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.

Perez Villegas—failure to conduct proper analysis of membership or terrorism

Perez Villegas v. Canada (Citizenship and Immigration), 2011 FC 105 (CanLII)

Judge: Justice O’Keefe

Date heard: September 21, 2010

Date decided: February 2, 2011

Counsel for Perez Villegas: Lorne Waldman

Counsel for Minister: Angela Marinos

Place of Hearing: Toronto, Ontario

Decision Under Review: refusal of permanent residence on the basis of inadmissibility (s. 34(1)(f))

The Applicant was a citizen of Mexico who in the mid-1990s had raised money and supplied for the indigenous people of Chiapas; he gave these material to Ejercito Zapatista de Liberacion Nacional (EZLN) for distribution, since the Mexican Army has cut off access to the region (para. 4). The Applicant was threatened and sought asylum in Canada, which was granted in 1998 (para. 5). He stated on both the Personal Information Form for his refugee case, and on the application form for permanent residence (PR), that he was a member of EZLN (para. 6). His PR  application was approved in principle in December 1998, however, the ensuing background check took ten years and he was eventually called in for an interview in June 2009 (para. 7).

The officer found that EZLN was a group about whom there were reasonable grounds to believe that they had engaged in terrorist activities, and that while the Applicant was not a formal member he was a member, although the officer did acknowledge “that the applicant worked with the EZLN because it was the only network which could deliver supplies to the poor in Chiapas” (paras. 9-20).

Justice O’Keefe found that the officer had erred in that his reasons “did not explain how his findings amount to membership based on the jurisprudence or the CIC enforcement manual definition of membership”, but rather relied on the Applicant’s previous statements that he was a member (para. 48). The officer made factual findings about the Applicant’s relationship with EZLN but provided no analysis as to whether or how they contributed to a finding of membership (paras. 49-50). Noting that “any finding of inadmissibility ‘should be carried out with prudence, and established with the utmost clarity’”, Justice O’Keefe found that the officer’s finding was unreasonable (para. 51, citing Daud v. Canada (Minister of Citizenship and Immigration), 2008 FC 701).

Similarly, on the issue of whether EZLN was a terrorist organization, Justice O’Keefe found that the officer had erred in simply stating the definition of terrorism from Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1 and then asserting that EZLN’s activities fit that definition (para. 56).

There is a two-step analysis: “First, the decision-maker must show the evidentiary foundation to support a finding that an organization was engaged in acts of terrorism” (para. 54, citing Daud; Jalil v. Canada (Minister of Citizenship & Immigration), 2006 FC 246; Fuentes v. Canada (Minister of Citizenship and Immigration),2003 FCT 379; and Alemu v. Canada (Minister of Citizenship and Immigration), 2004 FC 997)

In the second step, “…the decision maker must provide analysis of the acts the organization has committed and explain how they meet the definition of terrorism. This requires showing the link between the acts and the definition of terrorism provided” (para. 55, citing Naeem v. Canada (Minister of Citizenship and Immigration), 2008 FC 1735, and Fuentes).

Justice O’Keefe found that this analysis was not done:

Even if this Court reviews the officer’s assessment of the EZLN from the previous section, which was not part of his terrorism analysis, the officer does not indicate which evidence he is relying on to conclude that terrorist acts occurred. Moreover, there is no discussion at any point about how any acts of the EZLN were “. . . intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict . . .” …. In fact, the officer mentions civilians only twice in the assessment of the EZLN, both times to note that civilians were killed. He does not analyze how these civilians were killed, by whom, or whether the EZLN condoned or encouraged the killing. The officer mentions one report that said the EZLN had killed non-combatants but, again, the officer did not assess whether they were targeted or intentionally killed. As in Fuentes above, while the officer described some violent acts in the section entitled assessment of the EZLN, he does not show how these acts fit within the Suresh above, definition of terrorism (para. 57).

JUDICIAL REVIEW ALLOWED

Ranu—circular reasoning and inadequate reasons

Ranu v. Canada (Citizenship and Immigration), 2011 FC 87 (CanLII)

Judge: Justice Heneghan

Date heard: September 14, 2010

Date decided: January 26, 2011

Counsel for Ranu: Hilete Stein

Counsel for Minister: Angela Marinos

Place of Hearing: Toronto, Ontario

The Applicant applied for judicial review of the IAD’s decision that she was inadmissible “on the basis of an indirect misrepresentation, that is because her marriage to Sukhdev Singh Hansra was not genuine.” (para. 1).

The Applicant married Hansra in September 2001. She was sponsored and landed in March 2003 (para. 2).

Hansra had previously been married to the Applicant’s first cousin, and although they legally divorced in June 2001, they continued their relationship and had a child in late 2002 (about four months before the Applicant was landed) (para. 3). Hansra and the Applicant separated two months after she was landed and divorced in September 2004 (para. 4).

The Applicant was match-made with a Mr. Ranu. They were married in March 2005 and a sponsorship was begun in June 2005 (para. 5).

In June 2006, an officer interviewed the Applicant and Mr. Hansra regarding the alleged non-genuineness of their marriage (para. 6); at this point, they had been legally divorced for nine months.

The officer found that the marriage had not been genuine and referred the Applicant to a hearing, and in May 2008 the Immigration Division upheld the finding and issued an exclusion order (paras. 6-7).

The IAD found that although “the Applicant may have believed that her marriage to Mr. Hansra was genuine”, it was nevertheless a marriage of convenience. (para. 8).

Justice Heneghan found the IAD’s credibility assessment flawed; for example, in one place it found the Applicant not credible, and later in the decision it stated she was credible (paras. 13-14).

In my opinion, these statements are contradictory, and render the Board’s decision unintelligible. According to Dunsmuir, an unintelligible decision does not meet the standard of reasonableness. (para. 14)

The Justice also found that the Board’s reasons did not explain it findings, “the Board failed to show its reasoning process” (paras. 16-17). Therefore the reasons were inadequate.

JUDICIAL REVIEW ALLOWED