Westmore—reasoning not transparent

Westmore v. Canada (Citizenship and Immigration), 2012 FC 1023 (CanLII)

Judge: Justice Russell; Date heard: June 27, 2012; Date decided: August 28, 2012; Counsel for Westmore: Michael F. Battista; Counsel for Minister: Michael Butterfield; Place of Hearing: Toronto, Ontario.

The applicant was a 70-year-old citizen of the UK, who had been with his same-sex partner since 1983. They lived common-law, splitting their time between UK and Canada on the basis of repeated renewals of visitors visas, between 1983 and 2003. At that time, the Immigration and Refugee Protection Act provisions allowing sponsorship of same-sex partners came into force, so the applicant and his partner married and submitted a sponsorship in June 2004.

Tragically, the applicant’s partner died in October 2004. The applicant was no longer a sponsored spouse, but asked the Minister to process his application on humanitarian and compassionate grounds. The application was converted into an H&C, and the applicant was granted approval in principal in August 2005: “The immigration officer reviewing that application found that there was strong evidence of community support and ties to Toronto. The Applicant had also shown that he would not be in financial difficulty if he were granted permanent residence” (para. 4).

At that point in time, the Respondent requested an updated medical exam, but for some reason there was a breakdown in communication and the applicant was not aware of this request. His H&C was therefore denied in March 2008.

The applicant filed a new H&C in November 2009, which included information on his reliance on the services of the Canadian National Institute for the Blind (CNIB), as well as the other grounds (establishment and significant connections to Canada) relied on in the first application. This application was refused in September 2011.

Justice Russell concurred with the applicant that there were two grounds of review:

… the Decision lacks transparency and intelligibility because the Officer failed to explain why she came to a negative conclusion when the Applicant’s previous H&C application was positive, and that the Officer’s various conclusions regarding insufficient evidence about support systems in the UK, and his ability to replace what he has at CNIB in the UK, are simply unreasonable given the evidence that was before the Officer. (para. 38)

Justice Russell goes on to state:

[42] A significant portion of the Officer’s reasoning relates to her finding that “there is insufficient evidence showing whether [the Applicant] has any other family in the United Kingdom or that he may have friends or acquaintances from his previous travels home that may be able to provide support.” Had the Applicant established to the Officer’s satisfaction that he had no one to return to, the outcome of the Decision might well have been different.

[43] I think the Officer’s treatment of the evidence establishing his support system, or lack thereof, was unreasonable. She found there was insufficient evidence that other family in the UK – the Officer accepted that his mother and brother were both deceased – could support the Applicant. However, it seems the Officer ignored the evidence in the Applicant’s H&C application form. Part C of the application form called on the Applicant to list his family members who were living in Canada. He listed no one. He also wrote in his Supplementary Information Form that “I have no family or friends remaining in my country of citizenship, the United Kingdom.” Further, the Applicant said that “All of my friends and support networks are in Canada,” which necessarily implies he has no support network in the UK. On both of these forms, the Applicant declared that the information he gave was true and correct.

[44] The Officer had before her sworn evidence which established a crucial aspect of the Applicant’s request for an H&C exemption. However, she concluded there was insufficient evidence to establish the lack of support. In doing so, the Officer failed to give the Applicant’s sworn statement the presumption of truthfulness which Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 establishes.

Since the Court could not determine how the Officer arrived at the decision, the decision was overturned.

Altun—ignoring evidence of a corrupt judiciary

Altun v. Canada (Citizenship and Immigration), 2012 FC 1034 (CanLII)

Judge: Justice Shore; Date heard: August 28, 2012; Date decided: August 29, 2012; Counsel for Altun: Lorne Waldman; Counsel for Minister: Rick Garvin; Place of Hearing: VIDEOCONFERENCE.

The applicant was a Kurdish citizen of Turkey, a medical doctor, who had been convicted and served a sentence for signing a certificate of sick leave. He claimed that “the charges were false, motivated by ethnic persecution in his regard” (para. 2).

Justice Shore found that the RPD had failed to consider all of the evidence, stating:

It is recognized by this Court that, if all the documents had been adequately considered, the reasons would have demonstrated, at the very least, a logical inherence derived from the analysis of significant, pertinent, detailed evidence, thus, within a framework of potential outcomes as set out by the Supreme Court… (para. 3)

The RPD appeared to be finding in favour of the applicant: “The RPD stated the matter was credible and expressed sympathy for the case. In addition, the RPD stated the allegations were trustworthy. It is difficult to understand how the RPD was of the opinion that there was not enough evidence. …” (para. 5).

However, the RPD found the applicant’s situation one of prosecution rather than persecution, despite significant evidence of corruption in the judiciary. Therefore the case was overturned.

Numbi—plausibility analysis ignoring evidence

Judge: Justice Boivin; Date heard: July 26, 2012; Date decided: August 30, 2012; Counsel for Numbi: Raoul Boulakia; Counsel for Minister: Sybil Thompson; Place of Hearing: Toronto, Ontario.

The applicants were citizens of the Democratic Republic of the Congo, whose refugee claim was refused. The principal applicant was a former employee of the Ministry of Finance who had “denounced the corruption and the embezzlement of funds carried out by the Congolese president”.

