Friday, September 30, 2011

Perez Villegas—failure to conduct proper analysis of membership or terrorism

Perez Villegas v. Canada (Citizenship and Immigration), 2011 FC 105 (CanLII)

Judge: Justice O’Keefe

Date heard: September 21, 2010

Date decided: February 2, 2011

Counsel for Perez Villegas: Lorne Waldman

Counsel for Minister: Angela Marinos

Place of Hearing: Toronto, Ontario

Decision Under Review: refusal of permanent residence on the basis of inadmissibility (s. 34(1)(f))

The Applicant was a citizen of Mexico who in the mid-1990s had raised money and supplied for the indigenous people of Chiapas; he gave these material to Ejercito Zapatista de Liberacion Nacional (EZLN) for distribution, since the Mexican Army has cut off access to the region (para. 4). The Applicant was threatened and sought asylum in Canada, which was granted in 1998 (para. 5). He stated on both the Personal Information Form for his refugee case, and on the application form for permanent residence (PR), that he was a member of EZLN (para. 6). His PR  application was approved in principle in December 1998, however, the ensuing background check took ten years and he was eventually called in for an interview in June 2009 (para. 7).

The officer found that EZLN was a group about whom there were reasonable grounds to believe that they had engaged in terrorist activities, and that while the Applicant was not a formal member he was a member, although the officer did acknowledge “that the applicant worked with the EZLN because it was the only network which could deliver supplies to the poor in Chiapas” (paras. 9-20).

Justice O’Keefe found that the officer had erred in that his reasons “did not explain how his findings amount to membership based on the jurisprudence or the CIC enforcement manual definition of membership”, but rather relied on the Applicant’s previous statements that he was a member (para. 48). The officer made factual findings about the Applicant’s relationship with EZLN but provided no analysis as to whether or how they contributed to a finding of membership (paras. 49-50). Noting that “any finding of inadmissibility ‘should be carried out with prudence, and established with the utmost clarity’”, Justice O’Keefe found that the officer’s finding was unreasonable (para. 51, citing Daud v. Canada (Minister of Citizenship and Immigration), 2008 FC 701).

Similarly, on the issue of whether EZLN was a terrorist organization, Justice O’Keefe found that the officer had erred in simply stating the definition of terrorism from Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 and then asserting that EZLN’s activities fit that definition (para. 56).

There is a two-step analysis: “First, the decision-maker must show the evidentiary foundation to support a finding that an organization was engaged in acts of terrorism” (para. 54, citing Daud; Jalil v. Canada (Minister of Citizenship & Immigration), 2006 FC 246; Fuentes v. Canada (Minister of Citizenship and Immigration),2003 FCT 379; and Alemu v. Canada (Minister of Citizenship and Immigration), 2004 FC 997)

In the second step, “…the decision maker must provide analysis of the acts the organization has committed and explain how they meet the definition of terrorism. This requires showing the link between the acts and the definition of terrorism provided” (para. 55, citing Naeem v. Canada (Minister of Citizenship and Immigration), 2008 FC 1735, and Fuentes).

Justice O’Keefe found that this analysis was not done:

Even if this Court reviews the officer’s assessment of the EZLN from the previous section, which was not part of his terrorism analysis, the officer does not indicate which evidence he is relying on to conclude that terrorist acts occurred. Moreover, there is no discussion at any point about how any acts of the EZLN were “. . . intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict . . .” …. In fact, the officer mentions civilians only twice in the assessment of the EZLN, both times to note that civilians were killed. He does not analyze how these civilians were killed, by whom, or whether the EZLN condoned or encouraged the killing. The officer mentions one report that said the EZLN had killed non-combatants but, again, the officer did not assess whether they were targeted or intentionally killed. As in Fuentes above, while the officer described some violent acts in the section entitled assessment of the EZLN, he does not show how these acts fit within the Suresh above, definition of terrorism (para. 57).


Oliveros Rubiano—no need to exhaust state protection if reasonable efforts made

Oliveros Rubiano v. Canada (Citizenship and Immigration), 2011 FC 106 (CanLII)

Judge: Justice O’Keefe

Date heard: September 22, 2010

Date decided: February 2, 2011

Counsel for Oliveros Rubiano: Jonathan E. Fedder

Counsel for Minister: Kareena Wilding & Veronica Cham

Place of Hearing: Toronto, Ontario

Decision Under Review: negative pre-removal risk assessment

The Applicant fled Colombia with his family, after having become the target of an extortion scheme by the Revolutionary Armed Forces of Colombia (FARC), and having reported it to the Colombian army (para. 4). He suffered detention, threats, the murder of family members, and in 2005 he himself was shot, which he reported (paras. 4-5). The family fled to Ecuador in September 2005, but upon finding out that there was no assistance with food, shelter, or legal counsel, the returned to Colombia (para. 6).

