Saturday, April 23, 2011

Pusat–procedural fairness and disclosure in inadmissibility

Pusat v. Canada (Citizenship and Immigration), 2011 FC 428

Judge: Justice Mosley

Date heard: January 24, 2011

Date decided: April 7, 2011

Counsel for Pusat: Lorne Waldman

Counsel for the Minister: John Loncar

The applicant was an Alevi Kurd who applied oversees as a member of the family class. His wife was a Canadian permanent resident who had been granted refugee status some years before and was attempting to sponsor her husband (paras. 1-4).

The applicant was interviewed at the Canadian embassy in Ankara in September 2007:

The interview focused on whether he qualified as a member of the family class, but did briefly discuss his admissibility. The applicant explained that though he supports some of the PKK’s goals, he does not support the PKK because he did not believe in violence. (para. 4)

The application was dismissed on the basis that the applicant was inadmissible as a member of the PKK. The applicant brought a judicial review (IMM-5482-09), which was settled when the Minister agreed to re-determine the application (para. 5).

Another interview was scheduled at the Ankara embassy for April 2010. The applicant’s counsel in Canada repeatedly requested disclosure from the Minister, to no avail; however, the CAIPS notes contained a notation that the applicant was advised a day before the interview and told that the interview was related to inadmissibility (para. 6).

At the second interview, the applicant admitted to being involved with PKK advocacy activities in Switzerland (and that he had lived there), but stated that any involvement with the PKK was due to social pressure. He reiterated his abhorrence of violence and his non-membership, and that he had not been involved with the PKK in Turkey. The applicant’s counsel was not allowed to make submissions following the interview, and the decision was made the next day (paras. 7-8).

The Certified Tribunal Record (CTR) contained redacted information, and the Respondent filed a motion under s. 87 to maintain the confidentiality of that information. On the basis that neither the Court nor the Respondent would seek to rely on the redacted information, the redactions were not challenged (para. 9).

The FC decision was made on the basis of the breach of procedural fairness, and none of the other grounds alleged (para. 12).

The breaches of procedural fairness cited by the applicant were the failure to disclose the basis of the allegation of membership prior to the interview, and the failure to give an opportunity to respond with submissions after the interview (paras. 15-16). The judge rejected the Minister’s submission that the phone call prior to the interview, in combination with the knowledge arising from the previous case, comprised sufficient disclosure:

The record is clear that the respondent did not reply to the communications from counsel and did not provide any meaningful disclosure before the interview, notwithstanding that the application was sent back on consent to be reconsidered for that reason. The respondent' s attempt to rely on the CAIPS notes as evidence that he was informed of the purpose of the interview by a telephone call from someone, presumably an administrative assistant at the Embassy, two days prior to the event, is misplaced. There is no affidavit evidence from the assistant to verify the facts stated in the CAIPS notes. (para. 19)

While acknowledging that the content of procedural fairness must be assessed on a case-by-case basis, Justice Mosley found that there were documents that had clearly influenced the decision, contained in the CTR, which ought to have been disclosed to the applicant prior to the interview.

Citing Mekonen v. Canada (Minister of Citizenship and Immigration), 2007 FC 1133 (which cites Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.), and Canada (Minister of Citizenship and Immigration) v. Bhagwandass, 2001 FCA 49), Justice Mosley found that this was a case where procedural fairness required the evidence to be disclosed and the applicant given a meaningful opportunity to respond to it (paras. 21-32).

Justice Mosley also rejected the Minister’s submission that, having found a breach of procedural fairness, the court ought not to grant a remedy on the doctrine of “no useful purpose” as expressed in Mobil Oil Canada Ltd. v. Canada Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202 (para. 33). He found that the question was still live and that the inadmissibility decision was not inevitable (para. 34).

Sapru–adequate reasons in medical inadmissibility

Sapru v. Canada (Citizenship and Immigration), 2011 FCA 35

Panel: Dawson J.A., Layden-Stevenson J.A., Stratas J.A.

Date heard: December 14, 2010

Date decided: February 1, 2011

For the Appellants: Cecil Rotenberg, Q.C.; Mario Bellissimo

For the Minister: Lorne McClenaghan

The reasons were written by Dawson J.A.. The case was an appeal from 2010 FC 240, wherein the following questions were certified by Justice Mosley:

a.         When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants' ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness Letter and rely on the applicants' response to that letter?

b.         Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer's duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate?

