Updates of February
Presentation:
I am a lawyer since 1991 practicing in Canadian Immigration & Citizenship Law and in Administrative Law. I believe that immigration becomes a right as soon as you file your immigration application and pay the required fees. You have the right to be treated fairly, with dignity at all stage of the process and the right to be heard by a competent officer fully aware of the Immigration law, regulations, guidelines applicable to your case and knowledgeable about the documents available in your country of residence. Unfortunately, the competent authorities sometimes fail to insure that these rights are respected despite the fact that breaches have been brought to their attention.
Purpose of this Blog:
Therefore, I intend to share with you the Best of and Worst of (see below) which are constituted of extracts of interview notes, decisions, comments of government officials from MICC, BIQ, Embassies, Consulate, CBSA, CSIS, POE, IAD, IRB etc... until there is no more "Worst of" to report.
Furthermore, the Courts constantly remind us that the Board/Officer’s credibility findings are entitled to a high level of deference and are subject to review on the standard of patent unreasonableness – which is the highest standard in administrative law. Shouldn’t the Officer/Board be called upon to first demonstrate that its members have the required knowledge and abilities in order to deserve such deference? Some of the resume below makes one wonder if such deference given to Board’s or even to immigration officers’ decisions is warranted.
To the immigration practitioners out there, refused or successful applicants, I invite you to share you documented experience with me at
edoyonlawyer@videotron.ca. I assure you that your privacy and/or the one of your clients will be protected. On the other hand, if you wish, your name can appear with the story you will share. The selected stories will be published progressively.
The Best of ….
4) P. FC February 11, 2008, IMM-1646-07. The Court denies CIC’s motion for a reconsideration of a cost award of 5000$ against it; with costs (1000$).
http://decisions.fct-cf.gc.ca/en/2008/2008fc174/2008fc174.html
The Respondent has moved for reconsideration of the Court’s partial cost award of $5,000.00 out of a claimed $13,000.00. The Respondent claims that it has new facts which should alter the Court’s conclusion that the Respondent’s conduct “may not be bad faith, it has a certain air that causes one concern”. The new facts consist of an affidavit from another of the Respondent’s counsel in an earlier proceeding filed presumably to show that the Court’s concern, for a certain “taint” surrounding the manner of treating the Applicant, was unjustified.
The issue of the Respondent’s conduct, the inducing to withdraw an application for a stay on condition of an expedited H&C decision and the virtually immediate negative H&C decision after the withdrawal of the stay motion, was raised by the Applicant in the judicial review.
The Court accorded the Respondent an opportunity, post hearing, to address the issue of costs – which it did.
The evidence now submitted by the Respondent attempting to explain away its conduct is evidence of what had previously transpired and was available to the Respondent at the time of its cost submission. In this regard, the Respondent had notice of the legal issue and the facts in issue, and yet did not put forward the “new” evidence even though it was readily available. Rule 399(2) is not a vehicle for appeal or an opportunity to repair a deficient submission.
The new evidence reinforces the general concern for conduct because it establishes that the deferral decision had essentially been made before the stay application – but it had not been communicated to the Applicant. Therefore, this motion is dismissed. As this motion is unjustified and compounds the Court’s earlier conclusion, the Applicant shall have its costs of the motion in the amount of $1,000.00.
3) Y. FC February 7, 2008, T-2274-06. CBSA seized some 20 000$ unreported.
http://decisions.fct-cf.gc.ca/en/2008/2008fc158/2008fc158.html
Ms. Y. had failed to report that she was carrying the equivalent of over CAN$20,000 in her luggage, contrary to the obligations of s.12(1) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. One of the Customs officers concluded that there was a reasonable suspicion that the currency in Ms. Y's possession was the proceeds of crime and seized the money as forfeited to Her Majesty in right of Canada.
Upon completion of the review, the Minister’s Delegate confirmed that the currency should remain forfeited. Ms. Y. seeks judicial review of the decision of the Minister’s Delegate. The JR is denied.
The Court noted, that the Respondent treads on dangerous ground when processes are put in place that allow submissions to be made without disclosure. The Court would recommends that, in the future, the Respondent put systems in place that would either remove the ability of a Customs officer to provide further comment or provide disclosure of such comments to an applicant.
Ms. Y. put herself in the situation where her currency was seized. The reporting requirement was explained to Ms. Y. and ignored. When confronted with the hidden currency, it was Ms. Y. who provided the contradictory and suspicious explanations for the origin of the currency.
After the seizure, both on her own and through counsel, Ms. Y. made extensive submissions to the Minister’s Delegate. While Ms. Y. took some exception to certain portions of the evidence of Officer C., most of her objections or disagreements were minor in nature. Indeed, the overwhelming thrust of her submissions related to her personal circumstances and the hardship she would suffer if the seizure were maintained. On the critical question of the origin of the seized currency, Ms. Y. provided very little beyond a statement from her father that he had given her a sizable amount of money.
In addition to being completely inconsistent with her statements to Officer C., Ms. Y's father's statement as to the source of funds was not backed up by any financial information. Further, evidence that her sick mother in China required the seized currency provides no evidence whatsoever as to the source of the funds.
There is an evidentiary burden on an applicant in this situation (see for example, Dupre; Ondre; Hamam; Yusufov; Qasem). Reasonable grounds to suspect is a lesser but included standard of reasonable and probable grounds to believe.
Ms. Y. failed to dispel the suspicion that she herself had raised. In short, she failed to provide sufficiently cogent evidence to put the legitimate source of the funds beyond reasonable doubt.
In considering whether the duty of fairness was breached in this case, the Court observes first that Ms. Y. was given the opportunity to file all the evidence and arguments she wished in order to support her claim. Ms. Y. has not made any submissions as to how the disclosure of the missing information would have assisted her. Second, a review of the two memorandums demonstrates that the only information that was not disclosed to Ms. Y. was the conclusions of Officer C.; no new evidence was referenced. Those conclusions relied on factual records which were known to Ms. Y. Accordingly, the missing information would have been of any benefit to her and therefore its non disclosure, in this case, did not result in a breach of procedural fairness.
2) D. FC February 6, 2008, T-589-07. CBSA seized more than 10 000$ unreported.
http://decisions.fct-cf.gc.ca/en/2008/2008fc157/2008fc157.html
Prior to passing through the metal detector, the couple was approached by a CBSA officer who explained "the currency legislation" to them, particularly the requirement to report the export of currency having a value in excess of CAD$10,000. Mr. D. and his wife allegedly stated to the officer that they did not need to make such a report; Mr. D. affirmed that although he was carrying some currency on his person in a money belt, he had counted it prior to checking in and was certain that it was not over the $10,000 limit. Upon examination, however, the officer found that Mr. D., was in fact carrying CAD$7,200; US$3,600; and travellers' cheques worth US$3,500. Mr. D. claimed that he had not realized that he was over the limit and provided the officer with a piece of paper showing his handwritten annotations of the amounts in his possession. However, this paper, which notes “5CN; 3, 7 US; 2000 CN; 3,5 Travel” appeared to record a total in excess of $10,000. The JR is denied.
In the affidavit included in his application record, Mr. D. says that he was not aware at the time of seizure of the $10,000 limit, and that the first paragraph in the reasons of the decision does not accurately set out the statements he made to the customs official.
