Tuesday, May 24, 2011

Republicans have souls, Minnesota edition

From BoingBoing: Minnesota GOP legislator makes passionate speech in support of marriage equality

Few things in life will make me tear up faster than people whose politics I disagree with generally, passionately and courageously supporting a universal human right. Gives a little boost to my waning hope for the human race.

Thursday, May 19, 2011

Persaud–wrong application of Mobil Oil

Persaud v. Canada (Citizenship and Immigration), 2011 FC 31 (CanLII)

Judge: Justice Hughes

Date heard: January 11, 2011

Date decided: January 12, 2011

Counsel for Persaud: Robert Blanshay

Counsel for Minister: Brad Gotkin

Place of Hearing: Toronto, Ontario

The Applicant was a citizen of Guyana who had married a Canadian citizen and been sponsored and came to Canada as a permanent resident in October 2003 (para. 2). In September 2006, the Applicant was interviewed by a Minister’s Delegate (MD); she was not advised of the purpose of the interview, did not have counsel and was not advised that she could have counsel (para. 3). From that interview the MD produced a “Narrative Memoranda” which referred to the interview and a statutory declaration from the husband which was said to be, but was not, attached (para. 3). The MD recommended deportation.

Before the Immigration Division, the Applicant’s counsel argued that the interview was improper and that the absence of the husband’s statutory declaration was another error (para. 4).

The ID gave a written decision in June 2008 that the Applicant was inadmissible as her marriage was not genuine, or in the alternative if it had been entered into in good faith the Applicant had later failed to disclose its breakdown. The ID recognized that the interview had been conducted in breach of procedural fairness and therefore gave no weight to alleged contradictions between the evidence given at the interview and elsewhere (para. 5). Nevertheless, the ID found that either the marriage was entered into for immigration purposes, or if it had been genuine at the beginning the Applicant had failed to disclose its subsequent breakdown (para. 5).

On March 29, 2010, the IAD heard the Applicant’s appeal and decided that since the ID found the interview tainted, it ought to have sent the matter back to be re-determined (para. 6). This was especially true since, despite stating later that it was not taking contradictions from the interview into account, the ID decision explicitly referred to one such contradiction. It was this decision of the IAD, which despite its conclusion that the ID had erred dismissed the appeal, which Justice Hughes overturned.

Before rendering a decision the IAD asked for submissions on the Mobil Oil case (para. 8). The IAD held that Mobile Oil was authority for the proposition that “a breach of procedural fairness does not require a new hearing in “special circumstances” where the claim in question is otherwise “hopeless” or the outcome reached was “inevitable”” (para. 17). On that basis, the IAD found that had the ID heard the evidence properly, it still could not have done other than to dismiss the case (para. 10).

However, at the Federal Court both parties agreed that this summary was not correct:

Mobil Oil dealt with a unique set of circumstances where there was a finding of breach of procedural fairness which the Supreme Court found would have required the matter to be sent back for redetermination. However, since the matter that would have been the subject of redetermination was not the subject of the remedies sought, it was determined to be impractical to send it back. (para. 18)

Given that the dismissal was based on a fundamental misunderstanding of the law, Justice Hughes granted the judicial review and sent the matter back to be re-determined by the IAD, with a further non-binding recommendation that the IAD refer it back to the ID (para. 21).


Thursday, May 12, 2011

Raina–equivalency of offenses

Raina v. Canada (Citizenship and Immigration), 2011 FC 19 (CanLII)

Judge: Justice Heneghan

Date heard: July 13, 2010

Date decided: January 11, 2011

Counsel for Raina: Krassina Kostadinov

Counsel for Minister: Amy Lambiris, Manuel Mendelzon

Place of Hearing: Toronto, Ontario

The Applicant was a citizen of India who claimed refugee protection after coming to Canada in 2006 (para. 2).

Before coming to Canada, the Applicant had been convicted of “indecent assault” in New Zealand in December 2001, and served 2.5 years. At the same time, he was acquitted of the “more serious offence of sexual violence for the same incident” (para. 2).

Before the RPD, the Minister argued that indecent assault was the equivalent of the Canadian crime of “Sexual interference”, referring to s. 151 of the Criminal Code, which states that it could be dealt with summarily (term of 14 days to 18 months) or by indictment (term of 45 days to 10 years) (para. 4).

