Toronto Star article: “Teresa Gratton’s final days, in her own words”

Brenden Kennedy, “Teresa Gratton’s final days, in her own words”, Toronto Star, 16 December 2017

Live link: https://www.thestar.com/news/investigations/2017/12/16/teresa-grattons-final-days-in-her-own-words.html

Archive link: http://web.archive.org/web/20171216174831/https://www.thestar.com/news/investigations/2017/12/16/teresa-grattons-final-days-in-her-own-words.html

February 2017 pro-immigrant cases

• Singh v. Canada (Citizenship and Immigration), 2017 FC 132; http://canlii.ca/t/h03cj; February 2, 2017; Barnes J.; refusal of application under Federal Skilled Worker Express Entry Program
• Aslanyan v. Canada (Citizenship and Immigration), 2017 FC 133; http://canlii.ca/t/gxbpq; February 3, 2017; Strickland J.; refusal of application for an open work permit
• Toribio v. Canada (Citizenship and Immigration), 2017 FC 145; http://canlii.ca/t/gxf8g; February 7, 2017; Heneghan J.; finding by an officer of misrepresentation
• Vigneswaralingam v. Canada (Citizenship and Immigration), 2017 FC 151; http://canlii.ca/t/gxf8c; February 8, 2017; Simpson J.; IAD refusal to grant a stay of removal
• Mandric v. Canada (Citizenship and Immigration), 2017 FC 162; http://canlii.ca/t/gxfwv; February 9, 2017; Brown J.. refusal of ARC
• Wong v. Canada (Attorney General), 2017 FC 152; http://canlii.ca/t/gxlsd; February 10, 2017; Southcott J.; refusal to issue passport
• Mukilankoy c. Canada (Citoyenneté et Immigration), 2017 CF 161; http://canlii.ca/t/gxhhn; February 13, 2017; Locke J.; refusal of overseas H&C
• Al Khayyat v. Canada (Citizenship and Immigration), 2017 FC 175; http://canlii.ca/t/gxhhl; February 13, 2017; Strickland J.; ID finding of inadmissibility for commission of war crimes/crimes against humanity
• Punia v. Canada (Citizenship and Immigration), 2017 FC 184; http://canlii.ca/t/gxj8r; February 14, 2017; Russell J.; refusals of TRVs
• Chowdhury v. Canada (Citizenship and Immigration), 2017 FC 189; http://canlii.ca/t/h03tt; February 15, 2017; Southcott J.; ID finding of inadmissibility for membership in an impugned organization
• Thanabalasingham v. Canada (Attorney General), 2017 FC 190; http://canlii.ca/t/gxpxc; February 15, 2017; Russell J.; refusal of Record Suspension application
• Chamorro v. Canada (Citizenship and Immigration), 2017 FC 192; http://canlii.ca/t/gxlsf; February 15, 2017; Shore J.; RAD refusal of refugee appeal
• Orbizo v. Canada (Immigration, Refugees and Citizenship), 2017 FC 203; http://canlii.ca/t/gxn0d; February 20, 2017; Strickland J.; refusal of H&C
• Bajwa v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 202; http://canlii.ca/t/gxn0c; February 21, 2017; Russell J.; refusals of work permit extensions
• Ali v. Canada (Citizenship and Immigration), 2017 FC 213; http://canlii.ca/t/h03v2; February 22, 2017; Heneghan J.; RPD refusal of refugee claim
• Nagornyak v. Canada (Citizenship and Immigration), 2017 FC 215; http://canlii.ca/t/h1qtg; February 22, 2017; Strickland J.; RPD refusal of refugee claim
• Abakumova v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 218; http://canlii.ca/t/h03ck; February 23, 2017; Simpson J.; RAD refusal of refugee appeal
• Haynes v. Canada (Citizenship and Immigration), 2017 FC 220; http://canlii.ca/t/h03cm; February 23, 2017; Simpson J.; RAD refusal of refugee appeal
• Zhong v. Canada (Citizenship and Immigration), 2017 FC 223; http://canlii.ca/t/h067h; February 23, 2017; Boswell J.; refusal of H&C on reconsideration
• Lhundup v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 224; http://canlii.ca/t/h067g; February 23, 2017; Heneghan J.; refusal of an overseas family member of a protected person (non-genuine marriage)
• Mpoyi v. Canada (Citizenship and Immigration), 2017 FC 228; http://canlii.ca/t/h03ch; February 23, 2017; Simpson J.; refusal of H&C
• Tsikaradzei v. Canada (Citizenship and Immigration), 2017 FC 230; http://canlii.ca/t/h067q; February 23, 2017; Boswell J.; RPD refusal of refugee claim
• Tine c. Canada (Citoyenneté et Immigration), 2017 CF 231; http://canlii.ca/t/h03cf; February 24, 2017; Martineau J.; refusal of H&C
• Pineda Cabrera v. Canada (Citizenship and Immigration), 2017 FC 239; http://canlii.ca/t/h067f; February 24, 2017; Strickland J.; RPD refusal of refugee claim
• Jeyakumar v. Canada (Citizenship and Immigration), 2017 FC 241; http://canlii.ca/t/h0nld; February 27, 2017; McVeigh J.; RAD refusal of refugee appeal
• Nweke v. Canada (Citizenship and Immigration), 2017 FC 242; http://canlii.ca/t/h03v1; February 27, 2017; Strickland J.; RPD refusal of refugee claim
• Uwitonze c. Canada (Citoyenneté et Immigration), 2017 CF 245; http://canlii.ca/t/h03v0; February 28, 2017; Roussel J.; refusal of H&C