The background was the immigration application of a family from India consisting of a principal applicant engineer, his wife, a pediatrician, and their two children, including Rishi (8 years old). As usual, the family had to undergo medical examinations prior to approval, with the following result:

The Medical Officer determined that Rishi suffers from developmental delay, including psychomotor delay and delay in speech development. At age 8, he had a mental age of 4 years and an I.Q. between 60 and 65. The Medical Officer determined that Rishi is likely to require a variety of social services in Canada. She provided detailed reasons for reaching these conclusions. (FC decision, para. 4)

A “fairness letter” was sent to the applicants advising of the above conclusion and offering the applicants an opportunity “to provide additional information on Rishi’s medical condition, social services required, and/or ‘your individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and your signed Declaration of Ability and Intent.’”* (FC decision, para. 5)

Dr. Sapru, Rishi’s mother, responded by challenging the findings on the severity of his condition (para. 9) and the social services he would require (para. 10). She also submitted an education plan (private school at the family’s expense with additional support from his mother who would not be able to practice in Canada and would therefore be free to concentrate on Rishi), and an agreement to indemnify the province of Ontario against any services used for five years (para. 10) as well as other supporting documentation. These submissions were assessed by the medical officer (MO) and the immigration officer (IO) as follows:

The Fairness Response was sent to the medical officer for review and consideration.  A Procedural Fairness assessment was then completed by the medical officer and sent to the immigration officer.  In the Procedural Fairness assessment the medical officer listed the additional documents she had reviewed in the Fairness Response.  She then wrote:

[“]I have reviewed our medical file for the above-named Foreign National along with the additional material listed above and it is my opinion that no information has been provided which would indicate that the original immigration medical assessment was incorrect.  Therefore there is insufficient evidence to support a change or re-evaluation of this Foreign National’s medical assessment at this time.  Hence remains M5.[”]

The tribunal record contains no letter, note, e-mail or other writing that explains how the medical officer analysed the information provided in the Fairness Response or her basis for concluding that the Fairness Response contained no information that would lead the medical officer to the view that her original assessment was incorrect. (paras. 12-13)

The FC found that the MO had no obligation “to make any inquiries into the applicants' ability and intent to offset any excessive demand.” (FC decision, para. 35) Furthermore, the MO’s reasons in response to the fairness submissions were inadequate but “the inadequacy of the medical officer's reasons was saved by the detailed reasons of the immigration officer.” (FC decision, paras. 37-42)

The FCA agreed with Justice Mosley on the issue of inquiring into the applicant’s ability to offset excessive demand:

The Judge dealt with this submission at paragraph 35 of his reasons where he wrote:

[“][…] The applicants are in the best position to provide evidence of their ability and intent, and they are given a fair opportunity to do so in the Fairness Letter. There is no reason that a Medical Officer should have to make an inquiry at an earlier stage, as long as she considers any Fairness Response carefully and with an open mind.[”]

In my view the Judge was correct, for the reasons that he gave.  I would add one cautionary note.  The Judge’s conclusion was premised on the basis that the Fairness Letter gives an applicant “a fair opportunity” to respond to any concerns.  This requires the Fairness Letter to set out clearly all of the relevant concerns so that an applicant knows the case to be met and has a true opportunity to meaningfully respond to all of the concerns of the medical officer. (paras. 30-31)

The FCA then turned to the question of the adequacy of the reasons from the MO.

Having reviewed the legislation and the case law, the FCA held that “it follows from the obligation placed on an immigration officer to review the reasonableness of a medical officer's opinion that a medical officer must provide the immigration officer with sufficient information to enable the immigration officer to be satisfied that the medical officer's opinion is reasonable.” (para. 41)

The FCA also noted that different fact scenarios might give rise to an adequate opinion from the MO, including where the applicant’s responses did not call for further comment from the MO; where the MO issues a report to the IO; where advice is given orally (as long as that communication is adequately recorded, e.g. in CAIPS notes); or where the IO asks questions of and receives a response from the MO which is likewise documented (para. 42).

However, the main point was that the IO’s assessment, however complete it appears, must be based on the MO’s assessment; therefore the IO’s reasons cannot “repair” the inadequacy of the MO’s reasons (para. 54).

The FCA also held that the FC erred in its reliance on the MO’s affidavit, in particular the MO’s statement in the affidavit “that she had considered the applicants’ ability and intent to manage Rishi’s needs.” (para. 50) This information was not before the IO, and was bolstering as found to be of no weight in Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness),2008 FCA 255 (para. 52).