Having carefully reviewed the e-mail from the CBSA officer, the narrative report and the correspondence exchanged between Mr. M and the applicant's solicitor, and considering particularly the absence of any denial or specific comments in respect of inaccuracies in the facts disclosed to the applicant, the Court is satisfied that the Minister could reasonably infer that the CBSA officer's recollection of the event, and her narrative report, fairly represented what went on during the questioning and seizure. Accordingly, the Court disagrees with the applicant’s contention that there was no basis upon which the Minister’s delegate could conclude that he contradicted himself during his questioning. With regard to the applicant’s argument that there is nothing readily suspicious in the transportation of a sum only somewhat in excess of $10 000 CDA, at no time did the applicant provide any explanation to the Court as to why he would not or could not simply wire the sums in question to Vietnam.
Furthermore, in the absence of any explanation offered by the applicant, it was not arbitrary for the Minister’s delegate to view with suspicion his use of multiple bank accounts, given his apparently modest revenue.
Even without holding the applicant to the burden of proof discussed in Sellathurai, it is clear that by abstaining to point out and provide more cogent evidence or, at least, information in respect of his business (e.g., how long it operated, how long it took him to put aside the money, what if anything he had misunderstood during the interview, why given his rather limited means he had many bank accounts and had failed to disclose this when first asked about it) Mr. D. was taking the risk that the delegate might make a finding against his interest.
With respect to the applicant's comments that the delegate had no grounds to conclude that the source of his funds lacked traceable history, given the lack of details provided by the applicant and the cryptic, totally unsatisfactory nature of the documentation he did provide, the Court has no hesitation in concluding that the Minister's delegate’s conclusion in this regard was open to him.
Customs officers as well as adjudicators and Minister's delegates receive particular training in order to help them detect suspicious indicia. Having reviewed the affidavit of Mr. P, the Court is satisfied that he also possessed experience and training adequate to make the determination he made.
After a probing examination and despite the many flaws raised by the applicant, the Court is satisfied that Minister’s conclusion that there were reasonable grounds to suspect that the seized money was the proceeds of crime is supported by “tenable explanations.”
With respect to the applicant’s allegation of a breach of procedural fairness, the adjudicator very clearly indicated in his “Notice of Reasons for Action” that the documentation and information provided by the applicant was insufficient. Given that nothing more was subsequently provided, there was no need for the adjudicator to make any additional requests. Whether or not the delegate had any positive obligation to seek additional information, in this case he did so. Thus there was no breach.
The Court does not accept that the applicant was in an impossible position. On the contrary, it was his failure to seize the many opportunities afforded him that is responsible for his plight. As noted, even after being provided with the factual information relating to the interview which was before the decision-maker, the applicant failed to provide cogent evidence of what more he could have said, or what other documentation he could have provided, which might have altered the outcome of the ministerial review.
The Worst of CIC’s and RPD of the IRB’s decisions… 50) H. FC February 29, 2008, IMM-2383-07. Failure by an administrative decision maker to use rationality or common sense in a decision can be characterized as a patently unreasonable error.
http://decisions.fct-cf.gc.ca/en/2008/2008fc271/2008fc271.html
The Applicant is a citizen of Pakistan. In October 2001, he applied as a Federal Skilled worker under the occupation of “Purchasing Agent”, National Occupational Classification (NOC) 1225.
The Visa Officer, assessing the Applicant’s file, based his decision upon an assessment of the Applicant pursuant to both the provisions of the former Immigration Act and the IRPA. The Applicant failed to obtain sufficient points under either Act to give rise to the issuance of a permanent resident visa. A request fro reconsideration was received by the Visa Officer. By letter dated April 2, 2007, a Visa Officer responsible for reviewing requests for reconsideration advised that the Applicant’s application had been reconsidered but that his application had been considered on its merits in a letter dated February 6, 2007 and that despite the additional information submitted he still did not qualify and the refusal stood. The JR is allowed.
Did the Visa Officer err in relying on irrelevant or extraneous information when he determined that the Applicant’s Bachelor of Arts degree could not be considered because he had completed it as a private student?
In this particular case, the Court took into account the fact that the visa officer who rendered the decision, S.C. of April 2, 2007, was inexperienced in this field. The transcript of the cross-examination on his affidavit showed that he had only 1 ½ days of training and a short period of experience at the time he wrote the decision (January to March 2007, on a temporary basis and resumed his functions on August 13, 2007).
After a demand of reconsideration, G. M., an experienced officer confirmed the decision but it remains that the determination was made by Mr.C., an inexperienced officer.
The Respondent did not argue that the Applicant did not complete fourteen years of studies. The Applicant’s studies may be broken down as follows:
- High School credential (10 years);
- College - Government College, Baghbanpura, Lahore (2 years);
- Bachelor of Arts (conferred by the University of Punjab) (2 years).
The Visa Officer however awarded zero points for the two-years university level studies completed by the Applicant and awarded only 5 points for his education. The Visa Officer based his conclusion on the fact that the Applicant was a private or external student and therefore had not completed the 14 years of full-time studies. This decision is inconsistent with the definition of “educational credential” found in section 73 of the Regulations as follows:
73 The definitions in this section apply in this Division.
…
“educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue.”
The Respondent did not dispute the fact that the Applicant has a Bachelor’s Degree nor do they contend that the Applicant has completed 14 years of schooling. The Respondent argues that the Applicant was not a full-time student at the time his degree was conferred and that the Applicant was a private student.
During cross-examination, the Visa Officer confirms the Applicant’s assertion as to how an individual would be described as a “private or external student”. The officer explained:
17. Q. And if an individual attended at that specific affiliated college on a full time basis and then wrote his exams through the University of the Punjab, would that person be considered a private or external student, or not?
A. It depends on when they wrote their exams.
18. Q. Okay, explain that to me.
A. So if a candidate attends the college full time, completes all his courses, takes time off in between and writes the exams at the end, he still writes the exams as a private candidate because he wasn’t in full time attendance at the time he completed his courses.
The Applicant’s character certificate from the Government Islamia College, Civil Lines, Lahore, which was provided to the Visa Officer, confirmed that he was a university-registered student in a Bachelor of Arts studies program from 1981 to 1983. In addition, as confirmed by the Higher Education Commission, the Applicant’s Bachelor of Arts degree conferred by the University of the Punjab was recognized as the equivalent to a corresponding Bachelor’s degree involving 14 years of schooling as awarded by other chartered universities/institutions.
Based on the foregoing, the Court finds that the determination by the Visa Officer that the Applicant’s degree was taken as a private student was completely irrelevant to the determination required to be made by subparagraph 78(2)(d)(ii) of the Regulations: this subparagraph requires only that the applicant demonstrate that he has a two-year university educational credential at the bachelor’s level and a total of at least 14 years of completed full-time equivalent studies.
This determination also appears to be completely at odds with the Federal Skilled Workers Program Manual (OP6) which sets out that: Officers should assess programs of study and award points based on the standards that exist in the country of study. The Regulations do not provide comparisons to Canadian educational standards.
In summary the officer in misinterpreting or failing to give effect to documents and a letter of explanation by a competent education authority, whose authenticity had not been challenged, committed a reviewable error. Furthermore, failure by an administrative decision maker to use rationality or common sense in a decision can be characterized as a patently unreasonable error.