The RPD found the Applicant’s conviction to be equivalent to “child molestation” and stated without explanation that the punishment could be up to ten years, which the RPD found to create a presumption that the Applicant had committed a serious non-political crime. The RPD rejected the Applicant’s argument that the elements of the offense in New Zealand did not match those in s. 151 of the Criminal Code (paras. 5-6).

Justice Heneghan relied on the FCA decision of Hill v. Canada (Minister of Employment & Immigration) (1987), 73 N.R. 315 for its statement on determining equivalency:

“It seems to me that because of the presence of the words ‘would constitute an offence ... in Canada’, the equivalency can be determined in three ways: - first, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offences. Two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not. Third, by a combination of one and two.”

On the basis of Hill, Justice Heneghan found that the RPD had failed to apply the proper tests for equivalency (paras. 7-9).

Furthermore, Heneghan J. found that the RPD had erred in using the Applicant’s acquittal on the charge of “sexual violence” to determine whether the conviction was for a serious non-political crime (para. 10). Relying on Bertold v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 195, Justice Heneghan reiterated that such “references to outstanding criminal charges are inadmissible and violate the Canadian Charter of Rights and Freedoms…” (para. 11).


Friday, May 06, 2011

Sharpe–fair consideration of the evidence in medical inadmissibility, unusual remedy

Sharpe v. Canada (Citizenship and Immigration), 2011 FC 21  (CanLII)

Judge: Justice Phelan

Date heard: December 15, 2010

Date decided: January 11, 2011

Counsel for Becerra Vazquez: Mr. Michael Greene

Counsel for Minister: Mr. Rick Garvin

Place of Hearing: Calgary, Alberta

This was the second judicial review of the decision that the Applicant’s dependant son was medically inadmissible. The Applicant was the principle applicant in a Federal Skilled Worker application to immigrate from the UK (paras. 1, 3).

The Applicant’s application was commenced in January 2004. The Applicant was requested to, and did, provide medical reports on his son’s condition. In July, 2006, the medical officer (MO) provided the London visa post with an opinion that the son’s condition “might reasonably be expected to cause an ‘excessive demand on Canadian social services’” (paras. 3-5).

In about August 2006, the Applicant received a fairness letter warning them of the excessive demand opinion and inviting them to make further submissions. Therefore in October 2006, the Applicants submitted updated reports from various professionals; “All of the letters and reports were to the same effect; that Conor’s needs were such that he no longer required the health and social services earlier reports suggested he did” (paras. 6-7).

The application was refused on May 9, 2007 on the grounds of excessive demand (para. 8). The Applicant wrote to the London visa office expressing concern that the newer information had not been properly reviewed and undertaking to pay for any special schooling or social services. On May 25, 2007, the London visa office responded that the new information had been taken into consideration in the refusal (paras. 9-10).

Justice Phelan characterized the response of May 25, 2007 thusly: “This response was a barefaced falsehood” (para. 11).

The MO’s opinion, on which the refusal was based, was made in July 2006, before the receipts of various relevant documents (para. 11). The Applicant’s filed an application for judicial review which was discontinued when the Minister offered to reconsider the matter (paras. 12-13).

In October 2008, a second MO forwarded an opinion which was nearly identical to the first (para. 14). In March 2009, a second visa officer (VO) sent a second fairness letter maintaining the contention that the son was medically inadmissible (para. 15). In response, the Applicant submitted further new information on his son’s current educational placement, conditional acceptance to a private school in Alberta, and assessments of how the Alberta education system characterized his disability, e.g. as “mild” (para. 16). The 2nd MO reconsidered in view of the new evidence and forwarded an opinion that the son was not likely to be an excessive demand (para. 17).

However, the 2nd VO challenged the 2nd MO’s decision, the result of which was the 2nd MO changing opinions again, this time finding that the son was severely disabled. (paras. 18-19). The application was again refused (para. 20).

Justice Phelan stated: “There are several problems with the Respondent’s conclusion as to the nature and severity of Conor’s disability quite independent of the shabby treatment the Applicant has experienced at the London Visa Office” (para. 26).

In reviewing the decision, Justice Phelan found that the main consideration was whether the son’s disability was assessed as “severe” or “mild” under Alberta policy (para. 27). The only evidence on that particular point was a report stating explicitly that his disabilities would be considered mild; the 2nd MO could not reject this conclusion without reason (paras. 28-31). The 2nd MO had relied on another report describing the son’s disability as “significant”, but no evidence that “significant” meant “severe” in the context (para. 32). The 2nd MO’s other comments on the expense of educating the son were not relevant (paras. 33-34).