The RPD found it “implausible” that the principal applicant would be persecuted by the presidential security forces, as alleged, merely for reporting an irregularity. The RPD found it more likely that the applicant merely wanted to retire to Canada, in part because the principal applicant had taken a leave of absence and come to Canada on visitor’s visas. Despite significant evidence of human rights abuses in DRC, the RPD found that there was no evidence that the applicant had been persecuted during his long career.

Justice Boivin reaffirmed that the RPD “is entitled to make credibility findings based on implausibility, common sense and rationality” (para. 19). However, in the case at bar, “this finding is not supported by any evidence and as such,the Board could not reasonably make the implausibility finding that it did as it is not based on the documentation on record” (para. 20). In fact, the RPD had ignored evidence presented by the applicant that other state employees, politicians, journalists etc., had been killed for drawing attention to misappropriation of funds by the Congolese state.

Furthermore, the RPD ought not to have speculated about the applicant’s motivation for coming to Canada, and the RPD’s comments were unfounded (para. 23).

Dindo—Application to reopen, change of address

Dindo v. Canada (Citizenship and Immigration), 2012 FC 1040 (CanLII)

Judge: Justice Zinn; Date heard: August 30, 2012; Date decided: August 30, 2012; Counsel for Dindo: Robert I. Blanshay; Counsel for Minister: Christina Dragaitis; Place of Hearing:Toronto, Ontario.

The applicants were a family who had made a refugee claim. They were sent a Notice to Appear for a Scheduling Conference on May 12, 2011. When they did not appear at the conference (nor was the notice returned as mailed to the wrong address), the RPD sent the applicants a Notice to Appear for an Abandonment of a Claim on June 8, 2011. Again, the Notice was not returned but neither did the applicants appear. The RPD declared the claim abandoned, and sent a notice to the effect on July 5, 2011, while was likewise not returned.

The applicants had used a consultant to prepare their PIFs, and the notices had been sent to the address indicated on the PIF, including apartment number 901. However, before the Federal Court, the applicants presented evidence that the PIFs had not been translated back to them.

The applicants retained new counsel on March 28, 2011, but this new counsel did not inform the RPD (in writing) until August 16, 2011, after the decision was made. He asserted to the Federal Court that he had provided oral notice earlier, but Rule 4(4) of the RPD required such notice to be in writing.

Before the RPD, when the applicants applied to the RPD to reopen their claim, they simply asserted that they had not received the notice and that the oral notice of change of counsel was sufficient. Justice Zinn rejected these arguments.

However, before the Federal Court, Counsel for the Minister brought to the Court’s attention that the Notification of Contact Information filed by the applicants themselves, prior to filing the PIF, indicated apartment number 321. This apartment number is corroborated by their complaint to the Canadian Society of Immigration Consultants about their first counsel.

As it would appear that the applicants did not receive their notices due to an error by their first counsel, the refusal was overturned and the RPD was to rehear the Application to Re-Open.

Olvera-Personal risk

Olvera v. Canada (Citizenship and Immigration), 2012 FC 1048 (CanLII)

Judge: Justice Shore; Date heard: August 29, 2012; Date decided: August 31, 2012; Counsel for Olvera: Nico G.J. Breed; Counsel for Minister: Rick Garvin; Place of Hearing: Calgary, Alberta.

The Applicants were citizens of Mexico who were menaced by the Los Zetas gang for extortion. He could not receive help from the police or the PGR. The state human rights commission agreed that the state had to protect him, but that they lacked the resources to do so. The Applicants therefore fled.

The RPD found that there was no nexus to the Convention because the fact that the principal Applicant owned a business did not put him in a particular social group, and that his complaints to the police and human rights commission did not mean that he was targeted for expressing a “political opinions”. Justice Shore upheld these findings.

However, Justice Shore overturned the decision on the basis of generalized risk. He noted that “The jurisprudence is less settled, however, on whether persons personally targeted by criminal gangs face a generalized risk” (para. 37).

Justice Shore relied on the decision of Justice Gleason in Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678:

[38] In the Portillo decision, above, Justice Gleason held that it was unreasonable to find that an applicant, who had been personally threatened by a criminal gang, faced a risk of general criminality simply because criminal gang violence was rampant in the applicant’s country of origin. “It is simply untenable,” she wrote, “for the two statements of the Board to coexist: if an individual is subject to a personal risk to his life or risks cruel and unusual treatment or punishment, then that risk is no longer general.” Such an approach, Justice Gleason held would strain section 97 of the IRPA to the point of irrelevance: “If the Board’s reasoning is correct, it is unlikely that there would ever be a situation in which this section would provide for crime-related risks” (at para 36).

[39] Justice Gleason proposed the following test for determining the nature of the risk faced by an applicant. Firstly, one must assess whether the claimant “faces an ongoing or future risk ... what the risk is, whether such risk is one of cruel and unusual treatment or punishment and the basis for the risk” (at para 40). Secondly, the risk faced by the claimant must be compared to “that faced by a significant group in the country to determine whether the risks are of the same nature and degree” (at para 41).

On the case before him, Justice Shore noted in particular: “It is irrational for the Board to accept the principal Applicant’s allegations that he was specifically targeted by the Los Zetas and, yet, conclude that his particular risk was faced generally by other Mexicans” (para. 41).