 2012 FC 346 (CanLII), Rennie, refugee refusal, 2012-03-22

Fook Cheung v. Canada (Citizenship and Immigration), 2012 FC 348 (CanLII), Phelan, citizenship, 2012-03-22

Rahmani, Muhammed Rabiu Abdul v. Canada (Citizenship and Immigration), 2012 FC 358 (CanLII), Noël, misrepresentation, 2012-03-26

Haddad, Michael v. Canada (Citizenship and Immigration), 2012 FC 361 (CanLII), Near, citizenship, 2012-03-27

Nagalingam v. Canada (Citizenship and Immigration), 2012 FC 362 (CanLII), Russell, review of deportation order, 2012-03-27

Nara v. Canada (Citizenship and Immigration), 2012 FC 364 (CanLII), Bédard, refugee refusal, 2012-03-27

Nabizadeh v. Canada (Citizenship and Immigration), 2012 FC 365 (CanLII), Russell, Country of Asylum Class or Convention Refugee Abroad Class refusal, 2012-03-28

Osorio Garcia v. Canada (Citizenship and Immigration), 2012 FC 366 (CanLII), Barnes, refugee refusal, 2012-03-28

Teweldbrhan v. Canada (Citizenship and Immigration), 2012 FC 371 (CanLII), Mosley, Country of Asylum Class or Convention Refugee Abroad Class refusal, 2012-03-29

Salami, Amidu Olaniyi v. Canada (Citizenship and Immigration), 2012 FC 374 (CanLII), Phelan, citizenship, 2012-03-29

Positive Cases February 2012

Flores Vargas v. Canada (Citizenship and Immigration), 2012 FC 129 (CanLII), Scott, refugee refusal, 2012-02-01

Parmar v. Canada (Citizenship and Immigration), 2012 FC 133 (CanLII), Boivin, IAD refusal of parental sponsorship appeal, 2012-02-02

Singh, Avtar v. Canada (Citizenship and Immigration), 2012 FC 137 (CanLII), O’Reilly, temporary work visa refusal, 2012-02-02

Owochei v. Canada (Citizenship and Immigration), 2012 FC 140 (CanLII), Russell, refugee refusal, 2012-02-02

Vaquerano Lovato v. Canada (Citizenship and Immigration), 2012 FC 143 (CanLII), Rennie, refugee refusal, 2012-02-03

He v. Canada (Public Safety and Emergency Preparedness), 2012 FC 148 (CanLII), Rennie, PRRA refusal, 2012-02-03

Siavoosh v. Canada (Public Safety and Emergency Preparedness), 2012 FC 149 (CanLII), Shore, stay of removal granted, 2012-02-03

Lin, Shou Gui v. Canada (Citizenship and Immigration), 2012 FC 157 (CanLII), Russell, refugee refusal, 2012-02-06

Zazai v. Canada (Citizenship and Immigration), 2012 FC 162 (CanLII), O’Keefe, H&C refusal, 2012-02-07

Delgado Ruiz v. Canada (Citizenship and Immigration), 2012 FC 163 (CanLII), Harrington, refugee refusal, 2012-02-07

Williams, Erlina Mary v. Canada (Citizenship and Immigration), 2012 FC 166 (CanLII), Russell, H&C refusal, 2012-02-07

Fanado Kirby v. Canada (Citizenship and Immigration), 2012 FC 169 (CanLII), Martineau, refugee refusal, 2012-02-08

Lopez Aguilera v. Canada (Citizenship and Immigration), 2012 FC 173 (CanLII), Harrington, refugee refusal, 2012-02-08

Lopez Basurto v. Canada (Citizenship and Immigration), 2012 FC 175 (CanLII), Harrington, refugee refusal, 2012-02-08

Nagalingam v. Canada (Citizenship and Immigration), 2012 FC 176 (CanLII), Russell, danger opinion, 2012-02-08

Shkabaki v. Canada (Citizenship and Immigration), 2012 FC 177 (CanLII), O’Keefe, refugee refusal, 2012-02-08

Ahanin v. Canada (Citizenship and Immigration), 2012 FC 180 (CanLII), Russell, refugee refusal, 2012-02-08

Pinto Ponce v. Canada (Citizenship and Immigration), 2012 FC 181 (CanLII), Russell, refugee refusal, 2012-02-08

Ortega v. Canada (Citizenship and Immigration), 2012 FC 182 (CanLII), Shore, refugee refusal, 2012-02-08

Oboh v. Canada (Citizenship and Immigration), 2012 FC 186 (CanLII), Zinn, H&C refusal, 2012-02-08