This decision is particularly interesting in that Justice Phelan notes that he is considering retaining jurisdiction to ensure that the reconsideration of the Applicant’s file “is completed as expeditiously and as fairly as possible” (para. 39). Justice Phelan further suggested “may be possible to have one person, acceptable to the parties, conduct the necessary assessment and whose report would bind both parties. The Court’s mediation role could be utilized to assist if the parties so request” (para. 40).


Becerra Vazquez–cumulative errors in assessing credibility

Becerra Vazquez v. Canada (Citizenship and Immigration), 2011 FC 9 (CanLII)

Judge: Justice Pinard

Date heard: December 2, 2010

Date decided: January 6, 2011

Counsel for Becerra Vazquez: Me Stephen Fogarty

Counsel for Minister: Ms. Sara Gauthier (student-at-law), Me Evan Liosis

The Applicant was a citizen of Mexico who worked for a newspaper. Although not a reporter, he was sent to cover a secret meeting between the Secretary-General of Guanajuato and land developers. He was discovered and threatened. A complaint was made to the Mexican Human Rights Commission. After the paper published the story, he was the victim of attempted murder, and tried to report it to the police but they did not come. Doubting the efficacy of the police, he fled to Canada (paras. 2-4).

The Applicant spoke little English when he arrived in Canada, but at the Port of Entry (POE) he was questioned without an interpreter (para. 4). The POE interview notes state that he was a reporter (para. 4).

The RPD’s decision to refuse the Applicant’s claim was based on a finding of lack of credibility, based on five points:

  1. The Applicant testified that his job was “surveiller le contenu des éditoriaux” but he lacked understanding of that position as the RPD understood it (para. 7).
  2. The POE notes state that the Applicant said he was a reporter, but in testimony before the RPD the Applicant stated that he was not a reporter per se but rather involved in the production of this problematic article (para. 8).
  3. The RPD rejected a letter from the paper stating that the Applicant had worked for them for five years on the basis that it was submitted just prior to the hearing and that fraudulent documents were easy to obtain in Mexico (para. 9).
  4. The RPD rejected the Applicant’s testimony that he worked 40 hours a week at the newspaper while pursuing a university degree (para. 10).
  5. The RPD took issue with the Applicant’s version of events after the murder attempt, namely, why he had not informed his employer and why he had bothered to inform the police at all if he did not trust them; it did not believe his testimony that he was in shock at the time (para. 11).

Justice Pinard found that the RPD had interpreted the Applicant’s job description too narrowly, and therefore had erred in doubting the Applicant’s credibility on the basis of his alleged lack of knowledge of his stated profession (paras. 17-18).

Similarly, Justice Pinard found that the RPD had placed too much weight on the specific job title cited by the Applicant in his POE notes, and therefore on doubting his credibility due to an alleged discrepancy (paras. 19-21).

Regarding the letter from the newspaper, Justice Pinard found that that RPD’s rejection of it was marred by circular logic (paras. 22-25):

The evidence relied upon to discredit the letter was the applicant’s lack of credibility and therefore the likelihood that he had obtained the letter fraudulently, and the applicant was also found not to be credible because he had no corroborative evidence once the letter was discredited. I find this to be unreasonable logic on the Board’s part, especially where the information in the letter was easily verifiable (para. 25).

Regarding the RPD’s finding that the Applicant was not credible regarding his working while pursuing a university degree, Justice Pinard did not find that the finding was unreasonable in and of itself, but in combination with the other flawed findings on credibility, the RPD’s conclusions on this point were “troubling” (paras. 26-27).

Similarly, regarding the RPD’s finding that the Applicant’s testimony regarding his actions following the murder attempt further impugned his credibility, Justice Pinard found that this was not a freestanding error, but that “the other three errors that I have identified in the Board’s credibility findings persuade me that the Board’s overall conclusion regarding the applicant’s credibility was tainted.” (paras. 28-30).


Kirichenko–failure to deal with relevant evidence on conscientious objection

Kirichenko v. Canada (Citizenship and Immigration), 2011 FC 12 (CanLII)

Judge: Justice Russell

Date heard: October 28, 2010

Date decided: January 6, 2011

Counsel for Kirichenko: Geraldine MacDonald

Counsel for Minister: Gordon Lee

The Applicant is a citizen of Russia by birth and Israel by marriage. He claimed refugee protection in Canada due to fear of returning to either country (para. 2).