In April 2006, the Applicant and his family entered the United States as visitors (para. 7). They travelled to the Canadian border but the Applicant was denied eligibility to make a refugee claim in Canada because of the Safe Third Country Agreement. He applied for but was refused asylum in the US, and he subsequently crossed the border illegally and made a claim in Canada which was also refused (para. 7).

In November 20098 the Applicant filed a pre-removal risk assessment application and expressly requested an oral hearing (para. 8).

The officer found that the Applicant had not submitted sufficient evidence that he had been or was targeted, or that he had a similar situation to his cousins who had been murdered (paras. 9-10). The officer gave little weight to the affidavits of his mother and cousins, finding that they were interested parties and that their evidence was not supported by the objective evidence (para. 11). The officer found the Applicant had not demonstrated subjective fear, in that he had returned to Colombia from Ecuador (para. 12). Furthermore, the Applicant still had family in Colombia who had not been targeted, and failed to show a lack of state protection (paras. 13-14).

Citing Farias (Farias v. Canada (Minister of Citizenship and Immigration),2008 FC 1035, cited at para. 34), Katwaru (Katwaru v. Canada (Minister of Citizenship and Immigration) 2007 FC 612, cited at para. 35), and Gilvaja (Gilvaja v. Canada (Minister of Citizenship and Immigration), 2009 FC 598 cited at para. 38) Justice O’Keefe found that the PRRA officer had “erred in law by requiring the applicant to show that he had exhausted all avenues of state protection”, since the Applicant had shown that he had made reasonable efforts to no avail (para. 39).


Dobson—ignored evidence of genuine marriage

Dobson v. Canada (Citizenship and Immigration), 2011 FC 121 (CanLII)

Judge: Justice Heneghan

Date heard: November 10, 2010

Date decided: February 2, 2011

Counsel for Dobson: David Matas

Counsel for Minister: Aliyah Rahaman

Place of Hearing: Winnipeg, MB

The Applicant applied for judicial review of a decision of the Immigration Appeal Division upholding a visa officer’s decision refusing the permanent resident application of her sponsored spouse (para. 1).

The Applicant was a Canadian living in Edmonton. The spouse, Mr. Ali, was a 40-year-old citizen of Egypt. He had been married before; his first marriage was in Egypt and he had one child from it, his second marriage was in the United States in an apparent attempt to get status there, and his third was a common-law marriage with a woman with whom he had three children, and during which he fathered a fourth child with his first ex-wife (paras. 2-4).

The Applicant met her husband in September 2006 and their relationship began soon after.  She visited him in New York. He was not able to obtain a visa to visit her in Canada. They married in March 2007 and their application was refused in January 2008 on the basis that it was not a genuine marriage (paras. 5-7).

The Applicant and her husband maintained written and telephonic contact and she visited him seven times between March 2007 and August 2008. Their daughter was born in October 2008 in Edmonton; at which time Mr. Ali had moved back to Egypt (paras. 8-9). The IAD hearings took place in May, July, and August 2009, and in August 20098 the Applicant and daughter visited Mr. Ali and his family in Egypt (paras. 10-11).

The IAD considered the daughter and the evidence of ongoing contact, and nevertheless found that the marriage was not genuine (paras. 12-13). Justice Henghan found the IAD made factual findings that were “unreasonable, as they lack justification and intelligibility” (para. 16).

The IAD found the Applicant and her husband “had not addressed their religious incompatibility” (para. 17). She was a casually observant member of the United Church, and he was a non-practising Muslim (para. 18). They testified that there plan was to expose their daughter to both religions and allow her to choose; Heneghan found there was sufficient evidence that they has “addressed their religious differences”, such as they were, and that the IAD’s conclusion on this point was unreasonable (para.  19).

The IAD found that the Applicant had not discussed her husband’s fathering a child with his ex-wife; Henghan found to the contrary that the Applicant had testified that she had specifically discussed this with him (paras. 20-21).

The IAD found that “the Applicant and Mr. Ali had not discussed their future plans, and that the Applicant had not taken sufficient steps to integrate Mr. Ali into her life” (para. 22). Heneghan found that there was evidence of discussion of future plans and of integrating their finances, and that given the fact the Mr. Ali lived outside of Canada, “it is not clear how the Applicant would have further integrated Mr. Ali into her daily life” (paras. 23-24).


