Umubyeyi—interpretation errors

Umubyeyi v. Canada (Citizenship and Immigration), 2011 FC 69 (CanLII)

Judge: Justice Noël

Date heard: January 17, 2011

Date decided: January 19, 2011

Counsel for Umubyeyi: Isaac Owusu-Sechere

Counsel for Minister: Korinda McLaine

Place of Hearing: Ottawa, Ontario

The applicant is a Rwandan national whose refugee claim was denied on the basis that her testimony was vague, and the applicant alleged on the basis on improper translation (para. 1-2).

The decision notes that the procedural fairness issues of interpretation are to be reviewed on a correctness standard (para. 4). The Court did not review the recording of the hearing and does not speak the language of interpretation, therefore it relied on an affidavit which attested that “there were indeed discrepancies in the translation” (para. 5). The Court noted that the right to interpretation is grounded in s. 14 of the Charter, which is supported by the case law, and gives an applicant a right  to translation “the is “continuous, precise, competent, impartial and contemporaneous” (paras. 6-7).

The judge noted that applicant ought to raise the issue of interpretation at the RPD hearing (para. 7). However, this may not be possible where the language barriers are such that no one can appreciate errors are being made (para. 8).

The judge also noted that there is some division in the jurisprudence on how error-free the interpretation must be to attract reversal by the Court(para. 9). However, “the affidavit evidence is sufficient to establish a concern of the adequacy of the translation at the Board hearing” (para. 10). Specifically, there were translation errors that led the RPD to make a negative credibility finding (para. 11).

As there was nothing to suggest that the RPD Member made any errors (since the interpretation errors were not known during the hearing), the case was sent back to be reheard by the same Member.

JUDICIAL REVIEW ALLOWED

Josile—women as a particular social group

Josile v. Canada (Citizenship and Immigration), 2011 FC 39 (CanLII)

Judge: Justice Martineau

Date heard: December 8, 2010

Date decided: January 17, 2011

Counsel for Josile: Russell L. Kaplan

Counsel for Minister: Helene Robertson

Place of Hearing: Ottawa, Ontario

The applicant was a female Haitian national who had left Haiti in 2005 and had a refugee claim rejected in the United States, following which she came to Canada and in 2007 made a claim on the basis of political opinion, social group Haitian women, and social group family (para. 3). Her father was a minor local official who had been beaten and threatened for cooperating with the police, and she also feared the level of sexual assault and lack of state protection for women (para. 4).

The Refugee Protection Division (RPD) found that the applicant was not credible regarding her family’s situation (para. 5). Regarding the other grounds, the RPD found that she feared criminals, not politically-motivated harm, and therefore was not protected by the Convention (para. 6). Finally, the RPD found that Haitian women do not face persecution as a particular social group, as any persecution they faced was, again, criminal rather than political (para. 7). She challenged the RPD’s legal analysis of criminality versus political persecution.

Justice Martineau noted that:

The situation of sexual abuse and violence against women in Haiti has recently come to the attention of the Federal Court … In this regard, the Court has cautioned the Board not to import into the definition of a Convention refugee, legal requirements which are specific to section 97 when the Board is assessing whether the fear of persecution is based on a Convention ground in light of section 96 of the Act. (para. 11)

Having reviewed the case law, Justice Martineau noted:

Indeed, a gender-specific claim cannot be rejected simply because the group in question or its members face general oppression and the claimant’s fear of persecution is not supported by an individualized set of facts. Where the claimant has not, himself or herself, experienced the type of persecution, he or she fears, the claimant can use evidence of similarly-situated persons to demonstrate the risk and the unwillingness or inability of the state to protect … (para. 22)

Justice Martineau then turned to similar immigration cases (Dezameau v. Canada(Minister of Citizenship and Immigration), 2010 FC 559 (CanLII)) as well as non-immigration jurisprudence (R. v. Osolin, 1993 CanLII 54 (S.C.C.), [1993] 4 S.C.R. 595) as well as the Immigration and Refugee Board’s own Gender Guidelines, all as authority for the proposition that rape and sexual assault, by their very nature, target women as women (paras. 24-27). Therefore, according to those and other authorities, women fearing sexual assault are a particular social group (paras. 28-32). Therefore the RPD’s finding that nexus had not been established was unreasonable (para. 33).