 

* See Operational Bulletin 063 for information on the declaration, which is a formal undertaking detailing the applicant’s willingness and ability to mitigate the excessive cost on social services.

Sunday, March 20, 2011

Against Unnecessary Faxes

Ray Against Unnecessary Faxes

I have long adored the above comic from Achewood.*

Now I can follow it up with this article from Slate: Kill Your Fax Machine.

 

*The cartoonist, Chris Onstad, has a thing allowing embedded comics, but it doesn’t play well with my blog app. So I cheated.

Sunday, March 06, 2011

Resistance is futile?

So France has finally crossed that line and on April 11 their reprehensible “burqa ban” comes into force. See JURIST roundup here.

CNN posted a story featuring this picture:

t1larg.burqa.2009.gi.afp

With a caption reading “A survey in 2010 found that more than four out of five French people backed a ban on wearing the burqa in public places.”

 

Uhm…

They do know that’s a woman’s BACK, right? I mean, note the carriage in front of her. She could easily be a hijabi…or, frankly, a nun.

The worst part is that “Violators wearing a face covering may be fined up to 150 euros and/or required to attend citizenship classes.”

Next step, re-education camps?

Friday, December 17, 2010

Kadah—failure to consider relevant evidence

Kadah v. Canada (MCI), 2010 FC 1223

Issued: December 3, 2010

Presiding: Justice O’Keefe

For the Applicant: Michael F. Battista

For the Minister: Amy King

This case was a judicial review of a finding that the Applicant, a homosexual Arab Israeli, was not a refugee on the basis that there was sufficient state protection in Israel.

There was no question of the Applicant’s credibility, or that he had faced violent persecution. However, the Board found that Israeli law enforcement would have been willing and able to protect him, and the fact that he was rebuffed the only time he sought help was not a good enough reason for him to have not continued to seek help.

Justice O’Keefe recognized the presumption of state protection, particularly in democratic countries, but also notes that “…democracy alone does not ensure adequate state protection and the Board must consider the quality of the institutions providing that protection (see Katwaru v. Canada (Minister of Citizenship and Immigration) 2007 FC 612 at paragraph 21)” (para. 39).

While the Applicant’s single negative experience with he police was not sufficient to rebut the presumption of state protection, the Board had before it documentary evidence of similarly situated individuals who also were unable to access state protection. While the Board is presumed to have considered all evidence put before it, “where there is important material evidence that contradicts a factual finding of the Board, it must provide reasons why the contradictory evidence was not considered relevant or trustworthy” (para. 43). The Board stated that “‘there is no evidence to suggest that police are not responsive to or fail to investigate complaints by members of the Arab community’” (para. 45), when in fact there was “extensive documentary evidence before the Board regarding Israeli police violence and intolerance towards Arab Israelis and Palestinians” (para. 46). The Board also found that “‘there is no evidence of persecution in Israel based on sexual orientation and, in fact, there are specific laws prohibiting discrimination on such a basis’” (para. 47), which contradicted with the Board;s finding that the Applicant’s testimony of his experiences was credible, as well as documentary evidence of persecution (paras. 48-49).

JUDICIAL REVIEW GRANTED

Thursday, December 16, 2010

Gurshomov–failure to consider relevant circumstances on deferral

Gurshomov v. Canada (MPSEP), 2010 FC 1212

Issued: December 1, 2010

Presiding: Justice Phelan

For the Applicant: Aviva Basman and Jennifer Egsgard, Refugee Law Office

For the Minister: Laden Shahrooz

The Applicant entered Canada with her husband and children in 2003. Their refugee claim was denied, and an H&C application was filed in May 2004 by the husband (para. 2). In 2008, the Applicant separated from her husband and filed and H&C in her own case. This H&C was denied in February 2009, concurrently with a PRRA denial. The Applicant understood that she had received a negative PRRA, but did not understand that the H&C was also denied (paras. 3-4).

Counsel and the Applicant checked the CIC case status website in April 2009 and it stated that there was an H&C pending. Since the husband’s H&C had been denied earlier that year, they took the status to mean that the Applicant’s H&C was still pending. Furthermore, they contacted CIC, and were told that the H&C was still pending and that progress required the payment of fees. As instructed, the fees were paid and further submissions were made on May 8, 2009, followed by additional submissions on May 28 and July 22, 2009 (paras. 5-6).

On July 24, 2009, the Applicant requested a deferral of removal on the basis of the “pending” H&C, which deferral was requested August 14, 2009 (para. 7).