Danyi: discounting psychological assessments

Danyi v. Canada (Public Safety and Emergency Preparedness), 2017 FC 112

Boswell J., 30 January 2017, online at: http://canlii.ca/t/gxhhr

Decision under review: Refusal to defer removal

For Applicants: Richard Wazana (Wazana Law, Toronto)

For Respondent: Tamrat Gebeyehu, Dept. of Justice (Toronto)

The Applicants were a Roma family, citizens of Hungary, who had exhausted all avenues for protection under ss.96/97, but had a pending humanitarian and compassionate application (H&C), based in large part on a psychological assessment of one of the Applicants, a child, which concluded that return to Hungary would be harmful to him (paras. 3-4). His mother also suffered from PTSD and would have difficulty caring for him as a result (paras. 4 and 5). The Applicants cited Tiliouine,[1] for the position that a Removals Officer must consider whether the removal itself will cause harm.

The Applicants also challenged the standard position that a Removals Officer need only look at the short-term best interests of a child involved in terms of what they would face in the country of removal: “The Applicants also submitted to the Officer that Alex’s best short-term interests would be protected by deferring removal until after his overall best interests had been fully assessed in the context of the pending H&C application” (para. 4). Other grounds on which the deferral was requested was interruption of the child’s education and (non-psychological) medical treatment one of the Applicants was undergoing (paras. 4 and 6).

On standard of review, the Court noted that overall the test was reasonableness (paras. 14-15), but that the case law was not clear as to whether the standard of review on whether the Removals Officer fettered discretion would be reasonableness or correctness (paras. 16-18). The Court found that is was not necessary to answer the question.

The Court reiterated the standard line of cases on the narrowness of the Removals Officer’s discretion on deferral, and that Removals Officers need not perform “mini” H&Cs or other types of detailed assessments (paras. 28-32). The Court also reiterated the case law stating that Removals Officers need only conduct limited, short-term assessments of best interests of the child (paras. 33-35).

However and despite this, the Court found that the Removals Officer’s consideration of the child Applicant’s psychological assessment was unreasonable:

In this case, the Officer’s assessment of Alex’s mental health condition is problematic. Because enforcement officers must assess the short-term BIOC, the Officer was required to reasonably consider the psychiatric evidence about Alex’s short-term interests. The psychiatric assessment states that Alex’s return to Hungary would deprive him of his current sense of safety and stability since his past experiences there were highly traumatizing and hostile. The assessment found that his return would cause a relapse of his PTSD symptoms and would compromise his parents’ ability to meet his emotional and physical needs. Given the psychiatrist’s findings, the Officer’s conclusion that removal “may cause a period of adjustment” for Alex cannot be justified because it is not responsive to Alex’s short-term and present emotional, social, and psychological interests.

Although the Officer stated that his limited discretion was centered on evidence of “serious detrimental harm”, the Officer unreasonably minimized and discounted the serious detrimental harm evidenced and identified by the psychiatrist whose report concerning Alex clearly and unequivocally stated that: “…return to an environment that he and his parents have experienced as highly traumatizing and hostile…will cause a relapse of his symptoms of PTSD as well as compromise his parents’ ability to meet his emotional and physical needs.” In the face of this psychiatric evidence, it cannot be said that Alex would suffer merely a period of adjustment upon return to Hungary. In this case, the Officer did not reasonably consider or adequately assess the fact that removal itself would trigger or cause psychological harm to Alex. (paras. 36-37)

The Court also found that the Removals Officer’s assessment on the mother’s psychological assessment was also unreasonable, based on the Supreme Court’s analysis in Kanthasamy:

Although Kanthasamy involved an H&C application, unlike the present case which concerns a request to defer removal, in my view the Supreme Court’s foregoing comments are equally applicable in the context of this case. The Officer in this case, like the officer in Kanthasamy, unreasonably discounted the psychologist’s finding concerning Veronika’s mental health. The Officer faulted the psychologist’s report for being dated and not stating whether Veronika currently suffers from suicide ideation or is currently at risk for suicide. The Officer in this case, much like the officer in Kanthasamy, also found “insufficient medical evidence … to indicate that Veronika has sought or received mental health treatment, as recommended” and that “insufficient evidence was presented to indicate that Veronika could not pursue mental health treatment upon her return to Hungary.” The Officer did not reasonably consider or adequately assess the fact that removal itself would trigger or cause further psychological harm to Veronika, and his treatment of the medical evidence concerning Veronika, in view of Kanthasamy, is unreasonable. (para. 39)

