Saturday, November 26, 2011

Summary of February 2011 Cases Part 2: Moretto, Woldeghebrial, Paul

Moretto v. Canada (Citizenship and Immigration), 2011 FC 132

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc132/2011fc132.html)

Judge: Chief Justice Lutfy; Date heard: January 20, 2011; Date decided: February 4, 2011; Counsel for Moretto: Adrian Huzel; Counsel for Minister: Kimberly Shane; Place of Hearing: Vancouver, British Columbia

Mr. Moretto was an Italian citizen born in 1969, who had lived Canada since before his first birthday. In 1997, following a diagnosis of bipolar disorder, he began developing a criminal record, and in 2002 he became addicted to crack cocaine. In 2009 he was ordered removed, and his appeal to the IAD was unsuccessful.

This refusal by the IAD was the issue of the JR application. The Chief justice found that the IAD Member had misapprehended the evidence, in particular the hardship to Mr. Moretto if removed. The Member assumed that he could reintegrate into Italian society, despite his having only vague memories of a single vacation there. The Member did not properly consider how separation from his family would cause further deterioration of his condition, and wrongly assumed that this support could be taken over by his Italian relatives, whom he did not know. The Member also failed to consider Mr. Moretto’s relationship with his daughter.

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Woldeghebrial v. Canada (Citizenship and Immigration), 2011 FC 126

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc126/2011fc126.html)

Judge: Justice O’Reilly; Date heard: January 18, 2011; Date decided: February 4, 2011; Counsel for Woldeghebrial: Clifford Luyt; Counsel for Minister: Margherita Braccio; Place of Hearing: Toronto, Ontario

Ms. Woldeghebrial claimed protection on the basis of persecution in Ethiopia as a) a person of Eritrean ethnicity and b) a person with serious mental health challenges.

The RPD found that Eritreans are threated badly in Ethiopia, and denied basic rights, but found that this amounted to discrimination rather than persecution. Furthermore the RPD found that the mentally ill did not receive adequate treatment in Ethiopia and were persecuted as being “evil”, but that Ms. Woldeghebrial had family to care for her.

Justice O’Reilly found that the RPD erred in that it did not explain why the poor treatment of Eritreans could only be considered discrimination and not persecution, and furthermore failed to explain how the ability of her family to supplement inadequate medical care would protect her from persecution. Therefore the claim was ordered re-heard.

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Paul v. Canada (Citizenship and Immigration), 2011 FC 135

(http://www.canlii.org/en/ca/fct/doc/2011/2011fc135/2011fc135.html)

Judge: Justice Boivin; Date heard: January 25, 2011; Date decided: February 7, 2011; Counsel for Paul: Viken G. Artinian; Counsel for Minister: Thi My Dung Tran; Place of Hearing: Montréal, Quebec

Justice Boivin overturned a negative decision of an H&C claim. The Applicants were a mother and son who had faced domestic abuse in St. Vincent. They had previous filed a refugee claim, which was denied. The Applicant’s were also subject to a removal order and an arrest warrant had been issued. While the issue was before the Court, the Applicants had presented themselves to CBSA and had been released. The Court considered the “clean hands” issue, and found that the facts were distinguishable from other cases, e.g. Wong v Canada (Minister of Citizenship and Immigration), 2010 FC 569, and that the Applicant’s had not been underground.

The Court also found that while the officer had properly set out the test for H&C, the test had not properly been applied. The officer set the threshold for risk too high. The officer conflated the H&C test with the test for the PRRA, and assessed risk instead of hardship.

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