Vargas Montoya v. Canada (Citizenship and Immigration), 2012 FC 188 (CanLII), Boivin, refugee refusal, 2012-02-09

Dhillon, Harminder Singh v. Canada (Citizenship and Immigration), 2012 FC 192 (CanLII), Harrington, refusal of sponsorship as a dependent, 2012-02-09

Yoon v. Canada (Citizenship and Immigration), 2012 FC 193 (CanLII), Shore, refugee refusal, 2012-02-09

Bosompem v. Canada (Public Safety and Emergency Preparedness), 2012 FC 196 (CanLII), Zinn, IAD criminal inadmissibility appeal refusal, 2012-02-10

Tran, Tam Than v. Canada (Citizenship and Immigration), 2012 FC 201 (CanLII), Lemieux, citizenship of adoptee, 2012-02-10

Huang v. Canada (Citizenship and Immigration), 2012 FC 205 (CanLII), Zinn, refugee refusal, 2012-02-10

Sun v. Canada (Citizenship and Immigration), 2012 FC 206 (CanLII), Russell, overseas H&C refusal, 2012-02-13

Obot v. Canada (Citizenship and Immigration), 2012 FC 208 (CanLII), Mosley, student visa refusal, 2012-02-13

Shahini v. Canada (Citizenship and Immigration), 2012 FC 211 (CanLII), Harrington, refugee refusal, 2012-02-14

Sandhu, Kulwant Kaur v. Canada (Citizenship and Immigration), 2012 FC 217 (CanLII), Blanchard, misrepresentation, 2012-02-15

Chajon v. Canada (Citizenship and Immigration), 2012 FC 223 (CanLII), Harrington, refugee refusal, 2012-02-17

Gordillo Munoz v. Canada (Citizenship and Immigration), 2012 FC 227 (CanLII), Scott, refugee refusal, 2012-02-20

Okbai v. Canada (Citizenship and Immigration), 2012 FC 229 (CanLII), Rennie, overseas H&C refusal, 2012-02-21

Tindale v. Canada (Citizenship and Immigration), 2012 FC 236 (CanLII), Rennie, H&C refusal, 2012-02-21

Tindale v. Canada (Citizenship and Immigration), 2012 FC 237 (CanLII), Rennie, PRRA refusal, 2012-02-21

Hussaini, Rahim et al. v. Canada (Citizenship and Immigration), 2012 FC 239 (CanLII), Mandamin, Convention Refugees Abroad and Humanitarian Protected Persons Abroad refusal, 2012-02-21

Phillip, Dwane Elon v. Canada (Citizenship and Immigration), 2012 FC 242 (CanLII), Near, refugee refusal, 2012-02-22

Hercegi, Jozsef et al. v. Canada (Citizenship and Immigration), 2012 FC 250 (CanLII), Hughes, refugee refusal, 2012-02-22

Pineda Quiroz v. Canada (Citizenship and Immigration), 2012 FC 256 (CanLII), Hughes, refugee refusal, 2012-02-23

Pulido Ruiz v. Canada (Citizenship and Immigration), 2012 FC 258 (CanLII), Scott, refugee refusal, 2012-02-24

Ali, Iftikhar et al. v. Canada (Citizenship and Immigration), 2012 FC 259 (CanLII), Rennie, refugee refusal, 2012-02-24

Ravis Cuarte v. Canada (Citizenship and Immigration), 2012 FC 261 (CanLII), Martineau, medical inadmissibility, 2012-02-27

Romero, Vanessa Arango v. Canada (Citizenship and Immigration), 2012 FC 265 (CanLII), Russell, temporary work visa, 2012-02-27

Villaneuva Diongson v. Canada (Citizenship and Immigration), 2012 FC 264 (CanLII), Zinn, live-in caregiver visa refusal, 2012-02-28

Kaur, Inderjit v. Canada (Citizenship and Immigration), 2012 FC 273 (CanLII), Noël, misrepresentation, 2012-02-28

Monroy Beltran v. Canada (Citizenship and Immigration), 2012 FC 275 (CanLII), Zinn, refugee refusal, 2012-02-29

Luna Rios v. Canada (Citizenship and Immigration), 2012 FC 276 (CanLII), O’Keefe, refugee refusal, 2012-02-29

Positive Cases January 2012

Bhuiyan v. Canada (Citizenship and Immigration), 2012 FC 117 (CanLII), Harrington, H&C refusal, 2012-01-30

Scott v. Canada (Citizenship and Immigration), 2012 FC 109 (CanLII), Zinn, refugee refusal, 2012-01-27

