Monday, November 28, 2011

Summary of February 2011 Cases Part 4: B386, Leal Alvarez, Demiraj

Canada (Citizenship and Immigration) v. B386, 2011 FC 140


Judge: Chief Justice Lutfy; Date heard: January 19, 2011; Date decided: February 8, 2011; Counsel for B386: Gabriel Chand; Counsel for Minister: Hilla Aharon; Place of Hearing: Vancouver, British Columbia

This was a decision of the Federal Court upholding the decision of the Immigration Division releasing one of the persons who arrived on the MV Sun Sea. The  ID Member had allegedly erred by deciding that the person could be released with a bod and terms and conditions. She then offered Minister’s counsel a chance to cross-examine the bondsperson, and Minister's counsel declined. It is not clear from the decision what the Minister-Applicant's objection was to this, but it may have been the appearance that the decision had been made before the Minister's counsel was able to cross-examine the proposed bondsperson. In any event, the Court stated that detention reviews are often “rough-and-ready” proceedings and that both sides had made submissions, so this was not an error sufficient to overturn the decision.

The Minister-Applicant also argued that the Member had ignored the detained person’s possible vulnerability to smugglers or traffickers, having arrived by Canada on a boat, or the person’s ties to the community. On the contrary, the Court found that the Member had considered both these points.


Leal Alvarez v. Canada (Citizenship and Immigration), 2011 FC 154


Judge: Justice Rennie; Date heard: January 19, 2011; Date decided: February 9, 2011; Counsel for Leal Alvarez: Michael Crane; Counsel for Minister: Deborah Drukarsh; Place of Hearing: Toronto, Ontario

The Applicants were citizens of Colombia, and the principal Applicant was the only one alleging persecution, on the basis violence and threats from the guerilla group FARC. The RPD found against the Applicant on credibility: the Applicant was a secretary or assistant in a program run by the municipal government, and the RPD found that she was too low-placed to be targeted by FARC. Justice Rennie found the the RPD had erred in focusing on the Applicant’s job title and not the uncontested evidence that she worked with villages and displaced persons, specifically against FARC.

Justice Rennie also found that the RPD made two legal errors. the Applicant alleged she had been beaten and kidnapped by FARC, and the RPD stated that it needed “conclusive proof” of this event. The RPD also stated that it was not satisfied that the Applicant was targeted “on a balance of probabilities”. The Court noted that both of these tests are too high; the correct test is whether there is a “serious possibility of persecution or harm”.


Demiraj v. Canada (Citizenship and Immigration), 2011 FC 161


Judge: Justice Heneghan; Date heard: February 8, 2011; Date decided: February 10, 2011; Counsel for Demiraj: Jonathan Fedder; Counsel for Minister: David Cranton; Place of Hearing: Toronto, Ontario

The Applicants were Albanian citizens who claimed protection in Canada on the basis of a blood-feud. They submitted a PRRA and an H&C, both of which were denied. Justice Henghan upheld the negative PRRA, but on the H&C, found that the officer had applied the wrong test: “The Officer reasons that because there is state protection available in Albania, the Applicants face no risk to life, and therefore, that there will be no undue, undeserved or disproportionate hardship.” This conflation of the tests, and the underlying assumption that the existence of state protection means that there is no hardship is an error of law.

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