Tuesday, July 27, 2010

Federal Court Key Quotes: Failure to Consider Evidence

Courtesy of Justice Russell in Champagne v. Canada (Citizenship and Immigration), 2009 FC 1204

[26] Not having regard for the totality of the evidence is an error of law. See Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652, [1980] F.C.J. No. 192. A claim in which the basic facts have been misconstrued should be set aside. Indeed, the Court has held that misconstruing evidence that forms the basis of the claim is a fundamental error. See Adamjee v. Canada (Minister of Citizenship Immigration), [1997] F.C.J. No. 1815. Moreover, a failure to mention facts that are a basis for the claim also constitutes a reviewable error. Fainshtein v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 941. The Applicants cite and rely on many cases in which a decision has been set aside based on a misapprehension of the facts. See, for example, Mbiya v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1001 and Thambirasa v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 205.

Afanasyev - inadmissibility for espionage, no need for formal relief submissions

Afanasyev v. Canada (Citizenship and Immigration), 2010 FC 737

Decision by de Montigny granting judicial review of inadmissibility under s. 34 (and refusal to grant Ministerial relief under s. 34(2)).

The Applicant served in the Soviet military from 1985 to 1987, and reported on radio transmissions; he was declared inadmissible under 34(a) and (f), namely:

engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;

…or being a member of an organisation that did so.

Justice de Montigny found that the officer’s findings on what, exactly, the Applicant did were problematic on multiple fronts. First, the officer cited both the CSIS explanation of what the Applicant allegedly did and the Applicant’s description, without dealing with discrepancies between the two accounts. Furthermore, the decision was predicated on the officer’s understanding of “espionage”, but nowhere is that understanding explained. (paras. 32-34)

Justice de Montigny also found that the officer failed to consider Ministerial relief under s. 34(2) on the sole ground that there were not formal, separate submission on relief; there had clearly been a request for relief to be considered, and there was relevant evidence on the record (paras. 38-42)

Monday, July 26, 2010

Singh (Yadwinder) - requirement for a passport to be landed

Singh v. Canada (Citizenship and Immigration), 2010 FC 757

Decision of Justice de Montigny. The Applicant sought declatory relief and mandamus, where Citizenship and Immigration Canada had refused to confirm his status as a permanent resident because he did not personally have his passport available. He did not have his passport because it had been seized (the Applicant had a receipt) and appeared to have been lost. The Applicant faced the following catch-22: without a passport he could not regularize his status, and without regularized status he could not obtain a new Indian passport (paras. 5-6). When he did obtain a passport, his clearances had expired. When he received new clearances, a new inadmissibility issue arose. The Applicant successfully argued that he should have been landed in 1998, and that subsequent issues could not therefore bar his landing.

Sandhu - skilled worker - officer must seek clarification

Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759

A decision of Justice Mandamin allowing judicial review on a refusal of a skilled worker application by Canadian High Commission, New Delhi.

On the on hand, "a Visa Officer is not obliged to notify applicants of inadequacies in their applications" (para. 25)

[33] When a Visa Officer has a doubt which has no foundation in the facts and the Applicant puts her best foot forward by submitting a complete application; the Officer should seek clarification to either substantiate or eliminate the doubt. Without seeking clarification, the Officer was in no position to do either.

Hinzman -- FCA Decision on H&C for war resisters

CanLII - 2010 FCA 177 (CanLII):

Key Quotation:
[39] My conclusion should not be seen as altering the discretion of
officers making decisions on section 25 applications, nor as giving the
appellants a “right to a particular outcome or to the application of a
particular legal test” (Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1 (CanLII), 2002 SCC 1; [2002] 1 S.C.R. 3).

[40] However, the H&C Officer had the duty to look at all of the
appellants’ personal circumstances, including Mr. Hinzman’s beliefs and
motivations, before determining if there were sufficient reasons to make a
positive H&C decision (ibidem, Chapter 5, section 11.3). She did not. Had
the Applications Judge addressed the appellants’ ground of complaint, as stated
at paragraph 57 of his Reasons, I am convinced that he would have concluded as I
do and found that the H&C decision was significantly flawed and therefore

[41] Consequently, I propose to allow the appeal and,
rendering the judgment that the Federal Court ought to have rendered, I would
set aside the decision of the Officer denying the appellants’ H&C
application and I would refer the application back for redetermination by a
different officer in accordance with these reasons.

David Mitchell on burqas

If Britain decides to ban the burqa I might just start wearing one | Comment is free | The Observer

I love this man.

Thursday, July 08, 2010

The CNN/Twitter/Hezbollah Debacle

CNN, Twitter and Why Hiding Journalists’ Opinions Is (Still) a Bad Idea - Tuned In - TIME.com

James Poniewozik has a good piece on this on his blog at TIME. My favourite part, though he doesn't pick up on it, is that when he queried CNN about their reasoning they said (and actually Nasr herself said):
It was an error of judgment for Octavia Nasr to write such a simplistic tweet about the death of Sayyed Mohammad Hussein Fadlallah.
Such a simplistic tweet? It was a tweet, for God's sake. 140 characters.

Anyway, that's leaving aside the whole problem of firing a journalist for expressing respect for a single newly-deceased leader of Hezbollah. The sooner the world accepts that both Hamas and Hezbollah are political entities that provide social services and back elected members of governments, the sooner they will have the momentum needed to end their violent activities. They, or perhaps more specifically the moderates within those parties, need an incentive to demilitarize. Having vapours every time they are mentioned in a non-terrorist capacity does not facilitate their rehabilitation.

Federal Court - Zaatreh v. Canada (Citizenship and Immigration)

Federal Court - Zaatreh v. Canada (Citizenship and Immigration)

Federal Court - Golbom v. Canada (Citizenship and Immigration)

Federal Court - Golbom v. Canada (Citizenship and Immigration)

Federal Court - Osegueda Garcia v. Canada (Citizenship and Immigration)

Federal Court - Osegueda Garcia v. Canada (Citizenship and Immigration)

Federal Court - Aguinaldo v. Canada (Citizenship and Immigration)

Federal Court - Aguinaldo v. Canada (Citizenship and Immigration)

July 2, 2010 - Parmar - positive JR on excessive demand, social services

Federal Court - Parmar v. Canada (Citizenship and Immigration)