Shinmar v. Canada (Citizenship and Immigration), 2012 FC 94 (CanLII), O’Reilly, refugee refusal, 2012-01-24

Eze v. Canada (Citizenship and Immigration), 2012 FC 92 (CanLII), Near, citizenship, 2012-01-24

Canada (Citizenship and Immigration) v. El Bousserghini, 2012 FC 88 (CanLII), Harrington, citizenship, 2012-01-23

Acevedo Munoz v. Canada (Citizenship and Immigration), 2012 FC 86 (CanLII), Simpson, refugee refusal, 2012-01-23

Goulet v. Canada (Public Safety and Emergency Preparedness), 2012 FC 65 (CanLII), Barnes, prisoner transfer, 2012-01-19

Nintawat v. Canada (Citizenship and Immigration), 2012 FC 66 (CanLII), Scott, refugee refusal, 2012-01-18

Barua v. Canada (Citizenship and Immigration), 2012 FC 59 (CanLII), Shore, refugee refusal, 2012-01-17

Lin v. Canada (Citizenship and Immigration), 2012 FC 39 (CanLII), Rennie, IAD refusal of spousal appeal, 2012-01-16

Sarabia v. Canada (Citizenship and Immigration), 2012 FC 29 (CanLII), Rennie, PRRA refusal, 2012-01-16

Kwon v. Canada (Citizenship and Immigration), 2012 FC 50 (CanLII), Simpson, H&C refusal, 2012-01-13

Pabon Morales v. Canada (Citizenship and Immigration), 2012 FC 49 (CanLII), Simpson, PRRA refusal, 2012-01-13

Arias Sanchez v. Canada (Citizenship and Immigration), 2012 FC 46 (CanLII), Simpson, refugee refusal, 2012-01-13

Teganya v. Canada (Citizenship and Immigration), 2012 FC 42 (CanLII), Hughes, PRRA refusal, 2012-01-12

Singh v. Canada (Citizenship and Immigration), 2012 FC 23 (CanLII), Pinard, refusal of spousal sponsorship, 2012-01-10

Talpur v. Canada (Citizenship and Immigration), 2012 FC 25 (CanLII), de Montigny, Federal Skilled Worker refusal, 2012-01-09

Rodriguez v. Canada (Citizenship and Immigration), 2012 FC 4 (CanLII), Pinard, refugee refusal, 2012-01-06

Khatun v. Canada (Citizenship and Immigration), 2012 FC 20 (CanLII), Shore, stay of removal granted, 2012-01-05

Sylvester v. Canada (Citizenship and Immigration), 2012 FC 17 (CanLII), O’Keefe, H&C refusal, 2012-01-05

Corpuz Ledda v. Canada (Citizenship and Immigration), 2012 FC 14 (CanLII), Lemieux, stay of removal granted, 2012-01-04

Cetinkaya v. Canada (Citizenship and Immigration), 2012 FC 8 (CanLII), Russell, refugee refusal, 2012-01-04

X v. Canada (Public Safety and Emergency Preparedness), 2012 CanLII 75 (FC), Shore, stay of removal granted, 2012-01-04

Tuesday, September 25, 2012

Westmore—reasoning not transparent

Westmore v. Canada (Citizenship and Immigration), 2012 FC 1023 (CanLII)

Judge: Justice Russell; Date heard: June 27, 2012; Date decided: August 28, 2012; Counsel for Westmore: Michael F. Battista; Counsel for Minister: Michael Butterfield; Place of Hearing: Toronto, Ontario.

The applicant was a 70-year-old citizen of the UK, who had been with his same-sex partner since 1983. They lived common-law, splitting their time between UK and Canada on the basis of repeated renewals of visitors visas, between 1983 and 2003. At that time, the Immigration and Refugee Protection Act provisions allowing sponsorship of same-sex partners came into force, so the applicant and his partner married and submitted a sponsorship in June 2004.

Tragically, the applicant’s partner died in October 2004. The applicant was no longer a sponsored spouse, but asked the Minister to process his application on humanitarian and compassionate grounds. The application was converted into an H&C, and the applicant was granted approval in principal in August 2005: “The immigration officer reviewing that application found that there was strong evidence of community support and ties to Toronto. The Applicant had also shown that he would not be in financial difficulty if he were granted permanent residence” (para. 4).

At that point in time, the Respondent requested an updated medical exam, but for some reason there was a breakdown in communication and the applicant was not aware of this request. His H&C was therefore denied in March 2008.

