Friday, December 17, 2010

Kadah—failure to consider relevant evidence

Kadah v. Canada (MCI), 2010 FC 1223

Issued: December 3, 2010

Presiding: Justice O’Keefe

For the Applicant: Michael F. Battista

For the Minister: Amy King

This case was a judicial review of a finding that the Applicant, a homosexual Arab Israeli, was not a refugee on the basis that there was sufficient state protection in Israel.

There was no question of the Applicant’s credibility, or that he had faced violent persecution. However, the Board found that Israeli law enforcement would have been willing and able to protect him, and the fact that he was rebuffed the only time he sought help was not a good enough reason for him to have not continued to seek help.

Justice O’Keefe recognized the presumption of state protection, particularly in democratic countries, but also notes that “…democracy alone does not ensure adequate state protection and the Board must consider the quality of the institutions providing that protection (see Katwaru v. Canada (Minister of Citizenship and Immigration) 2007 FC 612 at paragraph 21)” (para. 39).

While the Applicant’s single negative experience with he police was not sufficient to rebut the presumption of state protection, the Board had before it documentary evidence of similarly situated individuals who also were unable to access state protection. While the Board is presumed to have considered all evidence put before it, “where there is important material evidence that contradicts a factual finding of the Board, it must provide reasons why the contradictory evidence was not considered relevant or trustworthy” (para. 43). The Board stated that “‘there is no evidence to suggest that police are not responsive to or fail to investigate complaints by members of the Arab community’” (para. 45), when in fact there was “extensive documentary evidence before the Board regarding Israeli police violence and intolerance towards Arab Israelis and Palestinians” (para. 46). The Board also found that “‘there is no evidence of persecution in Israel based on sexual orientation and, in fact, there are specific laws prohibiting discrimination on such a basis’” (para. 47), which contradicted with the Board;s finding that the Applicant’s testimony of his experiences was credible, as well as documentary evidence of persecution (paras. 48-49).


Thursday, December 16, 2010

Gurshomov–failure to consider relevant circumstances on deferral

Gurshomov v. Canada (MPSEP), 2010 FC 1212

Issued: December 1, 2010

Presiding: Justice Phelan

For the Applicant: Aviva Basman and Jennifer Egsgard, Refugee Law Office

For the Minister: Laden Shahrooz

The Applicant entered Canada with her husband and children in 2003. Their refugee claim was denied, and an H&C application was filed in May 2004 by the husband (para. 2). In 2008, the Applicant separated from her husband and filed and H&C in her own case. This H&C was denied in February 2009, concurrently with a PRRA denial. The Applicant understood that she had received a negative PRRA, but did not understand that the H&C was also denied (paras. 3-4).

Counsel and the Applicant checked the CIC case status website in April 2009 and it stated that there was an H&C pending. Since the husband’s H&C had been denied earlier that year, they took the status to mean that the Applicant’s H&C was still pending. Furthermore, they contacted CIC, and were told that the H&C was still pending and that progress required the payment of fees. As instructed, the fees were paid and further submissions were made on May 8, 2009, followed by additional submissions on May 28 and July 22, 2009 (paras. 5-6).

On July 24, 2009, the Applicant requested a deferral of removal on the basis of the “pending” H&C, which deferral was requested August 14, 2009 (para. 7).

Only on March 25, 2010 was the Applicant made aware of that the H&C had, in fact, been denied in February 2009—she was informed in the context of a removal itinerary (para. 8). She filed a third H&C and shortly thereafter requested another deferral, which was denied. The request was made in part on the risk to the Applicant and her children if returned to Israel where her abusive husband now lived. The Officer focussed on the ability of the children to adjust to the move, and did not address a custody order in favour of the Applicant nor the evidence that it would not be respected in Israel (paras. 9-12).

The Court noted the timeliness of filing and status of an H&C were relevant factors (para. 15). The Court stated that the Officer should have considered the circumstances of the late filing of the third H&C, as well as the fact that because of the miscommunication from CIC, the evidence on the personal risk to the Applicant, addressed only in the submissions which in fact post-dated the refusal, had not been considered (paras. 13-17). The Court held that this was an instance where the Officer failed to address relevant considerations (referring to Simoes) and where “special considerations” were also present (referring to Baron).


Huang–lack of procedural fairness in renewing a temporary residence/study permit

Huang v. Canada (MCI), 2010 FC 1217

Issued: December 2, 2010

Presiding: Justice Phelan

For the Applicant: Mario Bellissimo

For the Minister: Nicole Paduraru

The Applicant was a student from Taiwan who had been in Canada on temporary status since 1997 when he was 12 years old. The judicial review was of the denial of his most recent request for an extension of his temporary resident permit and study permit.

The Applicant had been under permit from 1997 until July 2005, when a request for extension was denied for the first time. Attempts to renew were made, one pursuant to a different quashing order, finally resulting in a renewal in May 2008 until October 2008. The Respondent asserted, but the evidence was not clear, that in May 2008 the Applicant was told that when that permit expired he would have to leave Canada and re-apply outside the country (paras. 2-4).

The Applicant was in fact granted another extension until August 2009, which was accompanied by a written warning that it was “expected” that he would leave Canada upon expiry, but making reference to re-application procedures both from inside and outside Canada. An extension request made before the expiry of that permit was denied, ostensibly because the Applicant had been told he must leave Canada twice and had not complied (paras. 5-6).

The Court found that the “reasons in this case are inadequate because of a) factual error, and b) non disclosure of a key rationale for the decision” (para. 13).

The Officer relied on the Applicant twice failing to comply with instructions to leave Canada, but the evidence did not establish the first caution, and the second “is of dubious nature” (paras. 14-16).

The Respondent Minister also sought to bolster the Officer’s reasons with an additional, and unsupportable rationale:

[18] Further, the “reasons” advanced by the Respondent were said to be contained in the FOSS notes. However, in reply to the Applicant’s affidavit in this matter, the Respondent filed an affidavit of the Officer which in part further explains the reasons for decision. This alone is improper but the Applicant was prepared to live with this procedural faux pas.

[19] The reason for the Applicant’s position is that the affidavit contains further reasons for the decision not previously disclosed. The most critical of which is the Officer’s assumption that the Applicant could leave Canada and reapply from another country – the U.S.

[20] Not only was this assumption or rationale not part of the “reasons”, it ignored the restriction on entry into the U.S. imposed on citizens of Taiwan, particularly those with no status in the outgoing country. This is not a simple case of swinging by Buffalo and dropping off one’s application. The Officer failed to consider that the Applicant would have to return to Taiwan and the consequences thereof.

The Court found that the precise nature of the breaches of procedural fairness did not need to be determined, since it was clear that there were such breaches (paras. 17 and 21).

The Applicant requested but was denied costs.