Justice Martineau also criticized the RPD for making comments about the fact that boys can also be victims of rape (irrelevant, since in that circumstance they are a particular social group in themselves) (para. 34); and stated that “The Court is also appalled by certain gratuitous statements of the Board” about the crime of rape (para. 35).

Unusually, Justice Martineau went further than simply overturning the decision by directing the RPD to consider the new circumstances and risks arising out of events in Haiti since the initial claim was heard (paras. 38-39).

JUDICIAL REVIEW ALLOWED

Premaratne—unusual remedy

Premaratne v. Canada (Citizenship and Immigration), 2011 FC 30

Judge: Justice Snider

Date heard: January 11, 2011

Date decided: January 12, 2011

Counsel for Premaratne: T. Viresh Fernando

Counsel for Minister: Kareena R. Wilding

Place of Hearing: Toronto, Ontario

The Applicant was a 28-year-old citizen of Sri Lanka who applied for a study permit to allow her to come attend an eight-month course at George Brown College (para. 1). The Officer denied the request, in part due to a misapprehension of the evidence on the Applicant’s uncle in Canada (para. 2).

This case is unusual in that the Respondent conceded the error and submitted that the appropriate remedy would be to send the application back to be re-determined by a different Officer (para. 3). This is, in fact, the default remedy in immigration judicial reviews (para 5).

The Applicant, however, requested a range of additional remedies:

1. An order directing the Respondent to reconsider the Applicant’s application for a student visa within 30 days of order;

2. An order that, if the Respondent has any concerns with respect to the Applicant’s application, the Applicant be apprised of those specific concerns in writing, within three days, and the Respondent provide the Applicant 15 days in which to respond in writing;

3. An order that the Applicant not be charged additional fees;

4. An order that the Respondent shall adopt non-arbitrary and unbiased criteria for evaluation of student visa;

5. An order that the Respondent adopt procedures to ensure that the decision making process is free of ethnic and religious bias and those procedures be made available forthwith to the Applicant and publicized in Sri Lanka;

6. An order that the Respondent shall not permit the opinions or advice of locally engaged staff, with respect to the authenticity of a visa application, be relied upon by any designated decision maker;

7. An order that all visa applications be made only by properly trained and qualified Canadian visa officers;

8. An order prohibiting the Respondent from defacing passports of persons refused a visa; and

9. An order for costs. (para 4)

Justice Snider noted that re-determination is the default remedy, and stated that she was not prepared to order any of the additional remedies, except an order that the Applicant not be required to pay additional fees (para. 6). Justice Snider also gave her opinion of the other remedies requested:

Regarding #1, she would not so order because the applicant bears the burden of supporting the application, and the case law was already clear as to when an officer must provide the applicant with a chance to respond (para. 8.1).

Regarding #2, Justice Snider found that it was not proper for the court to make an order about the timing of the decision, particularly as the original decision had been made in a timely fashion (para. 8.2).

Regarding #4, Justice Snider declined to make an order that amounted to ordering the Respondent to make a legally valid decision: “It is presumed that the visa officer who decides this matter will make a determination in an impartial, unbiased manner having regard to all of the evidence, the Respondent’s Guidelines and the existing jurisprudence. That is simply a matter of law and common sense; no order is required or appropriate.” (para. 8.4)

Regarding #5, Justice Snider declined to make an order as there was no information before her that visa officers were unqualified or untrained.

Regarding #6, Justice Snider stated that she was not persuaded that the Officer “relied on, or was unduly influenced by, ‘the opinions or advice of locally engaged staff’” (para. 8.6).

Regarding #7, the request for costs, she found there were no “special reasons” as required by the Federal Courts Immigration and Refugee Protection Rules (para. 8.7).