Only on March 25, 2010 was the Applicant made aware of that the H&C had, in fact, been denied in February 2009—she was informed in the context of a removal itinerary (para. 8). She filed a third H&C and shortly thereafter requested another deferral, which was denied. The request was made in part on the risk to the Applicant and her children if returned to Israel where her abusive husband now lived. The Officer focussed on the ability of the children to adjust to the move, and did not address a custody order in favour of the Applicant nor the evidence that it would not be respected in Israel (paras. 9-12).

The Court noted the timeliness of filing and status of an H&C were relevant factors (para. 15). The Court stated that the Officer should have considered the circumstances of the late filing of the third H&C, as well as the fact that because of the miscommunication from CIC, the evidence on the personal risk to the Applicant, addressed only in the submissions which in fact post-dated the refusal, had not been considered (paras. 13-17). The Court held that this was an instance where the Officer failed to address relevant considerations (referring to Simoes) and where “special considerations” were also present (referring to Baron).

JUDICIAL REVIEW GRANTED

Huang–lack of procedural fairness in renewing a temporary residence/study permit

Huang v. Canada (MCI), 2010 FC 1217

Issued: December 2, 2010

Presiding: Justice Phelan

For the Applicant: Mario Bellissimo

For the Minister: Nicole Paduraru

The Applicant was a student from Taiwan who had been in Canada on temporary status since 1997 when he was 12 years old. The judicial review was of the denial of his most recent request for an extension of his temporary resident permit and study permit.

The Applicant had been under permit from 1997 until July 2005, when a request for extension was denied for the first time. Attempts to renew were made, one pursuant to a different quashing order, finally resulting in a renewal in May 2008 until October 2008. The Respondent asserted, but the evidence was not clear, that in May 2008 the Applicant was told that when that permit expired he would have to leave Canada and re-apply outside the country (paras. 2-4).

The Applicant was in fact granted another extension until August 2009, which was accompanied by a written warning that it was “expected” that he would leave Canada upon expiry, but making reference to re-application procedures both from inside and outside Canada. An extension request made before the expiry of that permit was denied, ostensibly because the Applicant had been told he must leave Canada twice and had not complied (paras. 5-6).

The Court found that the “reasons in this case are inadequate because of a) factual error, and b) non disclosure of a key rationale for the decision” (para. 13).

The Officer relied on the Applicant twice failing to comply with instructions to leave Canada, but the evidence did not establish the first caution, and the second “is of dubious nature” (paras. 14-16).

The Respondent Minister also sought to bolster the Officer’s reasons with an additional, and unsupportable rationale:

[18] Further, the “reasons” advanced by the Respondent were said to be contained in the FOSS notes. However, in reply to the Applicant’s affidavit in this matter, the Respondent filed an affidavit of the Officer which in part further explains the reasons for decision. This alone is improper but the Applicant was prepared to live with this procedural faux pas.

[19] The reason for the Applicant’s position is that the affidavit contains further reasons for the decision not previously disclosed. The most critical of which is the Officer’s assumption that the Applicant could leave Canada and reapply from another country – the U.S.

[20] Not only was this assumption or rationale not part of the “reasons”, it ignored the restriction on entry into the U.S. imposed on citizens of Taiwan, particularly those with no status in the outgoing country. This is not a simple case of swinging by Buffalo and dropping off one’s application. The Officer failed to consider that the Applicant would have to return to Taiwan and the consequences thereof.

The Court found that the precise nature of the breaches of procedural fairness did not need to be determined, since it was clear that there were such breaches (paras. 17 and 21).

The Applicant requested but was denied costs.

JUDICIAL REVIEW GRANTED

Friday, October 01, 2010

Kaur – failure to consider all evidence on H&C

Kaur v. Canada (Citizenship and Immigration), 2010 FC 805

The applicant was a widow in her seventies who had moved to Canada to be with her children after the death of her husband. The decision under review was to not grant her permanent residence from within Canada on H&C grounds.

In his reasons, the Officer had stated: “I do not believe that this person would suffer an unusual, undue or unwarranted inconvenience if she had to file her application for permanent residence from abroad as is provided for by the Canadian Immigration Act. The difficulties she will face will flow directly from her wish to remain illegally without the proper documentation in Canada; it is as simple as that.” (para. 17, emphasis added)

Justice Bedard relied on Hinzman v. Canada (Minister of Citizenship and Immigration), 2010 FCA 177 and found:

[18] The officer reached his conclusion on hardship on the basis of one consideration only: the hardship that she might suffer is the result of her own action. He did not address the question of whether the hardship would “have a disproportionate impact on the Applicant due to her personal circumstances”. I am of the view that the officer failed to address the Applicant’s personal circumstances which were central to her H&C application. The immigration officer has discretion as to the weight to be given to the personal circumstances raised by an applicant, but he cannot fail to have regard to the applicant’s personal circumstances.  

