Thursday, June 23, 2011

Muhari—considering the totality of evidence and discrimination in refugee case

Muhari v. Canada (Citizenship and Immigration), 2011 FC 27 (CanLII)

Judge: Justice Scott

Date heard: December 15, 2010

Date decided: January 12, 2011

Counsel for Muhari: Michel Le Brun

Counsel for Minister: Emilie Tremblay

Place of Hearing: Montréal, Quebec

The principal Applicant and his family were of Hungarian ethnicity but Serbian citizenship. They arrived in Canada on visitors visas in January 2008. In February 2008, Kosovo declared independence from Serbia, heightening the Applicants fears of persecution based on their ethnicity (paras. 2-5).

The Refugee Protection Division (RPD) found the Applicants credible but rejected their claim on the basis that they had suffered discrimination, not persecution (para. 7).

Justice Scott reiterated the settled law that the RPD must consider all the evidence on an issue and if rejecting evidence must provide an explanation (paras. 13-15).

In the Applicant’s case, the panel referred to a piece of documentary evidence which, on the whole, supported their case; however, the panel referred only to a part of the document which supported the panel’s conclusions (para. 16). Justice Scott stated that while it was true that the panel did not have to explicitly refer or respond to each piece of documentary evidence, but added “However, where the evidence deals with an element that is crucial to the dispute, the panel’s obligation is quite different. It must refer to that evidence and explain why it did not accept it (Singh v Canada (Minister of Citizenship and Immigration), 2009 FC 485 (CanLII), 2009 FC 485, [2009] FCJ No. 616 (QL) at paragraph 15).”

Justice Scott also found that the panel had failed to consider the cumulative effect of severe discrimination, which may amount to persecution (paras. 23-25).


Premaratne—unusual remedy

Premaratne v. Canada (Citizenship and Immigration), 2011 FC 30

Judge: Justice Snider

Date heard: January 11, 2011

Date decided: January 12, 2011

Counsel for Premaratne: T. Viresh Fernando

Counsel for Minister: Kareena R. Wilding

Place of Hearing: Toronto, Ontario

The Applicant was a 28-year-old citizen of Sri Lanka who applied for a study permit to allow her to come attend an eight-month course at George Brown College (para. 1). The Officer denied the request, in part due to a misapprehension of the evidence on the Applicant’s uncle in Canada (para. 2).

This case is unusual in that the Respondent conceded the error and submitted that the appropriate remedy would be to send the application back to be re-determined by a different Officer (para. 3). This is, in fact, the default remedy in immigration judicial reviews (para 5).

The Applicant, however, requested a range of additional remedies:

1. An order directing the Respondent to reconsider the Applicant’s application for a student visa within 30 days of order;

2. An order that, if the Respondent has any concerns with respect to the Applicant’s application, the Applicant be apprised of those specific concerns in writing, within three days, and the Respondent provide the Applicant 15 days in which to respond in writing;

3. An order that the Applicant not be charged additional fees;

4. An order that the Respondent shall adopt non-arbitrary and unbiased criteria for evaluation of student visa;

5. An order that the Respondent adopt procedures to ensure that the decision making process is free of ethnic and religious bias and those procedures be made available forthwith to the Applicant and publicized in Sri Lanka;

6. An order that the Respondent shall not permit the opinions or advice of locally engaged staff, with respect to the authenticity of a visa application, be relied upon by any designated decision maker;

7. An order that all visa applications be made only by properly trained and qualified Canadian visa officers;

8. An order prohibiting the Respondent from defacing passports of persons refused a visa; and

9. An order for costs. (para 4)

Justice Snider noted that re-determination is the default remedy, and stated that she was not prepared to order any of the additional remedies, except an order that the Applicant not be required to pay additional fees (para. 6). Justice Snider also gave her opinion of the other remedies requested:

Regarding #1, she would not so order because the applicant bears the burden of supporting the application, and the case law was already clear as to when an officer must provide the applicant with a chance to respond (para. 8.1).

Regarding #2, Justice Snider found that it was not proper for the court to make an order about the timing of the decision, particularly as the original decision had been made in a timely fashion (para. 8.2).

Regarding #4, Justice Snider declined to make an order that amounted to ordering the Respondent to make a legally valid decision: “It is presumed that the visa officer who decides this matter will make a determination in an impartial, unbiased manner having regard to all of the evidence, the Respondent’s Guidelines and the existing jurisprudence. That is simply a matter of law and common sense; no order is required or appropriate.” (para. 8.4)

Regarding #5, Justice Snider declined to make an order as there was no information before her that visa officers were unqualified or untrained.

Regarding #6, Justice Snider stated that she was not persuaded that the Officer “relied on, or was unduly influenced by, ‘the opinions or advice of locally engaged staff’” (para. 8.6).

Regarding #7, the request for costs, she found there were no “special reasons” as required by the Federal Courts Immigration and Refugee Protection Rules (para. 8.7).

While finding in the Applicant’s favour, Justice Snider also expressed concern with the allegations made by the Applicant towards the Officer, e.g. of criminality and perjury (paras. 10-13).