Beharry—failure to assess actual adequacy of state protection, not merely efforts made

Beharry v. Canada (Citizenship and Immigration), 2011 FC 111 (CanLII)

Judge: Justice Mactavish

Date heard: January 27, 2011

Date decided: February 1, 2011

Counsel for Beharry: Krassina Kostadinov

Counsel for Minister: Veronica Cham

Place of Hearing: Toronto, Ontario

The Applicant and her two children, citizens of Guyana, filed an application for pre-removal risk assessment. a previous refugee claim had been rejected on the grounds that state protection was available, although the RPD believed that they had been subjected to “brutal home invasion, during which Ms. Beharry was physically and sexually assaulted” (para. 1). The PRRA Officer rejected the application on the basis that state protection was available (para. 2).

The family submitted evidence that the situation in Guyana had worsened since their refugee hearing (para. 5). The officer reviewed the  evidence and ‘concluded that the government of Guyana had “made efforts’ to address crime in Guyana” (para. 8). Justice Mactavish found that it was an error for the officer to focus on whether the government was making efforts, when he ought to have assessed “whether those efforts have actually translated into adequate state protection” (para. 9, citing Carillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94). Furthermore, Mactavish found that the evidence did not lead to a reasonable finding that there was adequate state protection.


Tuesday, September 20, 2011


Dhondup v. Canada (Citizenship and Immigration), 2011 FC 108 (CanLII)

Judge: Justice Near

Date heard: January 19, 2010

Date decided: January 31, 2011

Counsel for Dhondup: Geraldine Sadoway

Counsel for Minister: Michael Butterfield

Place of Hearing: Toronto, Ontario

The Applicant applied for a writ of mandamus to compel the Minister to make a decision on the application for temporary residence permits for his de facto dependents (paras. 1-3).

The Applicant was an ethnic Tibetan from India, who obtained refugee status in July 2002 and became a permanent resident in May 2003. He attempted to sponsor his wife, their daughter, and two children from an “alleged” previous common law relationship, Yonten and Yeshi (para. 4). These last two were the subject of the present application.

In July 2003, the sponsored family attended an interview, where an officer expressed doubt about the relationship between the Applicant and Yonten/Yeshi and requested DNA testing (para. 5). The Applicant was surprised to discover that he was not their biological father (para. 6). The children were therefore excluded, but the Applicant re-submitted the application on the basis that they were de facto family members (para. 7-8).  The Applicant was informed that the application was closed, filed an application for judicial review, and the case was settled with an undertaking from the Minister to re-consider (paras. 9-10). The new application was submitted May 2005 (para. 10).

At that point, confusion arose about the application, wherein the visa post seemed to assume that the Applicant intended to adopt the children (paras. 11-16). According to the Minister, the application—as children intended to be adopted—was finalized in June 2006 and there was an interview in November 2006 (paras. 16-17). The Applicant continued to attempt to clarify the matter, stating that among other issues, he could not afford to formally adopt the children (para. 18).

Further confused communications were exchanged between winter 2006 and summer 2008 (paras. 19-22). The Minister only became clear that the Applicant wanted the application processed as an H&C and not an adoption in June 2008 (para. 22-23). The Applicant could not obtain adoption from the Indian government because they found he was already the children’s legal guardian and parent (paras. 24-25).

Further communications continued to be exchanged between summer 2008 through winter 2010, with the Minister not understanding or ignoring the Applicant’s submissions (paras. 26-29). In September 2009, the Applicant made a formal request for TRPs (as opposed to the permanent residence) (paras. 27-29). The Minister continued to not understand the situation (paras. 29-33).

In the decision, Justice Near summarizes the case law on mandamus (paras. 35-36).

The Minister noted that the Applicant had never filed a death certificate for his wife, but Justice Near disregarded that argument since it was never brought to the Applicant’s attention until the court materials were filed (para. 39). He finds that the passage of additional time would be unlikely to clear up the Minister’s concerns (para. 40). The Minister argued that it cannot accept the Indian court’s finding that the Applicant is the children’s biological father, since this is not the case; however, Justice Near points out that the Indian court only said that the Applicant was the father (paras. 42-43).

Justice Near found that all conditions precedent were met (para. 44).

Justice Near then turned to the facts of the case, and found that the delay was indeed unreasonable (paras. 45-53). The Minister’s argument that there are special circumstances is no excuse, given the Applicant’s repeated submission of the accurate and material evidence and applications.