The applicant filed a new H&C in November 2009, which included information on his reliance on the services of the Canadian National Institute for the Blind (CNIB), as well as the other grounds (establishment and significant connections to Canada) relied on in the first application. This application was refused in September 2011.

Justice Russell concurred with the applicant that there were two grounds of review:

… the Decision lacks transparency and intelligibility because the Officer failed to explain why she came to a negative conclusion when the Applicant’s previous H&C application was positive, and that the Officer’s various conclusions regarding insufficient evidence about support systems in the UK, and his ability to replace what he has at CNIB in the UK, are simply unreasonable given the evidence that was before the Officer. (para. 38)

Justice Russell goes on to state:

[42] A significant portion of the Officer’s reasoning relates to her finding that “there is insufficient evidence showing whether [the Applicant] has any other family in the United Kingdom or that he may have friends or acquaintances from his previous travels home that may be able to provide support.” Had the Applicant established to the Officer’s satisfaction that he had no one to return to, the outcome of the Decision might well have been different.

[43] I think the Officer’s treatment of the evidence establishing his support system, or lack thereof, was unreasonable. She found there was insufficient evidence that other family in the UK – the Officer accepted that his mother and brother were both deceased – could support the Applicant. However, it seems the Officer ignored the evidence in the Applicant’s H&C application form. Part C of the application form called on the Applicant to list his family members who were living in Canada. He listed no one. He also wrote in his Supplementary Information Form that “I have no family or friends remaining in my country of citizenship, the United Kingdom.” Further, the Applicant said that “All of my friends and support networks are in Canada,” which necessarily implies he has no support network in the UK. On both of these forms, the Applicant declared that the information he gave was true and correct.

[44] The Officer had before her sworn evidence which established a crucial aspect of the Applicant’s request for an H&C exemption. However, she concluded there was insufficient evidence to establish the lack of support. In doing so, the Officer failed to give the Applicant’s sworn statement the presumption of truthfulness which Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 establishes.

Since the Court could not determine how the Officer arrived at the decision, the decision was overturned.

Altun—ignoring evidence of a corrupt judiciary

Altun v. Canada (Citizenship and Immigration), 2012 FC 1034 (CanLII)

Judge: Justice Shore; Date heard: August 28, 2012; Date decided: August 29, 2012; Counsel for Altun: Lorne Waldman; Counsel for Minister: Rick Garvin; Place of Hearing: VIDEOCONFERENCE.

The applicant was a Kurdish citizen of Turkey, a medical doctor, who had been convicted and served a sentence for signing a certificate of sick leave. He claimed that “the charges were false, motivated by ethnic persecution in his regard” (para. 2).

Justice Shore found that the RPD had failed to consider all of the evidence, stating:

It is recognized by this Court that, if all the documents had been adequately considered, the reasons would have demonstrated, at the very least, a logical inherence derived from the analysis of significant, pertinent, detailed evidence, thus, within a framework of potential outcomes as set out by the Supreme Court… (para. 3)

The RPD appeared to be finding in favour of the applicant: “The RPD stated the matter was credible and expressed sympathy for the case. In addition, the RPD stated the allegations were trustworthy. It is difficult to understand how the RPD was of the opinion that there was not enough evidence. …” (para. 5).

However, the RPD found the applicant’s situation one of prosecution rather than persecution, despite significant evidence of corruption in the judiciary. Therefore the case was overturned.

Numbi—plausibility analysis ignoring evidence

Judge: Justice Boivin; Date heard: July 26, 2012; Date decided: August 30, 2012; Counsel for Numbi: Raoul Boulakia; Counsel for Minister: Sybil Thompson; Place of Hearing: Toronto, Ontario.

The applicants were citizens of the Democratic Republic of the Congo, whose refugee claim was refused. The principal applicant was a former employee of the Ministry of Finance who had “denounced the corruption and the embezzlement of funds carried out by the Congolese president”.

The RPD found it “implausible” that the principal applicant would be persecuted by the presidential security forces, as alleged, merely for reporting an irregularity. The RPD found it more likely that the applicant merely wanted to retire to Canada, in part because the principal applicant had taken a leave of absence and come to Canada on visitor’s visas. Despite significant evidence of human rights abuses in DRC, the RPD found that there was no evidence that the applicant had been persecuted during his long career.

Justice Boivin reaffirmed that the RPD “is entitled to make credibility findings based on implausibility, common sense and rationality” (para. 19). However, in the case at bar, “this finding is not supported by any evidence and as such,the Board could not reasonably make the implausibility finding that it did as it is not based on the documentation on record” (para. 20). In fact, the RPD had ignored evidence presented by the applicant that other state employees, politicians, journalists etc., had been killed for drawing attention to misappropriation of funds by the Congolese state.

