Summary of February 2011 Cases Part 1: Allen, Gunaratnam, Aghdam

Canada (Public Safety and Emergency Preparedness) v. Allen, 2011 FC 124

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc106/2011fc106.html)

Judge: Justice Heneghan; Date heard: January 27, 2011; Date decided: February 3, 2011; Counsel for Allen: Omar Khan; Counsel for Minister: Maria Burgos; Place of Hearing: Toronto, Ontario

Justice Heneghan denied the Minister’s application to overturn the decision of the IAD staying a removal order against the Respondent Mr. Allen.

The Respondent was a PR and citizen of Jamaica with a criminal record in Canada including crimes of a sexual nature against a minor. A removal order was issued by the ID. Mr. Allen did not challenge the legal validity of the order, but asked the IAD to grant a stay on humanitarian and compassionate grounds. The IAD noted that the appellant had not had further problems since this release from custody three years previous, and was successfully receiving psychological treatment (the continuation of which was a condition of the stay of removal).

The Applicant stated that the IAD did not have expertise in weighing rehabilitation. The Court found, on the contrary, that all the factors in Ribic (as approved in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3) and dismissed the application.

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Gunaratnam v. Canada (Citizenship and Immigration), 2011 FC 122

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc122/2011fc122.html)

Judge: Justice Mactavish; Date heard: January 26, 2011; Date decided: February 3, 2011; Counsel for Gunaratnam: Barbara Jackman; Counsel for Minister: Ada Mok; Place of Hearing: Toronto, Ontario

Justice Mactavish overturned the denial of a pre-removal risk assessment of the Applicant, who was a young male Tamil alleging persecution by the EPDP who believed he was an LTTE supporter. The PRRA officer made credibility findings against the Applicant because he had given his parents’ address as the same address since 2009, but also stated that they’d been in hiding. The Applicant stated to the Court that the address he gave was his parents’ permanent address.

Furthermore, the PRRA officer relied on documentary evidence that contradicted the Applicant’s application without putting the contradictions to the applicant. The Court noted that putting contradictory evidence to an applicant may be a requirement of procedural fairness, particularly where a) the contradictory evidence is not readily available in common sources, and b) the country is in a state of turmoil and country conditions rapidly changed (citing Pathmanathan v. Canada (Minister of Citizenship and Immigration), 2009 FC 885).

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Aghdam v. Canada (Public Safety and Emergency Preparedness), 2011 FC 131

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc131/2011fc131.html)

Judge: Justice Mactavish; Date heard: February 2, 2011; Date decided: February 4, 2011; Counsel for Aghdam: Raoul Boulakia; Counsel for Minister: James Todd & Sybil Thompson; Place of Hearing: Ottawa, Ontario

Justice Mactavish granted a mandamus application for Ministerial Relief. Ms. Aghdam had applied for permanent residence in 1992, having been found to be a refugee in 1986. She was interviewed regarding her possible involvement in Mujahedin-e-Khalq (MEK), which is currently a listed terrorist entity. She was interviewed in 1993 and 1996. In 2000 she was advised that her application might be denied. She was interviewed again in 2001, which she believed but the Court disagreed was the time when Ministerial relief began to be considered.

In 2005, Ms. Aghdam filed a written application for Ministerial Relief (under a provision of the IRPA which states that a person who is technically inadmissible may be admitted to Canada if they satisfy the Minister that their presence would not be detrimental to the national interest). She was interviewed in 2005 and made further submissions in response to a negative recommendation. In the intervening 6 years, there did not appear to be movement on the file, and it did not appear that there was an ongoing investigation to justify the delay (although further submissions were made shortly before the hearing of the application).

The Court found that the delay was unreasonable. Furthermore, it found that it was so unreasonable that it made an award of costs against the Minister in the amount of $3500.