The Applicant testified that he had been kidnapped by Chechen rebel in 1995 and received injuries then. In 1997 he testified against one of the kidnappers and consequently received death threats. In 1997, he had planned to testify that Russian authorities had been complicit in the kidnapping, and he believed that the authorities wanted to stop him from giving testimony. He and his wife fled to Israel, where they had a child (para. 3).

The Applicant and his wife returned to Russia in 2000 and divorced in 2001. In 2003, the Applicant was again called to testify against his kidnappers and received death threats. He testified that he appeared in court in 2005 and on the following day was attacked by three men. Later in 2005 he was the victim of an attempted hit-and-run. In 2006, he was called to testify again and again received threats, so he decided to leave Russia (para. 4).

In 2006, the Applicant travelled to Israel, where he discovered that because he had been absent for over three years, his bank accounts had been closed and his documents expired. Because he was no longer the father of a young child, he would have to serve in the Israeli military. He left Israel, spent two months in Germany without claiming asylum, and then came to Canada (para. 5).

The RPD found that the Applicant lacked credibility (para. 7), and that he had not established that he was a conscientious objector to serving in the Israeli military (paras. 6-16), in part because it found he had served in the Russian military (para. 10).

At the Federal Court, the Minister conceded that the RPD had erred in finding that the Applicant had served in the Russian military, but maintained that the rest of the analysis on Israel was sufficient to allow the decision to stand (para. 45). Justice Russell, however, found two errors (para. 46).

First, the RPD cited and relied upon a Response to Information Request (an internal research document) that had never been disclosed to the Applicant; this was not “a situation where it can be said that the RPD used a country condition document from public sources that was available to the Applicant” (paras. 47-48). 

Second, the RPD did not mention or deal with the documentary evidence that conscientious objector status was not available to males in Israel (para. 49).

These two errors rendered the decision reviewable since “the whole notion of there being a way out for the Applicant through some available option that he failed to apply for was, on this evidence, entirely illusory” (para. 51).


Thursday, May 05, 2011

Perez Mendoza–state protection analysis must be contextual

Perez Mendoza v. Canada (Citizenship and Immigration), 2010 FC 119 (CanLII)

Judge: Justice Lemieux

Date heard: November 19, 2009

Date decided: February 4, 2010

Counsel for Perez Mendoza: Alyssa Manning

Counsel for Minister: Khatidja Moloo

The Applicant was a citizen of Mexico who had applied for refugee protection in Canada and had been denied. The issue was whether he had rebutted the presumption of state protection (para. 1)

The Applicant identified his persecutors as high-ranking employees of two companies, TINEP and PEMEX. The Applicant worked for TINEP. TINEP did work for PEMEX. There was an internal investigation into whether TINEP had been paid for work it did not do, and the applicant initially cooperated with the investigation but was later told his supervisor would be dealing with the issue (paras. 2-5). 

In June 2007, the Applicant was assaulted by two men who told him to “go easy” on the investigation (para. 5). When he returned to work he was told he had been fired for tarnishing TINEP’s reputation and the political career of another PEMEX engineer involved in the scandal (para. 6). The Applicant made a complaint for wrongful dismissal, which appears to have lead to him being assaulted and threatened in a second incident (para. 7).

The Applicant now believed that the two companies were involved in a corruption scheme to funnel money towards the Institutional Revolutionary Party (IRP) and other political causes. He told a television station who covered the story. Soon he began receiving threatening phone calls, so he moved to another state. In August 2007 he was kidnapped and assaulted, and was told that it was because he had tarnished the reputation of TINEP’s owner and his son (paras. 8-10).

The Applicant made a denunciation to the police, and then again relocated. People continued to look for him. In October 2007 his car was shot at and he filed a second denunciation. He relocated again. He was advised by a lawyer to leave Mexico and he did so (paras. 11-13).

While the RPD did not doubt the Applicant’s story (para. 2), it found that he was targeted by criminals which did not provide a nexus, and furthermore that be relocating after making complaints he did not allow enough time to see if state protection would be forthcoming. Furthermore, the RPD appeared to have misapprehended the number of times the Applicant complained to authorities (paras. 14-20). As a result the RPD found that the Applicant did not “take all steps or even reasonable steps to seek protection in Mexico” (para. 23).

Justice Lemieux relied on Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94; Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC 359; and Hurtado-Martinez v. Canada (Minister of Citizenship and Immigration), 2008 FC 630 to creat a summary of the steps of analysis for this issue:

1) The state is presumed to be willing and capable of protecting its citizens (Ward).