Davis—failure to assess hardship, ignoring psychological evidence

Davis v. Canada (Citizenship and Immigration), 2011 FC 97 (CanLII)

Judge: Justice Mactavish

Date heard: January 26, 2011

Date decided: January 27, 2011

Counsel for Davis: Michael Crane

Counsel for Minister: Laoura Christodoulides

Place of Hearing: Toronto, Ontario

The Applicant was a failed refugee claimant from St. Vincent; the RPD did not take issue with the history she presented of “significant physical and sexual abuse as a young child” (paras. 1-4). Her H&C/PRRA, which included psychological reports, argued that she would suffer a deterioration of her mental health if removed and if separated from her father who lives in Canada.

A previous application had been denied, and that decision was overturned on judicial review in 2009 (paras. 5-7). That decision was overturned because the officer had relied on a WHO document not put to the Applicant.

In this second decision, the new officer “committed precisely the same error as the first Officer” (para. 9). The second officer relied on a different report, this one from the Pan American Health Organization, which was sufficiently detailed and technical that it ought to have been put to the Applicant (paras. 8-10). This was implicitly contrasted with human rights reports which are general and do not need to be put to the applicant.

Furthermore, the Applicant had put evidence before the PRRA officer which was both more recent and more direct, as it came from the St. Vincent government (paras. 10-14).

Furthermore, the officer ignored evidence of the Applicant’s emotional dependence on her father, drawing conclusions in direct opposition to the psychological evidence (paras. 15-17).

Finally, the officer erred in focusing on the availability of mental health care in St. Vincent, without assessing “whether requiring Ms. Davis to return to St. Vincent to access that care would amount to undue, undeserved or disproportionate hardship.” (paras. 18-19)


Ranu—circular reasoning and inadequate reasons

Ranu v. Canada (Citizenship and Immigration), 2011 FC 87 (CanLII)

Judge: Justice Heneghan

Date heard: September 14, 2010

Date decided: January 26, 2011

Counsel for Ranu: Hilete Stein

Counsel for Minister: Angela Marinos

Place of Hearing: Toronto, Ontario

The Applicant applied for judicial review of the IAD’s decision that she was inadmissible “on the basis of an indirect misrepresentation, that is because her marriage to Sukhdev Singh Hansra was not genuine.” (para. 1).

The Applicant married Hansra in September 2001. She was sponsored and landed in March 2003 (para. 2).

Hansra had previously been married to the Applicant’s first cousin, and although they legally divorced in June 2001, they continued their relationship and had a child in late 2002 (about four months before the Applicant was landed) (para. 3). Hansra and the Applicant separated two months after she was landed and divorced in September 2004 (para. 4).

The Applicant was match-made with a Mr. Ranu. They were married in March 2005 and a sponsorship was begun in June 2005 (para. 5).

In June 2006, an officer interviewed the Applicant and Mr. Hansra regarding the alleged non-genuineness of their marriage (para. 6); at this point, they had been legally divorced for nine months.

The officer found that the marriage had not been genuine and referred the Applicant to a hearing, and in May 2008 the Immigration Division upheld the finding and issued an exclusion order (paras. 6-7).

The IAD found that although “the Applicant may have believed that her marriage to Mr. Hansra was genuine”, it was nevertheless a marriage of convenience. (para. 8).

Justice Heneghan found the IAD’s credibility assessment flawed; for example, in one place it found the Applicant not credible, and later in the decision it stated she was credible (paras. 13-14).

In my opinion, these statements are contradictory, and render the Board’s decision unintelligible. According to Dunsmuir, an unintelligible decision does not meet the standard of reasonableness. (para. 14)

The Justice also found that the Board’s reasons did not explain it findings, “the Board failed to show its reasoning process” (paras. 16-17). Therefore the reasons were inadequate.


Mings-Edwards—PRRA officer ignored one of two grounds of risk presented

Mings-Edwards v. Canada (Citizenship and Immigration), 2011 FC 90(CanLII)

Mings-Edwards v. Canada (Citizenship and Immigration), 2011 FC 91 (CanLII)

Judge: Justice Mactavish

Date heard: Januray 25, 2011

Date decided: January 26, 2011

Counsel for Mings-Edwards: Aadil Mangalji

Counsel for Minister: Kareena Wilding

Place of Hearing: Toronto, Ontario

The Applicant filed a pre-removal risk assessment on the basis of two grounds: fear of her abusive spouse, and her status as an HIV+ woman (para. 1).

The PRRA officer focused on the availability of state protection in Jamaica; Justice Mactavish found that this unreasonably ignored the second ground (para. 2).