Furthermore, the Officer failed to provide adequate reasons.

Judge: Bedard

Date decided: August 5, 2010

Counsel: Andrea Snizynsky (for the applicant), Thi My Dung Tran (for the Minister)

Zemo – PRRA refusal errors on new evidence and no hearing

The applicant, a female former refugee claimant from Eritrea, made a pre-removal-risk-assessment application on the basis that she was a member of the Eritrean Liberation Front and a member of an unregistered church, and as such would be at risk if returned to Eritrea. Both grounds had previously been advanced and rejected. She also made a third, new argument, that she would be at risk as a returned refugee claimant.

The Officer rejected the evidence that the applicant was a member of an unregistered church, despite evidence submitted by the applicant:

[17] In the present circumstances and reading the decision as a whole, the Officer’s decision could only stand if the Applicant’s evidence of membership was not believed. There was more than sufficient evidence as to the risk to members of unregistered churches and there was sufficient evidence, if believed, to establish the Applicant’s membership in that type of church.

[18] Therefore, the Officer, having decided the issue on credibility, failed to consider whether a hearing should be held. The Applicant is not entitled per se to a hearing but the Minister is required to consider whether to have a hearing. In that respect there was an error of law because the Officer never turned her mind to that issue. …

The Officer also failed to properly consider the ground of being a returned refugee claimant, which was not raised before the RPD.

Judge: Phelan

Date decided: August 4, 2010

Counsel: Micheal Crane (applicant), Daniel Engel (Minister)

Diaz – refugee board fails in credibility analysis

Diaz v. Canada (Citizenship and Immigration), 2010 FC 797

In a case of a family from Colombia, Justice Zinn found that the RPD’s decision on negative credibility could not stand. The principal applicant testified that she could not be sure if the agents of persecution were FARC or a drug cartel, but this was not relevant to an assessment of risk under s. 97 (para. 19). The Board could have found her testimony regarding the murder of her husband’s co-worker to be not relevant, since she was not sure of the perpetrator, but the Board was wrong to call this “embellishment” (para. 20). The Board also made several straightforward factual errors, which while not reviewable in and of themselves, “cast some doubt on the thoroughness and accuracy of the Board’s assessment in its totality” (para 21). The Board focussed on whether or not FARC was targeting the applicants, to the exclusion of a complete analysis of the case and the risks. The Board also erred in finding there was an IFA to Colombia. Finally, the Board relied on cases and on the argument that the applicants were exposed to generalized risk, but failed to make an explicit finding of generalized risk.

Judge: Justice Zinn

Date decided: August 4, 2010

Counsel: Jack Davis for Applicants, Ladan Shahrooz for Minister.

Wednesday, August 11, 2010

Gingrich abuses history on Cordoba House issue

As carefully explained at Got Medieval:

Professor Newt's Distorted History Lesson

Newt Gingrich’s claims about how the proposed Cordoba House (or “Ground Zero Mosque” as it is often erroneously called) is named after a massive symbol of Muslim imperialism is so very, very wrong.

(Not mentioned in the post, although raised in the comments, is that the Cordoba mosque is currently a symbol of Christian imperialism, having been catherdralized after the Reconquista.)

Monday, August 09, 2010

Ladies and Gentlemen, Stephen Fry

A brilliant, brilliant commentary on gender identity and the Will/Jack debate by the always engaging Mr. Fry:

There was a time when polari and Julian and Sandy and limp-wristed mincing and winking innuendo were all that came between a certain kind of gay man and his pride, his self-respect and his ability to hold his head high in a hostile world. Read Quentin Crisp’s The Naked Civil Servant or watch John Hurt’s glorious portrayal. It is not the only way for a gay man to be, no one is saying it should be, but it is a wholly proper and acceptable manner (not to mention an often loveable and witty one) and to see it traduced with superiority by the very people who should be supporting and endorsing it sickens me.

Read the whole thing here.