49) N. FC February 28, 2008, IMM-1169-07. Brach of procedural fairness by a VO. CAIPS notes are in no way absolute proof that a letter was sent.
http://decisions.fct-cf.gc.ca/en/2008/2008fc265/2008fc265.html
The visa officer denied the applicant’s application for permanent residence under the skilled worker category. The JR is allowed.
The applicant alleges that she was told she would be advised of the new interview date within four to six weeks. However, she alleged that before receiving notice, she received a decision from the officer dated January 16, 2007 rejecting her application.
The respondent alleges that the applicant was sent a letter dated the same day as the first interview (November 20, 2006) advising her that another interview had been scheduled for January 8, 2007. The applicant failed to appear for this interview, and as such, the file was assessed as it was without further documentation or a second interview.
Did the officer breach procedural fairness?
The decision in question was very important to the applicant. Moreover, the nature of the decision and the decision-making process, while not adjudicative, does involve making a decision based on a set of objective criteria (See Chiau). The factual context of this case also calls for a somewhat more than minimal level of procedural fairness. The officer was of the opinion that an interview was necessary to fully understand the applicant’s work experience. There was a requirement that proper notice be given to the applicant concerning the rescheduled interview in order for her to meaningfully participate in the process.
The Court finds that the applicant never received the letter. The Court is particularly persuaded by the fact that a copy of the letter was not included in the file. The officer’s CAIPS notes are in no way absolute proof that the letter was sent. Given the applicant’s responsiveness and genuine interest to immigrate to Canada, the Court is of the opinion that she did not simply receive the letter and fail to appear. The applicant was not given sufficient notice of the interview. As a result, the applicant was not given a meaningful opportunity to participate in the process as required by even the low end of the procedural fairness spectrum.
48) L. FC February 28, 2008, IMM-2507-07. The Board failed to assess whether or not the applicant was a practicing Christian.
http://decisions.fct-cf.gc.ca/en/2008/2008fc266/2008fc266.html
The applicant is a citizen of the PRC. She claims to have a well-founded fear of persecution at the hands of the Communist regime and in particular, the Public Security Bureau (the PSB), by reason of her religious beliefs as a member of an underground Christian church.
The Board accepted that the applicant had established her identity as a national of the PRC. However, the Board found on a balance of probabilities, that the applicant “is not, nor ever was, a member of an underground Christian church in the People’s Republic of China.” The JR is allowed.
The Board erred in not assessing whether or not the applicant was a practicing Christian. The Board states:
. . . Any knowledge that the claimant has learned about Christianity could easily have been acquired here in Canada in order to manufacture this claim.
This is a statement that the applicant had some knowledge of Christianity. It is not disputed that the Board found that the applicant was not a member of an underground Christian church. The Board, however, did not make any ruling as to whether the applicant was a practicing Christian based on the knowledge she had about Christianity and if so, whether she had a well-founded fear of persecution.
47) B. FC February 28, 2008, IMM-2018-07. The RPD conducted a flawed and incomplete analysis.
http://decisions.fct-cf.gc.ca/en/2008/2008fc263/2008fc263.html
The Applicant is a citizen of Iraq. She bases her claim for protection from removal to Iraq on her nationality, Assyrian, her religion, Christian, and her political opinion alleging that she is against the American “occupation” and the current Iraqi government. Further, the Applicant also fears the “insurgents”. The Applicant claims a fear of removal to Australia “…because of the abuse I have suffered [at] the hands of my husband in Australia”. The husband had sponsored the applicant in Australia but later withdrew it. The applicant did not seek permanent status in Australia. The JR is allowed.
The panel finds that the evidence before the panel was that she is a resident of the United States (should read Australia); therefore, exclusion under Article 1 E applies. The panel finds that the claimant would not face a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture, if she were to return to her country of residence.
In essence, in determining the Applicant to be excluded under Article 1 E of the Convention, the RPD simply determined the Applicant to be “jurisdiction-shopping”.
In light of the exclusion decision, the RPD determined not to examine the Applicant’s claim for protection against return to Iraq. The import of the RPD’s decision is such that, if it stands, the Applicant now has no alternative but to return to Iraq, although removals to Iraq are “temporarily” suspended.
The relevant date for determination of a right of return
In Mahdi the Federal Court of Appeal addressed the issue of the relevant date for determination of exclusion under article 1E of the Convention. On the facts before it, Justice Pratte, wrote:
…the real question that the Board has to decide in this case was whether the Respondent was, when she applied for admission to Canada, a person who was still recognized by the competent authorities of the United States as a permanent resident of that country. ….
On the facts of this matter, and substituting Australia for “United States” in the foregoing quotation, there can be no doubt that the Applicant had the status of a resident of Australia “…when she applied for admission to Canada”, albeit that her visa was of a temporary nature.
In CIC v. M., the Court commented on the Mahdi decision in light of a subsequent decision of the Court in CIC v. Choovak. It wrote:
The evidence before the Court indicates that, when the Respondent applied for admission to Canada, to paraphrase the words of Article 1 E of the Convention, he was a person who was recognized by the competent authorities of Germany as having the rights and obligations attached to the possession of the nationality of Germany. That being said, I do not read the words of the Mahdi decision as being absolute. I prefer an interpretation of those words that reflects the rationale provided by Justice Rouleau in the Choovak decision. While Article 1 E should be read in a manner that precludes the abuse of “jurisdiction shopping”, it should also be read, in the words of Justice Rouleau, “…in a more purposive light so as to provide safe-haven to those who genuinely need it…”
On this issue in this context, the RPD wrote:
The first factor to consider is the ability to return and remain in the putative Article 1 E country before this provision can be invoked to exclude from protection under the Refugee Convention. The provision is not limited to a consideration of those countries in which the claimant took up residence as a refugee. The claimant joined her husband in Australia once she was given permission to enter Australia and subsequent to a sponsorship by her husband. The panel finds that the claimant is excluded under Exclusion 1 E.
While the RPD cites the Mahdi decision in conjunction with the first paragraph of the foregoing brief passage, it is not in relation to the element of the Mahdi decision of the Federal Court of Appeal that relates to the effective date for determination of the applicability of Article 1 E. Indeed, the RPD ignores the issue of effective date for a determination as well as the concern that the Court expressed in Manoharan, regarding the impact of the first stated objective in subsection 3(2) of the IRPA. While the Court expressed the view that the passage from Manoharan quoted above was, in the context of that decision, obiter, in refusing to certify a question based on that paragraph, that is not to say that it is for the RPD to ignore entirely the issue of “effective date”.
The Court conclude that the RPD, on whatever standard of review might be applied, erred in a reviewable manner, by conducting a flawed and incomplete analysis, to determine that the Applicant, in her claim for protection, was excluded by Article 1 E of the Refugee Convention.
46) L. FC February 21, 2008, IMM-1193-07. The case was considered even if moot. The removal officer relied on extrinsic evidence.
http://decisions.fct-cf.gc.ca/en/2008/2008fc227/2008fc227.html.