The PRRA officer disregarded the single personal document attesting to the difficulty the Applicant would face as an HIV+ woman in Jamaica, stating that it was uncorroborated and speculative; he ignored the large volume of general country conditions evidence presented which corroborated her evidence (paras. 3-7). The officer wrongly disregarded this country conditions evidence as “generalized” (para. 7). The officer failed to address whether the discrimination described amounts to persecution or cruel and unusual treatment or punishment (para. 8).

Furthermore, the officer stated that there was state protection in Jamaica, but the entire analysis of state protection referred to the domestic violence ground and not the HIV status ground (para. 9).


B188–release from detention reasonable in all the circumstances, onus on Minister

Canada (Citizenship and Immigration) v. B188, 2011 FC 94 (CanLII)

Judge: Justice Heneghan

Date heard: December 16, 2010

Date decided: January 26, 2011

Counsel for B188: Gabriel Chand

Counsel for Minister: Banafsheh Sokhansanj

Place of Hearing: Vancouver, British Columbia

The Minister applied for judicial review of the decision of Member Marc Tessler releasing the Respondent (B188) from detention (para. 1).

Justice Mosley stayed the release at in November 2010 (para. 2).

The respondent C188 was a Sri Lankan man who had worked for a newspaper in an LTTE-controlled area of north Sri Lanka, and about whom Canada Border Services Agency had alleged he was an LTTE member (paras. 3-8). He had arrived in Canada on the MV Sun Sea, and made a refugee claim. Upon arrival he had a debt of several thousand dollars for the passage, and he stated that his brother, a resident of France, could assist him in paying the debt (para. 9).

At about his fifth detention review, Member Tessler rejected the Minister’s argument that B188 was a flight risk and that the debt increased the risk that he would be “vulnerable for coercion from the smuggler”, and that the allegations of LTTE membership was not straightforward (para. 13). The Member found that terms and condition could be opposed which would mitigate the risk (para. 14).

The Applicant Minister submitted that the Member focused on whether the Applicant could defend the charge of LTTE membership, and not on whether he would appear for removal (paras. 27-28).

Following Justice de Montigny’s decision in Canada (Minister of Citizenship and Immigration) v. B157, 2010 FC 1314, Justice Heneghan cited the following:

“[45]           There were good reasons for the Member to focus on the next immigration proceeding rather than the removal.  An officer may always, with or without a warrant, re-arrest the Respondent if he has reasonable grounds to believe he is inadmissible (an easily-met condition if the Respondent were found inadmissible by the Immigration Division) and is unlikely to appear for his removal: s. 54 of IRPA.

[47]           In light of these further proceedings that are set to occur before removal and of the possibility of re-arresting the Respondent, the Member’s failure to conduct a premature analysis of the likelihood to appear for removal, as compared to the probability of appearing for the inadmissibility hearing, does not represent a fatal flaw in his decision.” (para. 32)

Justice Heneghan further found that the Member did make a proper assessment of flight risk (paras. 34-36).

Furthermore, Justice Heneghan found that the Board properly assessed the factor of the debt, given that the onus is on the Minister to show that the Respondent is a flight risk and given the evidence on the record (paras. 37-43).

Finally, Justice Heneghan found that the terms and conditions were reasonable, noting in particular that the Member imposed all the terms and conditions requested by the Minister at the Detention Review, “except for two, which the Board determined to be either irrelevant or redundant, but refused to impose a cash bond.” (paras. 46-50).


Ortiz Torres–misconstrued evidence leading to faulty credibility analysis

Ortiz Torres v. Canada (Citizenship and Immigration), 2011 FC 67

Judge: Justice Shore

Date heard: January 17, 2011

Date decided: January 26, 2011

Counsel for Ortiz Torres: Adela Crossley

Counsel for Minister: Kareena R. Wilding

Place of Hearing: Toronto, Ontario

The Applicants were a family from Mexico, who claimed on the basis that they were in fear of the Los Zetas gang, which had influence with every level of police in every region of Mexico (paras. 1-5).

Justice Shore pointed out a number of errors. The RPD wrongly relied on a translation of documents that said the principal Applicant was a “Police Service Technician” or a “non-commissioned officer” in finding that he was not credible when he testified that he was a police officer (paras. 6-8). The Board ignored relevant evidence and misconstrued the evidence before it (paras. 20-21). The Board refused to consider the fact that documents en route to the Applicant had been seized by Canadian customs, despite the Applicant proffering evidence (paras. 22-24). Because of its errors, the Board’s negative credibility assessment was flawed. It therefore also erred in its general analysis of risk and IFA (paras. 32-33).