Friday, October 01, 2010

Kaur – failure to consider all evidence on H&C

Kaur v. Canada (Citizenship and Immigration), 2010 FC 805

The applicant was a widow in her seventies who had moved to Canada to be with her children after the death of her husband. The decision under review was to not grant her permanent residence from within Canada on H&C grounds.

In his reasons, the Officer had stated: “I do not believe that this person would suffer an unusual, undue or unwarranted inconvenience if she had to file her application for permanent residence from abroad as is provided for by the Canadian Immigration Act. The difficulties she will face will flow directly from her wish to remain illegally without the proper documentation in Canada; it is as simple as that.” (para. 17, emphasis added)

Justice Bedard relied on Hinzman v. Canada (Minister of Citizenship and Immigration), 2010 FCA 177 and found:

[18] The officer reached his conclusion on hardship on the basis of one consideration only: the hardship that she might suffer is the result of her own action. He did not address the question of whether the hardship would “have a disproportionate impact on the Applicant due to her personal circumstances”. I am of the view that the officer failed to address the Applicant’s personal circumstances which were central to her H&C application. The immigration officer has discretion as to the weight to be given to the personal circumstances raised by an applicant, but he cannot fail to have regard to the applicant’s personal circumstances.  

Furthermore, the Officer failed to provide adequate reasons.

Judge: Bedard

Date decided: August 5, 2010

Counsel: Andrea Snizynsky (for the applicant), Thi My Dung Tran (for the Minister)

Zemo – PRRA refusal errors on new evidence and no hearing

The applicant, a female former refugee claimant from Eritrea, made a pre-removal-risk-assessment application on the basis that she was a member of the Eritrean Liberation Front and a member of an unregistered church, and as such would be at risk if returned to Eritrea. Both grounds had previously been advanced and rejected. She also made a third, new argument, that she would be at risk as a returned refugee claimant.

The Officer rejected the evidence that the applicant was a member of an unregistered church, despite evidence submitted by the applicant:

[17] In the present circumstances and reading the decision as a whole, the Officer’s decision could only stand if the Applicant’s evidence of membership was not believed. There was more than sufficient evidence as to the risk to members of unregistered churches and there was sufficient evidence, if believed, to establish the Applicant’s membership in that type of church.

[18] Therefore, the Officer, having decided the issue on credibility, failed to consider whether a hearing should be held. The Applicant is not entitled per se to a hearing but the Minister is required to consider whether to have a hearing. In that respect there was an error of law because the Officer never turned her mind to that issue. …

The Officer also failed to properly consider the ground of being a returned refugee claimant, which was not raised before the RPD.

Judge: Phelan

Date decided: August 4, 2010

Counsel: Micheal Crane (applicant), Daniel Engel (Minister)

Diaz – refugee board fails in credibility analysis

Diaz v. Canada (Citizenship and Immigration), 2010 FC 797

In a case of a family from Colombia, Justice Zinn found that the RPD’s decision on negative credibility could not stand. The principal applicant testified that she could not be sure if the agents of persecution were FARC or a drug cartel, but this was not relevant to an assessment of risk under s. 97 (para. 19). The Board could have found her testimony regarding the murder of her husband’s co-worker to be not relevant, since she was not sure of the perpetrator, but the Board was wrong to call this “embellishment” (para. 20). The Board also made several straightforward factual errors, which while not reviewable in and of themselves, “cast some doubt on the thoroughness and accuracy of the Board’s assessment in its totality” (para 21). The Board focussed on whether or not FARC was targeting the applicants, to the exclusion of a complete analysis of the case and the risks. The Board also erred in finding there was an IFA to Colombia. Finally, the Board relied on cases and on the argument that the applicants were exposed to generalized risk, but failed to make an explicit finding of generalized risk.

Judge: Justice Zinn

Date decided: August 4, 2010

Counsel: Jack Davis for Applicants, Ladan Shahrooz for Minister.