Mootness
The Court had previously stayed the execution of the applicant’s Removal Order until this application is considered and determined. The Court thinks the case is moot since, at this point of time as a result of the stay, there is no effective removal order. However, the Court agrees to consider this principle of procedural fairness since it is an important point of contention between the parties and is not moot in that respect. The jurisprudence has established unequivocally that the duty of procedural fairness applies to important extrinsic evidence being relied upon by an administrative decision maker regardless of whether it is with respect to a decision not to defer the removal or to some other decision under the IRPA. The JR is allowed.
Deferral of removal
This is an application for judicial review of an Enforcement Officer’s decision dated March 20, 2007 denying the applicant’s request to defer his removal from Canada. On March 12, 2007 the applicant requested that removal be deferred until a decision is rendered on his application for permanent residence on H&C grounds. The H&C application was only received by the respondent on March 13, 2007.
The applicant was not represented by counsel at the time and no application for judicial review of the PRRA decision was filed. The applicant has a psychiatric condition.
The applicant’s confusion is somewhat confirmed in the PRRA officer’s reasons, which state:
In his PRRA application the applicant does not state why he has submitted a PRRA application. He does not provide any risk. …
The applicant has submitted a PRRA application however; he has not indicated why he fears returning to his native country Jamaica.
The PRRA officer reviewed the Jamaica country conditions and concluded the applicant would not be “subjected personally to a risk of life or to a risk of cruel and unusual treatment or punishment” if returned to Jamaica. Without the benefit of any personal documentation, the PRRA officer was not aware of the applicant’s personal situation and history of mental illness. On March 12, 2007, the applicant requested that the CBSA defer his removal from Canada until a final decision is rendered in his H&C application, which was received by the respondent on March 13, 2007.
On March 20, 2007, an Enforcement Officer denied the applicant’s request for a deferral. After considering the applicant’s submissions, the Enforcement Officer concluded: I do not feel the factors presented warrant a deferral of removal. In this regard, the [CBSA] has an obligation under section 48 of the [IRPA] to carry out removal orders as soon as reasonably practicable.
In coming to his conclusion, the Enforcement Officer obtained medical information about Jamaica from the CBSA’s Medical Services Branch in Ottawa. This Branch provided information about the availability of the applicant’s drug in Jamaica and the availability of psychiatric care in Jamaica. The Enforcement Officer’s decision set out in detail the psychiatric care available with names and telephone numbers in Jamaica. With this extrinsic information, the Enforcement Officer concluded that the applicant “can receive the necessary care he requires in Jamaica.”
The Enforcement Officer is statutorily bound to remove the applicant as soon as reasonably practicable. However, if the Officer relies on extrinsic evidence not brought forward by the applicant, the applicant must be given an opportunity to respond to that evidence. That is the minimal duty of procedural fairness. In the application at bar, the Enforcement Officer relied on detailed evidence about medical conditions in Jamaica that the applicant contested in an Affidavit of M. G., filed in support of the applicant’s successful motion for a stay of removal.
The respondent argues that a decision under section 48 is a “pressure cooker” decision with tight time frames, and the Enforcement Officer should not be expected to provide the applicant with an opportunity to respond to information obtained by the Enforcement Officer in making the decision. The Court cannot agree. If the Enforcement Officer is relying on extrinsic evidence, the duty of fairness applies. However, in most situations the Enforcement Officer does not need to rely on extrinsic evidence in making a decision. The Court does not think the Enforcement Officer needed to obtain the information about the medical services available in Jamaica before deciding whether to defer the removal of the applicant.
With respect to tight time frames, the applicant has been in Canada for 20 years, and the duty of fairness should not be sacrificed because of an artificial deadline established by the respondent for the applicant’s removal. There is no harm in allowing the applicant another week or two in order to respond to extrinsic evidence upon which the Enforcement Officer intends to rely. If that extrinsic evidence is incorrect, the applicant will suffer great harm.
45) K. FC February 22, 2008, IMM-924-07. S34(2) IRPA. The Minister failed to consider the evidence before him. The Court orders that he reconsiders the case within 90 days.
http://decisions.fct-cf.gc.ca/en/2008/2008fc241/2008fc241.html
This is an application for judicial review of a decision of the Minister of Public Safety and Emergency Preparedness refusing the Applicant’s request for ministerial relief under subsection 34(2) IRPA from the status of inadmissibility prescribed under paragraph 34(1)(f) of the Act. The JR is allowed.
The standard of review of such a decision of the Minister is that of patent unreasonability.
There was a prolonged security check which focused on the question of inadmissibility under paragraph 34(1)(f), supra. At the suggestion of an Immigration Officer, the Applicant applied on May 29, 2002 for the exercise by the Minister [of Public Safety and Emergency Preparedness] based on a requested finding that his presence in Canada would not be detrimental to the national interest. The matter thus was put in the hands of the CBSA. Nearly four years later, that Agency gave to counsel for the Applicant a draft of its briefing note which would be provided to the Minister to advise him as to the exercise of his power under subsection 34(2). This note recommended against a decision by the Minister in the Applicant’s favour: that is, CBSA recommended against a finding that the Applicant’s presence in Canada would not be detrimental to the national interest.
The Applicant was given an opportunity to comment on this draft-briefing note before it was sent to the Minister. On March 31, 2006 he submitted a statutory declaration and considerable other documentary material. On July 25, 2006 he submitted country reports on Lebanon. After receiving this material the CBSA on August 30, 2006 sent the briefing note to the Minister. That final version of the briefing note was, apart from a few editorial changes, identical to the draft briefing note given to the Applicant in February, 2006. The only recognition that further submissions and evidence had been provided to the Agency was an addition to the list of “enclosures” at the end of the briefing note which listed as an additional item:
Further submissions from disclosure process.
Attached to this briefing note was a decision form which simply stated “Based on my review of the materials submitted, Ministerial relief is”: there then followed one line for the Minister to sign if he approved Ministerial relief and another line for him to sign if he denied Ministerial relief. The Minister signed on the “denied” line on February 12, 2007.
There is no indication of any reasons originating with the Minister and the Court must therefore assume that the briefing note upon which his decision was based provides the reasons for the decision. While the Minister’s power under subsection 34(2) is non-delegable and must be exercised by himself, it is proper to treat the CBSA’s briefing note as his reasons.
The further submissions and statutory declaration submitted on behalf of the Applicant on March 31, 2006 pertained to several factors which should have been considered by the Minister. The new denial of membership in the ANO should have been considered even if it were ultimately disbelieved. Evidence of the claimant’s further establishment in Canada since 2002 and the hardship he and his family had endured since that time, plus the particular hardship of the Applicant’s status as a stateless person deserved consideration as did the evidence of his affirmation of opposition to terrorism and his new membership in the Mennonite Church of Canada. None of these factors were mentioned even for the purpose of dismissing them in balancing the exercise of the ministerial power.
A tribunal need not mention every bit of evidence considered, but when the evidence is sufficiently important and is not mentioned, a Court may infer that it was not considered (See Cepeda-Gutierrez). Instead, in the closing words of the briefing note (which must be taken to reflect the Minister’s views) it is said that:
… Mr. K’s lengthy membership in an organization listed as a terrorist entity, coupled with his obvious lack of credibility, makes it impossible for CBSA to make a recommendation that his presence in Canada would not be detrimental to the national interest… .