While finding in the Applicant’s favour, Justice Snider also expressed concern with the allegations made by the Applicant towards the Officer, e.g. of criminality and perjury (paras. 10-13).

JUDICIAL REVIEW GRANTED

Sharpe–fair consideration of the evidence in medical inadmissibility, unusual remedy

Sharpe v. Canada (Citizenship and Immigration), 2011 FC 21  (CanLII)

Judge: Justice Phelan

Date heard: December 15, 2010

Date decided: January 11, 2011

Counsel for Becerra Vazquez: Mr. Michael Greene

Counsel for Minister: Mr. Rick Garvin

Place of Hearing: Calgary, Alberta

This was the second judicial review of the decision that the Applicant’s dependant son was medically inadmissible. The Applicant was the principle applicant in a Federal Skilled Worker application to immigrate from the UK (paras. 1, 3).

The Applicant’s application was commenced in January 2004. The Applicant was requested to, and did, provide medical reports on his son’s condition. In July, 2006, the medical officer (MO) provided the London visa post with an opinion that the son’s condition “might reasonably be expected to cause an ‘excessive demand on Canadian social services’” (paras. 3-5).

In about August 2006, the Applicant received a fairness letter warning them of the excessive demand opinion and inviting them to make further submissions. Therefore in October 2006, the Applicants submitted updated reports from various professionals; “All of the letters and reports were to the same effect; that Conor’s needs were such that he no longer required the health and social services earlier reports suggested he did” (paras. 6-7).

The application was refused on May 9, 2007 on the grounds of excessive demand (para. 8). The Applicant wrote to the London visa office expressing concern that the newer information had not been properly reviewed and undertaking to pay for any special schooling or social services. On May 25, 2007, the London visa office responded that the new information had been taken into consideration in the refusal (paras. 9-10).

Justice Phelan characterized the response of May 25, 2007 thusly: “This response was a barefaced falsehood” (para. 11).

The MO’s opinion, on which the refusal was based, was made in July 2006, before the receipts of various relevant documents (para. 11). The Applicant’s filed an application for judicial review which was discontinued when the Minister offered to reconsider the matter (paras. 12-13).

In October 2008, a second MO forwarded an opinion which was nearly identical to the first (para. 14). In March 2009, a second visa officer (VO) sent a second fairness letter maintaining the contention that the son was medically inadmissible (para. 15). In response, the Applicant submitted further new information on his son’s current educational placement, conditional acceptance to a private school in Alberta, and assessments of how the Alberta education system characterized his disability, e.g. as “mild” (para. 16). The 2nd MO reconsidered in view of the new evidence and forwarded an opinion that the son was not likely to be an excessive demand (para. 17).

However, the 2nd VO challenged the 2nd MO’s decision, the result of which was the 2nd MO changing opinions again, this time finding that the son was severely disabled. (paras. 18-19). The application was again refused (para. 20).

Justice Phelan stated: “There are several problems with the Respondent’s conclusion as to the nature and severity of Conor’s disability quite independent of the shabby treatment the Applicant has experienced at the London Visa Office” (para. 26).

In reviewing the decision, Justice Phelan found that the main consideration was whether the son’s disability was assessed as “severe” or “mild” under Alberta policy (para. 27). The only evidence on that particular point was a report stating explicitly that his disabilities would be considered mild; the 2nd MO could not reject this conclusion without reason (paras. 28-31). The 2nd MO had relied on another report describing the son’s disability as “significant”, but no evidence that “significant” meant “severe” in the context (para. 32). The 2nd MO’s other comments on the expense of educating the son were not relevant (paras. 33-34).

This decision is particularly interesting in that Justice Phelan notes that he is considering retaining jurisdiction to ensure that the reconsideration of the Applicant’s file “is completed as expeditiously and as fairly as possible” (para. 39). Justice Phelan further suggested “may be possible to have one person, acceptable to the parties, conduct the necessary assessment and whose report would bind both parties. The Court’s mediation role could be utilized to assist if the parties so request” (para. 40).

JUDICIAL REVIEW ALLOWED