 

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[1] Tiliouine v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1146 (http://canlii.ca/t/glhwl); see e.g. at para. 11: “…where, as here, there is evidence of irreparable psychological harm resulting from the removal itself, it is not enough for the removal officer to simply examine the availability of health care and treatment in the home country (Sha v. Canada (Citizenship and Immigration), 2011 FC 1269 at para. 58; Davis v. Canada (Citizenship and Immigration), 2011 FC 97, at para. 19).”

Aslanyan: ignoring evidence

Aslanyan v. Canada (Citizenship and Immigration), 2017 FC 133

Strickland J., 3 February 2017, online at: http://canlii.ca/t/gxbpq

Decision under review: Refusal of overseas application for work permit as a spouse of a study permit holder

For Applicant: Aleksei Grachev (Toronto)

For Respondent: Tamrat Gebeyehu, Dept. of Justice (Toronto)

The Applicant’s spouse was in Canada on a study permit, and he applied for an open work permit. The Court agreed that he had made submissions with his application – although less clearly than he could have done - that he wanted an open work permit to allow him to work in Canada intermittently during his occasional visits to his family here (paras. 6 and 8). The Applicant had also submitted letters of support – essentially corroborative and character references – as well as submitting and providing evidence that through his job in Russia he was the family’s sole breadwinner, and furthermore that he was the principle carer for his dependent mother and could only be replaced for short periods of time (paras. 11-12).

None of the evidence provided was referenced in the Officer’s “reasons”, which were the FOSS/GCMS notes (para. 13).

The Respondent argued that the Applicant was clearly planning to leave his employment in Russia, as the Officer had determined, because his leave letter stated he had 28 days but his work permit application was for two years (para. 14). The Court found that in the context of the whole application, the Applicant clearly intended to work on-and-off during his visits to Canada, which would be made occasionally over a two-year period (para. 15). The Officer ignored evidence and the decision was thus overturned.

Singh: failure to engage with evidence after fairness letter

Singh v. Canada (Citizenship and Immigration), 2017 FC 132

Barnes, 2 February 2017, online at: http://canlii.ca/t/h03cj

Decision under review: Refusal of application under Federal Skilled Worker/Express Entry Program

For Applicant: Raj Sharma, Stewart Sharma Harsanyi (Calgary)

For Respondent: Gwen MacIsaac, Dept. of Justice (Saskatoon)

The Applicant applied under FSW/EE, as a financial auditor/accountant, and the Officer doubted his experience (para. 2). In his FSW/EE application, Mr. Singh claimed he had worked as an auditor with a particular accounting firm between December 1, 2011 and August 14, 2013; however, in previous student and temporary work visas, he had allegedly not listed this same work experience (paras. 2-3).

The Officer sent a fairness letter to Mr. Singh, stating that his work experience was in doubt based on an absence of corroborating evidence, failure to declare the work history in earlier applications, and that period of work overlapping with another at the Institute of Chartered Accountants of India (para. 4). Mr. Singh replied that he had not been employed by the Institute of Chartered Accountants of India but doing a co-op placement through them; he also submitted additional corroborating evidence; and he explained that he had omitted it from the previous applications through a misunderstanding, thinking that the previous applications required him to list his work experience in Canada (para. 5). He stated further that he would have included this experience because it would have been helpful to his applications – the clear implication of his statement is that he would have included it had he known he could.

The Officer’s refusal letter simply states that after the issue was raised, “You replied with further information and documents which were fully reviewed and assessed. However based on balance of probabilities and the evidence provided I am not satisfied that you acquired foreign work experience you have declared.” (para. 6). According to the FOSS/GCMS notes (para. 7), the Officer rejected Mr. Singh’s explanations because:

• Mr. Singh stated he “would not have” failed to mention his work experience in the previous applications, but he did fail to mention it;
• The fact the he was only mentioning it now “brings into doubt the credibility” of Mr. Singh; the Court went on to note that Mr. Singh had actually given several documents for corroboration, including those specifically requested by the officer, and to agree with counsel for Mr. Singh that the Officer had “failed to engage in a meaningful way with the evidence” (paras. 8-9);
• During the period of overlap, he could not have been both working and studying, both on a full-time basis; the Court went on to note that as he was doing a co-op or internship, this was precisely what he was doing (para. 10);
• The Officer also raised the issue that Mr. Singh had not yet been able to gain employment in Canada; the Court notes that this is a non sequitur and irrelevant (para. 11)

An Officer cannot merely pay lip service to submissions in response to a fairness letter; he or she must genuinely engage with the submissions.