This seems to negate the purpose of subsection 34(2) which contemplates that even persons who are or have been members of a terrorist organization might be admissible if “their presence in Canada would not be detrimental to the national interest”. The assumption of the quoted rationale seems to be that if a person has wrongly denied membership in a terrorist organization he will always be a threat to the national interest of Canada. It does not consider, for example, that even if the Applicant had been a member of ANO and whatever the quality of that membership, he had been absent from Lebanon and the activities of the ANO for 14 years prior to the Minister’s decision.
The decision seems to have turned on the simplistic view that the presence in Canada of someone who at some time in the past may have belonged to a terrorist organization abroad can never be in the national interest of Canada.
The Applicant requests that a deadline be set for the Minister’s reconsideration under subsection 34(2). Considering the gross delay in the issuance of the last decision (nearly five years) the Court believes this would be appropriate. While recognizing the exigencies of ministerial responsibility but the Court believes that a deadline of 90 days would not be unreasonable, considering the personal difficulties of the Applicant and his family.
44) F. FC February 22, 2008, IMM-6746-06. VO’s failure to exercise the discretion under 76 (3). http://decisions.fct-cf.gc.ca/en/2008/2008fc243/2008fc243.html
This is an application for a judicial review of the decision of a Visa Officer refusing the Applicant’s application for a permanent resident visa. The applicant had asked that an analysis under 76(3) be made. The JR is allowed.
In her decision the Officer set out the points assessed by her. They were the same as the points proposed by the Applicant’s consultant except that he recommended 16 points for the Applicant’s first official language proficiency and the Officer awarded 12. He suggested four points for adaptability and she ordered none. The net result was that the total points awarded were 63, four points short of the required 67. She stated her conclusion in two ways as follows:
You have not obtained sufficient points to satisfy me that you will be able to become economically established in Canada. I have communicated my concerns to you and taken your reply into consideration.
The purpose of subsection 76(3) is to allow an exception to be made to the point system where the Applicant’s chances of becoming successfully established in Canada is greater than is reflected in the points assessment.
To obtain such advantage the Applicant must request the exercise of the discretion and must give some good reasons for it. However, such reasons need not be elaborate and may consist of a more full description of the Applicant’s background, education, and work experience and knowledge of an official language of Canada. What is being alleged here is the failure of the Visa Officer to consider the question of whether the discretion should be exercised, not that it was exercised wrongly. While a failure to exercise the discretion has often been treated as a breach of procedural fairness (see Nayyar) it appears to involve a question of law: namely has the Visa Officer taken every step that the law requires? In either case the standard of review is correctness.
There is nothing in the Officer’s decision to indicate that she considered the question of whether a favourable discretion should be exercised in respect of the Applicant. The Respondent relies on the passage quoted above where the Officer says that she is not satisfied “that you will be able to become economically established in Canada”. It is said that this tracks certain language in subsection 76(3) and thus indicates some attention to the exercise of the discretion provided there. But it is equally true that it tracks language in subsection 76(1) setting out the point system requirement. The passage quoted follows immediately after the statement that the Applicant had not met the requisite number of points in her assessment and this seems to be simply an affirmation of the result that the Applicant had not met the requirements of subsection 76(1) and (2).
43) A. FC February 22, 2008, IMM-1493-07. H&C. The Officer was not “alert, alive and sensitive” to the grandson’s interests.
http://decisions.fct-cf.gc.ca/en/2008/2008fc240/2008fc240.html
This is an application for judicial review of a decision rejecting the Applicant’s request for an exemption on H&C grounds to allow her to apply for permanent residence status from within Canada.
The Applicant asks that that decision be set aside on the basis that it failed to assess properly the best interests of the Canadian child, that is the Applicant’s grandson; and that the Officer failed to assess the totality of the evidence.
In her consideration of the application, the Immigration Officer noted the discrepancies in facts as between the earlier application for a visitor’s visa and the application for H&C consideration. She had asked for a clarification of these matters and the Applicant had provided none. She took note of the medical evidence and interpreted it as indicating conditions that were “minimal; mild”. With respect to family relationships, she said only this:
I recognize that the Applicant has redeveloped a relationship with her daughter in Canada; as well she has developed a bond with her 15-year-old grandson since her arrival here in Dec ’03. This daughter came to Canada in 1989 and was granted PR status in 1996. There is no indication that the Applicant has previously visited Canada or that the daughter has visited Nigeria since 1989. I recognize that the Applicant may help out with chores and other duties in her daughter’s home. However, I am not satisfied, based on the information before me that the daughter would not be able to manage on her own, with the assistance of her 15 year old son if need be.
She concluded by saying she was not satisfied that the Applicant would be unable to return to Nigeria to reside with one of her five children while making her application for permanent residence from there. She therefore dismissed the application. But the only consideration of this in the Officer’s reasons was part of a sentence where she said that:
I recognize that the Applicant … has developed a bond with her 15-year-old grandson since her arrival here in Dec. ’03.
This does not demonstrate that the Officer was “alert, alive and sensitive” to the grandson’s interest. She devotes far more attention to the discrepancies between the visa application and the H&C application. While those remained unexplained, they do not have much to do with the humanitarian and compassionate issues raised by sending a 75-year-old woman, who can be readily supported by her family in North America, back to Nigeria to make an application, thus severing the relationship she has developed with her grandson (a grandson she had never known before) over the last four years. While it is for the Minister’s representative to weigh the various factors, it is not clear in this case what factors of public policy militated against the interests of the grandson.
42) M. FC February 21, 2008, IMM-1504-07. The Board breached procedural fairness and did not address relevant and important evidence of the applicant’s.
http://decisions.fct-cf.gc.ca/en/2008/2008fc226/2008fc226.html
The applicant, a 36-year-old Zimbabwean citizen, seeks refugee protection in Canada on account of his political opinion and membership in the Zimbabwe opposition party, Movement for Democratic Change (MDC). The applicant states his problems in Zimbabwe began after he became the chairperson of a youth league chapter of the MDC.
The Board rejected the applicant’s refugee claim. In its decision, the Board found the applicant lacked credibility and did not believe his allegations of persecution. The JR is allowed.
The applicant argues the Board erred in basing its decision, in part, on his delay in leaving Zimbabwe. The Court agrees. The Board’s reasons refer to the delay as evidence of a lack of subjective fear.
The applicant submits, and the Court agrees, that since the Board’s screening form did not identify delay as a potential issue, the Board breached procedural fairness in relying on any such delay without first notifying the applicant.
The Court also concludes that the Board erred in its assessment of the documentary evidence. The case law is clear that when assessing an applicant’s objective risk of harm in returning to their country of origin, there may be instances where, having accepted the applicant’s identity, the objective documentary evidence is such that the claimant’s particular circumstances make him a person in need of protection despite the fact that the Board has found the claimant lacks credibility.
While the Board held that it was not persuaded that the applicant had a high profile in the MDC, the Board did not find that the applicant was not a member of the MDC. The Board did not address relevant and important evidence of the applicant’s membership in the MDC, namely his MDC membership card from Zimbabwe, the letter from the MDC in Zimbabwe that the applicant is an active member, and a letter from the Office of the Secretary General of the MDC dated April 25, 2002, confirming that the applicant was a “very active member of the MDC” and that his father is the MDC Councillor for Ward 22-Hatfield in Zimbabwe.