2) Evidence of the state’s willingness to protect cannot be imputed as evidence of adequate state protection (Ward).

3) Each case is sui generis so while state protection may have been found to be available in Mexico, maybe even in a particular state, this does not preclude a court from finding the same state to offer inadequate protection on the basis of different facts (Avila).

4) The claimant is expected to have taken all reasonable steps in the circumstances to seek state protection from his persecutors (Ward, Avila). A claimant who does not do so and alleges that the state offers ineffective or inadequate protection bears an evidentiary and legal onus to convince the tribunal (Carillo).

5) This exception to the general expectation that claimants approach the state supports the principle that the claimant is not required to put himself in danger in order to demonstrate ineffectiveness (Ward, Avila).

6) Where a tribunal determines the applicant has failed to take steps to seek protection this finding is only fatal to the claim if the tribunal also finds that protection would have been reasonably forthcoming. A determination ofreasonably forthcoming requires that the tribunal examine the unique characteristics of power and influence of the alleged persecutor on the capability and willingness of the state to protect (Ward, Avila, Heurtado-Martinez).

7) Similarly, where a non-state actor is alleged to have persecuted the claimant, the tribunal must examine the motivation of the persecuting agent and his ability to go after the applicant locally or throughout the country, which may raise the question of the existence of internal refuge and its reasonableness (Avila).

8) The kind of evidence that may be adduced to show that the state protection would not have been reasonably forthcoming includes: testimony of similarly situated persons, individual experience with state protection and documentary evidence (Ward).

9) The standard of proof is balance of probabilities (Carillo).

10) The quality of such evidence will be raised in proportion with the degree of democracy of a state (Avila).

11) The degree of democracy may be lowered if the state tolerates corruption in its institutions (Avila).

12) Evidence of remedies for corruption is not evidence of their practical effect (Avila). In order to neutralize impact of corruption on the evidentiary analysis, the Board must determine that these remedies have a positive practical effect.

13) The evidence must be relevant, reliable, and convincing to satisfy the trier of fact on a balance of probabilities that the state protection was inadequate (Carillo). (para. 33)

Justice Lemieux applied the principles above and found that the RPD had made two errors. It had ignored the Applicant’s explanation of why he had to leave the jurisdictions following his filing of complaints, and it did not make an analysis of whether state protection would have been reasonable forthcoming in the Applicant’s circumstances (paras. 39-43).


Kaleja–failure to properly consider country conditions and discrimination versus persecution

Kaleja v. Canada (Citizenship and Immigration), 2010 FC 252 (CanLII)

Judge: Justice O'Keefe

Date heard: October 14, 2009

Date decided: March 4, 2010

Counsel for Kaleja: Max Berger

Counsel for Minister: Kevin Doyle

The Applicants were a father and daughter from the Czech republic of Roma ethnicity who had claimed refugee protection in Canada, and their claims had been denied by the RPD (para. 1).

Both Applicants had a history of being discriminated against in the Czech Republic because of their ethnicity, and the father had been attacked by skinheads (paras. 3-8).

The crux of the Applicants’ case was that the Board had erred in its understanding of the fact that they were not represented by counsel, in its analysis of the cumulative discrimination amounting to persecution, and in its analysis of country conditions (paras. 9-11).

The RPD decision contains a single paragraph on the general conditions for Roma in the Czech Republic, and then finds that the past experiences of the Applicants did not meet that threshold. Justice O’Keefe found that “This does not respect the requirement of an ‘existence of justification, transparency and intelligibility within the decision-making process’…” (paras. 21-22). For the Member to have properly found that the Applicants experienced only discrimination and not persecution, he or she would have had to “sufficiently distinguish persecution from what the applicants experienced” (para. 23) and properly address the country conditions documents (para. 24), since the Member did come to the conclusion that they were members of a persecuted group (para. 25).


All Immigration Law Posts To Date

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

Champagne v. Canada (Citizenship and Immigration), 2009 FC 1204 (quote only)

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

Gurshomov v. Canada (MPSEP), 2010 FC 1212

Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (quote only)

Huang v. Canada (MCI), 2010 FC 1217

Kadah v. Canada (MCI), 2010 FC 1223

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

Pusat v. Canada (Citizenship and Immigration), 2011 FC 428

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

Sapru v. Canada (Citizenship and Immigration), 2011 FCA 35

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

Zemo v. Canada (Citizenship and Immigration), 2010 FC 80