Furthermore, the RPD ought not to have speculated about the applicant’s motivation for coming to Canada, and the RPD’s comments were unfounded (para. 23).

Dindo—Application to reopen, change of address

Dindo v. Canada (Citizenship and Immigration), 2012 FC 1040 (CanLII)

Judge: Justice Zinn; Date heard: August 30, 2012; Date decided: August 30, 2012; Counsel for Dindo: Robert I. Blanshay; Counsel for Minister: Christina Dragaitis; Place of Hearing:Toronto, Ontario.

The applicants were a family who had made a refugee claim. They were sent a Notice to Appear for a Scheduling Conference on May 12, 2011. When they did not appear at the conference (nor was the notice returned as mailed to the wrong address), the RPD sent the applicants a Notice to Appear for an Abandonment of a Claim on June 8, 2011. Again, the Notice was not returned but neither did the applicants appear. The RPD declared the claim abandoned, and sent a notice to the effect on July 5, 2011, while was likewise not returned.

The applicants had used a consultant to prepare their PIFs, and the notices had been sent to the address indicated on the PIF, including apartment number 901. However, before the Federal Court, the applicants presented evidence that the PIFs had not been translated back to them.

The applicants retained new counsel on March 28, 2011, but this new counsel did not inform the RPD (in writing) until August 16, 2011, after the decision was made. He asserted to the Federal Court that he had provided oral notice earlier, but Rule 4(4) of the RPD required such notice to be in writing.

Before the RPD, when the applicants applied to the RPD to reopen their claim, they simply asserted that they had not received the notice and that the oral notice of change of counsel was sufficient. Justice Zinn rejected these arguments.

However, before the Federal Court, Counsel for the Minister brought to the Court’s attention that the Notification of Contact Information filed by the applicants themselves, prior to filing the PIF, indicated apartment number 321. This apartment number is corroborated by their complaint to the Canadian Society of Immigration Consultants about their first counsel.

As it would appear that the applicants did not receive their notices due to an error by their first counsel, the refusal was overturned and the RPD was to rehear the Application to Re-Open.

Saturday, September 22, 2012

Olvera-Personal risk

Olvera v. Canada (Citizenship and Immigration), 2012 FC 1048 (CanLII)

Judge: Justice Shore; Date heard: August 29, 2012; Date decided: August 31, 2012; Counsel for Olvera: Nico G.J. Breed; Counsel for Minister: Rick Garvin; Place of Hearing: Calgary, Alberta.

The Applicants were citizens of Mexico who were menaced by the Los Zetas gang for extortion. He could not receive help from the police or the PGR. The state human rights commission agreed that the state had to protect him, but that they lacked the resources to do so. The Applicants therefore fled.

The RPD found that there was no nexus to the Convention because the fact that the principal Applicant owned a business did not put him in a particular social group, and that his complaints to the police and human rights commission did not mean that he was targeted for expressing a “political opinions”. Justice Shore upheld these findings.

However, Justice Shore overturned the decision on the basis of generalized risk. He noted that “The jurisprudence is less settled, however, on whether persons personally targeted by criminal gangs face a generalized risk” (para. 37).

Justice Shore relied on the decision of Justice Gleason in Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678:

[38] In the Portillo decision, above, Justice Gleason held that it was unreasonable to find that an applicant, who had been personally threatened by a criminal gang, faced a risk of general criminality simply because criminal gang violence was rampant in the applicant’s country of origin. “It is simply untenable,” she wrote, “for the two statements of the Board to coexist: if an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general.” Such an approach, Justice Gleason held would strain section 97 of the IRPA to the point of irrelevance: “If the Board’s reasoning is correct, it is unlikely that there would ever be a situation in which this section would provide for crime-related risks” (at para 36).

[39] Justice Gleason proposed the following test for determining the nature of the risk faced by an applicant. Firstly, one must assess whether the claimant “faces an ongoing or future risk ... what the risk is, whether such risk is one of cruel and unusual treatment or punishment and the basis for the risk” (at para 40). Secondly, the risk faced by the claimant must be compared to “that faced by a significant group in the country to determine whether the risks are of the same nature and degree” (at para 41).

On the case before him, Justice Shore noted in particular: “It is irrational for the Board to accept the principal Applicant’s allegations that he was specifically targeted by the Los Zetas and, yet, conclude that his particular risk was faced generally by other Mexicans” (para. 41).