The Board has a burden of explaining why it did not consider this evidence about the applicant’s membership in the MDC when the documents appear squarely to contradict the Board’s conclusion. The U.S. Department of State report [for Zimbabwe] is objective evidence that membership in the MDC is sufficient to place a person at risk of harm. …
The Board’s failure to consider this important objective evidence is an error of law in considering whether a member of the MDC in Zimbabwe is a person in need of protection. In Canada, the applicant was a member of a Canadian branch of the MDC. The applicant testified that if he returned to Zimbabwe, he would intend to continue being a member of the MDC. In this regard, the Board must assess whether the applicant is at risk of serious injury from the Zimbabwe government in accordance with my Judgment in Chavi.
Credibility:
The Court concludes however that when taken as a whole, the applicant’s testimony and evidence creates serious concerns over when the alleged events occurred. The applicant has an onus to proffer evidence corroborating his claims of persecution: (See Kovacs). While the applicant in the case at bar provided a number of personal letters attempting to support his claim, none of them include any reference to when the alleged events occurred. As well, while the medical report attests to a date of treatment, the letter itself is not dated. Accordingly, when taken as a whole, the applicant’s testimony and corroborating evidence made it reasonable for the Board to reach a negative credibility finding.
Further, given that the Board found the applicant lacked credibility in respect of his testimony surrounding the alleged attack, it was open to the Board to conclude that the letters should be accorded little weight as evidence of the applicant’s story: (See Kalangestani & Hamid).
The applicant argues the Board erred in finding that it was implausible for him to have been engaged in the MDC in January 1999 despite the fact that the MDC was not officially created until September 1999. The Court concludes that the applicant’s lack of evidence in this regard justified the Board’s finding. Further, it is clear that even if the Board had accepted the applicant’s testimony that he was involved in the MDC prior to its official formation, there are sufficient other findings upon which the Board’s negative decision can properly rest. Accordingly, the Court concludes that the Board was justified in finding the applicant lacked credibility, and will not intervene on this basis.
41) K. Jabari FC February 21, 2008, IMM-2089-07. S97 IRPA. The Board did not provide sufficient reasons. The Board made erroneous findings of fact respecting credibility, which were patently unreasonable.
http://decisions.fct-cf.gc.ca/en/2008/2008fc225/2008fc225.html
This is an application for judicial review of a decision of RPD concluding the applicant, a 17-year-old citizen of Iraq, was not a Convention refugee or person in need of protection. This is a case where a boy was sent by his father to seek refuge in Canada from violent tribal revenge against his family in Iraq.
The Board held that the applicant’s credibility was the determinative issue in its decision, and found the applicant was not credible with respect to the material elements of his testimony. In its decision, the Board made a number of negative credibility findings relevant to this application. The JR is allowed.
The Court concludes that the Board did not make a reviewable error in its treatment of the applicant’s fears. While the Board’s reasons could have more effectively outlined the nature of the applicant’s fears, it is clear from the record that the Board member understood that the applicant did not fear his uncle, but rather his uncle’s notoriety and reputation.
However, the applicant also submits that the Board erred in summarily discarding these reasons without addressing them in the context of an analysis under section 97 of IRPA.
It is clear that the Board made erroneous findings of fact respecting credibility, which were patently unreasonable. First, there are no inconsistencies between the applicant’s evidence regarding whether he was confronted by members of the Mihayedn tribe. Second, the applicant’s evidence regarding the events following the shooting was not inconsistent. These patently unreasonable findings of fact are material to the Board’s credibility finding about the applicant’s principal fear and reason for fleeing Iraq. Accordingly, the Court sets aside the decision.
Did the Board err in failing to analyze whether the applicant faces an objective risk of persecution if returned to Iraq?
The applicant raised two separate reasons why he feared returning to Iraq. These reasons, as outlined above, were that he feared potential persecution at the hands of both the Shia militia and anti-American militants because of his ethnicity and because of his paternal uncle’s reputation as a Kurdish fighter and American sympathizer. The Iraqi country conditions establish that there is significant ethnic violence in the country.
Moreover, if the applicant’s principal claim is held to be credible, then he may face a serious risk to his life because of ethnic violence against his family, and the objective documentary evidence may show that there is not adequate state protection in Iraq.
Accordingly, the Court agrees that the Board did not provide sufficient reasons to address this important issue, and the Court must remit this issue back to the Board.
40) H. FC February 21, 2008, IMM-1445-07. CBSA automatically applied new guidelines to a case governed by former guidelines. Failure to consider the evidence. Analysis of the notion of residence by the Court.
http://decisions.fct-cf.gc.ca/en/2008/2008fc234/2008fc234.html
The Applicant acted as a bondsperson for Mr. S., a brother-in-law of a friend. S. was being held at the time in July 2002 by the CBSA pending a decision on his claim for refugee status. The Applicant posted two bonds, a cash bond in the sum of $5,000.00 and a performance bond also in the sum of $5,000.00. S. had temporarily left the assigned residence during renovation without advising CBSA. As matters turned out, S. was ultimately removed from Canada and the Minister will not return the money for either bond to the Applicant who now seeks judicial review of the decision not to return either bond. For the reasons that follow. The JR is allowed.
The standard of review in matters respecting the return or forfeiture of bonds of this type has been considered by Justice Mosley of this Court in Kang. He considered other decisions of this Court and stated that the jurisprudence is complex and still evolving. While at least one decision (Tsang) says that the standard is correctness, another (Khalife) says that it is reasonableness. Justice Mosley determined that he would examine the matter on the basis of reasonableness and so does the Court, except as to matters of law where the standard is correctness.
CIC provide guidelines for use by their officials, in making determinations in the discharge of their various duties. These guidelines do not have the force or effect of an Act or Regulation but have been recognized as providing assistance to the Court in determining whether discretion has been properly exercised (See Kang). Up until this point, these guidelines and, in particular, “ENF 8, Deposits and Guarantees” said with respect to forfeiture of a bond:
Delegated CIC or CBSA officers should consider each case on its own merits. … The manager will determine whether it is appropriate to settle for an amount less than that originally stipulated in a guarantee on a case-by-case basis, according to regional guidelines.
Those guidelines changed effective February 11, 2007. The second excerpt quoted above was changed to read: CIC and CBSA managers and officers have discretionary power to decide whether a breach of conditions is severe enough to warrant the forfeiture of the deposit or the guarantee. However, CIC as well as CBSA managers and officers do not have discretionary power to reduce or otherwise alter the amount of the deposit or guarantee.
Thus while it appears that every situation must be considered on a case-by-case basis, the policy to accept a lesser payment has been replaced with a policy that the amount cannot be reduced but consideration must be given as to whether the breach was “severe enough”.
The Minister’s official did not respond to the Applicant’s lawyers’ letter of January 29, 2007 until March 7, 2007 which was after the change in policy. The official wrote:
… Unfortunately, I am governed by Chapter ENF 8, Deposits and Guarantees, which has been recently changed February 11, 2007 to Section 7.8 and a paragraph has been deleted. In addition, the title of the Minister of Public Safety and Emergency Preparedness has been changed to the Minister of Public Safety. The recent manual inductions clearly direct Managers not to take partial escheatment. I have enclosed the Chapter 8 as a reference including paragraph highlighted 7.8 Deposit and Guarantee given by a third party. …
This letter is not correct in at least two respects. First, the post February 11, 2007 policy does require an exercise of discretion; it requires a consideration as to whether the breach of conditions was “severe enough”. Second, the official did not recognize that since the dispute arose when the old guidelines were in force, consideration had to be given to applying those old guidelines to the situation at hand.