Monday, August 02, 2010

Good news, if true: Israel to cooperate with UN probe

From the Beeb: Israel to co-operate with UN probe into Gaza flotilla

Three cheers for a strong judiciary

I was all prepared to get huffy when this came up on my RSS feeder:

Judging the judges

Is the Supreme Court becoming a threat to parliament?

The article is not anti-judge, as I’d feared, but rather about a strong (activist?) judiciary being a necessary bulwark against a strong executive and a weak legislature. I, of course, always prefer a strong judiciary (assuming they are also competent and just) because I have a deep-seated antipathy for tyranny of the majority and in the face of the decline of the upper houses, the judiciary remains our only chamber of sober second thought. Granted the nobility of the House of Lords has always struck me as quaintly outdated, but I am a firm supporter of the Double-E senate: equal and effective, yes, but certainly not elected. Because an elected Senate, like an elected judiciary, would simply be another tool of the majority and could not be depended upon to protect the minority, responsible as they would be to their constituents.

As for our senate, I’ve always felt it unfairly maligned. Sure it gets stacked be every sitting government, and granted it doesn’t do much in the way of making, as opposed to breaking laws, but it does important work in vetting legislation and studying it, so I don’t think it’s outlived its usefulness yet. On top of which, their decor is awesome:

Senate_of_Canada

Tuesday, July 27, 2010

Federal Court Key Quotes: Failure to Consider Evidence

Courtesy of Justice Russell in Champagne v. Canada (Citizenship and Immigration), 2009 FC 1204

[26] Not having regard for the totality of the evidence is an error of law. See Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652, [1980] F.C.J. No. 192. A claim in which the basic facts have been misconstrued should be set aside. Indeed, the Court has held that misconstruing evidence that forms the basis of the claim is a fundamental error. See Adamjee v. Canada (Minister of Citizenship Immigration), [1997] F.C.J. No. 1815. Moreover, a failure to mention facts that are a basis for the claim also constitutes a reviewable error. Fainshtein v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 941. The Applicants cite and rely on many cases in which a decision has been set aside based on a misapprehension of the facts. See, for example, Mbiya v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1001 and Thambirasa v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 205.

Afanasyev - inadmissibility for espionage, no need for formal relief submissions

Afanasyev v. Canada (Citizenship and Immigration), 2010 FC 737

Decision by de Montigny granting judicial review of inadmissibility under s. 34 (and refusal to grant Ministerial relief under s. 34(2)).

The Applicant served in the Soviet military from 1985 to 1987, and reported on radio transmissions; he was declared inadmissible under 34(a) and (f), namely:

engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;

…or being a member of an organisation that did so.

Justice de Montigny found that the officer’s findings on what, exactly, the Applicant did were problematic on multiple fronts. First, the officer cited both the CSIS explanation of what the Applicant allegedly did and the Applicant’s description, without dealing with discrepancies between the two accounts. Furthermore, the decision was predicated on the officer’s understanding of “espionage”, but nowhere is that understanding explained. (paras. 32-34)

Justice de Montigny also found that the officer failed to consider Ministerial relief under s. 34(2) on the sole ground that there were not formal, separate submission on relief; there had clearly been a request for relief to be considered, and there was relevant evidence on the record (paras. 38-42)

Monday, July 26, 2010

Singh (Yadwinder) - requirement for a passport to be landed

Singh v. Canada (Citizenship and Immigration), 2010 FC 757

Decision of Justice de Montigny. The Applicant sought declatory relief and mandamus, where Citizenship and Immigration Canada had refused to confirm his status as a permanent resident because he did not personally have his passport available. He did not have his passport because it had been seized (the Applicant had a receipt) and appeared to have been lost. The Applicant faced the following catch-22: without a passport he could not regularize his status, and without regularized status he could not obtain a new Indian passport (paras. 5-6). When he did obtain a passport, his clearances had expired. When he received new clearances, a new inadmissibility issue arose. The Applicant successfully argued that he should have been landed in 1998, and that subsequent issues could not therefore bar his landing.

Sandhu - skilled worker - officer must seek clarification

Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759

A decision of Justice Mandamin allowing judicial review on a refusal of a skilled worker application by Canadian High Commission, New Delhi.

On the on hand, "a Visa Officer is not obliged to notify applicants of inadequacies in their applications" (para. 25)

However:
[33] When a Visa Officer has a doubt which has no foundation in the facts and the Applicant puts her best foot forward by submitting a complete application; the Officer should seek clarification to either substantiate or eliminate the doubt. Without seeking clarification, the Officer was in no position to do either.