In Kang: In cases decided under the former Immigration Act, this Court held that while a breach of condition was a condition precedent for the exercise of discretion, the Officer must still turn her mind to the exercise of discretion when deciding whether to declare a bond forfeited: (See Gayle and Bcherraway). … The respondent Minister conceded in Uanseru that notwithstanding the change in the legislation, the officer retained the discretion not to declare a performance bond forfeited where there has been a breach of the terms of release. There was a similar concession in Khalife. Moreover, in Khalife, the officer had exercised her discretion to order a lesser amount forfeited. The issue in that case was whether she was required to consider the degree of fault of the subject or surety and apply proportionality principles similar to those developed in the criminal courts for escheats of bail bonds.
It is clear from the Record and the Minister’s official’s correspondence that they did not act reasonably in that they did not give sufficient consideration as to what the word “residence” means. It is a word of the Minister’s own choosing, the Minister put that word in the printed form setting out the conditions of bail. If that word is in any way ambiguous it is the Minister’s responsibility to assume the risk of any ambiguity.
In law, the word “resident” or residence is one that must be considered carefully having regard to all the circumstances. There is no precise or single meaning. Residence is not to be confused with temporary move or sojourn. The leading authority often quoted in these circumstances is Thompson v. Canada (Minister of National Revenue), [1946] S.C.R. 209 which, while a tax case, is referred to often in numerous non-tax cases. In that case, Rand J. said at page 224:
The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance “residing” is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new.
The question of residence was considered extensively by this Court in the decision of Harkat. “Reside” involves consideration of many things including: whether a person “usually” sleeps every night at a certain place; were absences for temporary purposes; what was the intent of the persons involved; and whether there was an intent to return; are among the matters for consideration.
While the supervising sureties were not each obliged to sleep at the residence every night in order for Mr. Harkat to reside with them, his residence had to be the place where they usually returned to and slept at night. Such an interpretation of “reside” is consistent with that applied by the High Court of Justice in Abu Rideh v. Secretary of State for the Home Department, [2007] EWHC 2237 (Admin) at paragraphs 11 and 33. So long as the supervising sureties’ absences from the residence were each for a temporary purpose and they intended to return to the residence, the sureties resided with Mr. Harkat and he with them.
…
Repeated correspondence from the Applicant’s lawyers as to his side of the “residence” story seems to have fallen on deaf ears. The Tribunal Record shows no serious consideration of those submissions. The Minister has chosen to file no evidence. Thus has provided no enlightenment as to the true deliberations made and all the factors taken into account.
Taking the Minister’s position as to “residence” at its highest, there is still a clear and lively debate as to whether it is applicable in the circumstances of this case. The Minister failed to recognize that debate or, if he did, failed to recognize that an exercise of discretion must be applied in determining whether (old Guidelines) to return some or all of the bonds or (new Guidelines) whether a “severe enough” breach had occurred so as to justify the return of the entire amount or not.
The issue is not simply who was right or wrong on “residency”. Rather, the issue is the failure to recognize that a legitimate dispute exists and, as a result, to exercise discretion.
It is clear from the record that the Minister’s officials failed to give appropriate consideration to what is meant by residency or to apply an appropriate meaning to the circumstances of this particular case. Had the officials done so they would recognize that there is a genuine dispute on the facts of this case and would either have returned both the cash and performance bonds to the Applicant as under the new policy there can hardly be said to be a breach that could in any way be considered “severe enough” or under the old policy, returned the entire two bonds to the Applicant.
The Application will be allowed with costs. Since the Minister is still garnishing the Applicant’s wages to satisfy the performance bond, the continuation of that garnish is prohibited until final determination of the Minister’s reconsideration of this matter.
39) CIC v. N. FC February 21, 2008, IMM-5785-06. The Board ignored evidence. http://decisions.fct-cf.gc.ca/en/2008/2008fc235/2008fc235.html
The “Applicant seeks judicial review of the decision of the RPD who determined that the applicants were persons in need of protection, although not Convention refugees, and accepted their claims. The JR is allowed.
According to the Notice of Intent to Participate, the Applicant wanted to participate in the hearing because he had received information that the Principal Respondent was wanted in Mexico for charges of fraud relating to a cheque that had been issued on November 20, 2003 to one A.A.R. for the purchase of cattle. The cheque was rejected on December 5, 2003 because there were insufficient funds in the payer’s account to cover it. The Applicant took the position in the Notice of Intent, that the Principal Respondent was inadmissible pursuant to section 1F(b) of the United Nations Convention Relating to the Status of Refugees, on the grounds that there were serious reasons to believe that he had committed a serious non-political crime.
When questioned on behalf of the Applicant about the outstanding charge at the resumption of the hearing, the Principal Respondent stated that he became aware of the outstanding charge and warrant in May 2004, upon being advised of same by his lawyer in Mexico. When asked to explain why he had not mentioned these matters at the earlier sitting before the Board, the Principal Respondent testified that he had no documents to substantiate the charge and the warrant and it did not occur to him to get a letter from his lawyer in Mexico.
In this case, the Board determined that the fraud charge was “trumped-up” and fraudulent because it found the Principal Respondent to be credible. The Board erred in making this credibility finding because, in doing so, it apparently ignored the evidence of the existence of the outstanding charge, the outstanding warrant of arrest and the non-disclosure of this evidence by the Principal Respondent at the earliest possible time. This evidence, had it been considered by the Board, may have affected its credibility findings. As noted by the Court in Cepeda-Gutierrez, the more important the evidence that is ignored by the Board, the more likely the Court will infer that this decision was made without regard to the evidence.
38) A. FC February 21, 2008, IMM-2967-07. S97. The Board failed to deal with the documentary evidence and assess the applicant’s risk.
http://decisions.fct-cf.gc.ca/en/2008/2008fc228/2008fc228.html
The applicant, a 29-year-old Ethiopian citizen, arrived in Canada on April 5, 2006 claiming refugee protection because of his political beliefs. Specifically, the applicant fears arrest, detention, and torture on account of his opposition to the Ethiopian government and membership in the Coalition for Unity and Democracy (CUD), an Ethiopian opposition coalition.
The RPD concluded that the applicant was not a Convention refugee or a person in need of protection pursuant to sections 96 and 97 of the IRPA lacked a well-founded fear of persecution. While the Board accepted the applicant’s identity and his membership in the CUD, it drew a number of negative inferences on the basis of inconsistencies and implausibilities in the applicant’s testimony. The Board also found no basis on which a claim could be sustained under section 97 of the IRPA.
The documentary evidence before the Court in this application crosses the threshold where the Board is not required to provide further analysis on the specific elements of section 97. The documentary evidence establishes that ordinary and suspected members of the CUD have been subjected to arbitrary arrest, detention, and abuse at the hands of the Ethiopian government: see the 2005 U.S. Department of State Country Reports on Human Rights Practices – Ethiopia and the letter from Amnesty International dated February 6, 2007. Further, the documentary evidence speaks of the possibilities of persecution for ordinary members and sympathizers of the CUD, without regard to levels of activity or leadership within the party.
The Board failed to deal with the documentary evidence and assess the applicant’s risk. Its conclusion is unsupported by any reasoning or rationale.
37) S. FC February 20, 2008, IMM-2938-07. The Officer fails to provide any analysis of the issue of corruption in the police force and fails to analyse applicant’s fear. The officer’s reasons are also inadequate.http://decisions.fct-cf.gc.ca/en/2008/2008fc231/2008fc231.html
The Applicant submitted a PRRA application in January 2007 and, with further evidence, a second application was filed on April 11, 2007. A decision against the applicant was given by the PRRA officer by letter dated July 9, 2007. It is this decision that is under review. The JR is allowed.
It appears that the Romanian police did apprehend the men who had attacked the Applicant. They were convicted and sentenced to imprisonment. They are now out of prison and at large in Romania. The evidence is that persons of this kind endeavour to recapture their former victims and seek to traffic them again or to punish them. The Applicant has attested that she fears her former traffickers will indeed find and put her at serious risk.
It is important to note that the PRRA Officer made no credibility findings concerning the Applicant’s affidavit or the new evidence.
No basis in the evidence exists to assume the Romanian police have developed sufficient capability and expertise to make a credible, earnest attempt to arrive in time to protect a person, such as the Applicant, from her traffickers before she is subjected to harm. (See Garcia).
The PRRA Officer has erred in failing to recognize that while the Romanian state has made some commendable efforts in its attempt to stem human trafficking, and enacted laws to prosecute traffickers, the documentary evidence treating the scale of trafficking in women and children in Romania indicates that sample prison terms, in and of themselves, simply, are not effectively addressing the problem and protecting women in the Applicant’s position.
The Officer fails to provide any analysis of the issue of corruption in the police force, identified as rampant in several of the sources, and how this would effect the ability of the Applicant to receive on-the-ground protection, at the local level, from the individuals she fears. The DOS Report cites police corruption as being a major obstacle in effectively protecting women in the Applicant’s position. The DOS Report states: “Corruption in the police, particularly local forces, contributed to trafficking. There were frequent allegations that border police and customs agency officials accepted bribes to ignore cases of trafficking.”
The Officer mentions this noted serious deficiency, but then fails to provide any reasoning as to how it applies to his state protection finding. In this sense, in addition to not analyzing this evidence, the Officer’s reasons are also inadequate.
Amnesty International concludes that the law against trafficking in Romania has not led to any noticeable improvement in the serious problem of human trafficking. In reported cases, law enforcement officers failed to take effective action to protect women. Other sources note the endemic problem looms large. Although prosecutions are taking place, these do not include the “coordinators of the criminal networks”.
The Officer does not address this evidence. Instead, the Officer refers to only one documentary source in his reasons, the DOS Report for Romania, quoting large sections of it. No weighing of the evidence or reference to other sources of evidence that support the Applicant’s submissions about police corruption and lack of police effectiveness is mentioned by the PRRA Officer.
The PRRA Officer also fails to address the Applicant’s fears that:
C. is described as a recidivist criminal in the Romanian Court judgment, indicating that previous criminal punishment did not deter him from committing further crimes. C. demonstrated that he was not afraid of the police in yelling out a death threat against the Applicant, at the police station, in front of police officers. C’s men continued to visit the Applicant and her mother after she was able to escape from them. After she gave her statement to the police, they continued to look for her subsequent to her departure from Romania for Hungary, and after members of the trafficking ring were convicted on April 25, 1998.
The Applicant’s mother has learned from a friend of the Applicant, M., that C. has returned and is living in Arad; furthermore, there is a connection to C. as M’s ex-boyfriend was in jail with C. and is still known to him. C. and the other men, convicted in 1998, have a new and strong reason to take issue with the Applicant and to cause her harm.
This information should have been addressed in assessing state protection. At a minimum, a need exists for the matter to be considered. As no reference is made to this evidence, it appears to have been ignored.
36) L. FC February 20, 2008, IMM-1538-07. The Visa Officer’s decision does not begin to approach the complexity of the interplay between paragraph 117(9)(d) of the Regulations and subsection 25(1) of IRPA. http://decisions.fct-cf.gc.ca/en/2008/2008fc219/2008fc219.html
On August 6, 2006, the applicant made a new application for permanent residence in Canada as a member of the family class with exemption from the requirement that she be under the age of twenty-two. In addition, the applicant’s representative asked for a direct consideration under subsection 25(1) of the Act on the basis that there are sufficient compassionate and humanitarian grounds to grant permanent residence to the applicant. On February 1, 2007, the Second Secretary decided that the applicant was not a member of the family class with respect to her sponsor. He also concluded that after reviewing her case on H&C considerations, it was not justified by H&C considerations to grant her permanent residence status or to exempt her from any applicable criteria or obligation of the Act. The JR is allowed.
The Visa Officer’s decision does not begin to approach the complexity of the interplay between paragraph 117(9)(d) of the Regulations and subsection 25(1) of IRPA. It does not disclose any analysis of the factors for and against allowing an exemption from paragraph 117(9)(d) of the Regulations, and therefore, does not show that any balancing was done to determine whether, in the particular circumstances of Mr. L., H & C factors existed to overcome paragraph 117(9)(d).
While it is not the role of the Court to re-weigh the evidence, it must be satisfied that the totality of the evidence has been thoroughly reviewed by the decision-maker. This appears not to be the case and the few indications mentioned in the CAIPS notes do not provide a clear rationale of why any of the public policy considerations mentioned by the First Secretary (such as the past misrepresentations) should prevail here over the objective mentioned at paragraph 3(1)(d) of the Act “to see that families are reunited in Canada”. Nor do they reveal whether the First Secretary considered that de facto family members excluded from the family class because of the operation of paragraph 117(9)(d) of the Regulations may suffer hardship indefinitely.
In addition, it is clear from the evidence submitted in support of the application that no “omission” is alleged for the non-declaration of the applicant. Although this choice was deliberate and related to family image, the Second Secretary nonetheless had to analyse the H&C factors to see if, in the circumstances, an exemption from paragraph 117(9)(d) of the Regulations should be granted. The applicant provided an extensive explanation as to why, when he came to Canada, he did not mention the applicant.
Finally, the evidence reveals that the applicant had been unemployed since February 2006, her last employer being IBM. This is a disturbing fact because the Second Secretary wrote in the CAIPS notes dated January 29, 2007, that the applicant “IS NOW GAINFULLY EMPLOYED WITH IBM”. This is a factual error.
35) CIC v. C. FC February 20, 2008, IMM-1175-07. The IAD had no valid basis to interfere in the visa officer’s decision.
http://decisions.fct-cf.gc.ca/en/2008/2008fc221/2008fc221.html
This is an application for judicial review pursuant to section 72 IRPA of a decision of the IAD wherein the IAD overturned the refusal of a permanent resident visa for the Respondent’s wife. The visa officer, in Singapore, Malaysia, had found that the Respondent’s marriage was not genuine for the purposes of the IRPA, pursuant to section 4 of the IRPR. The JR is allowed.
The Respondent did not file an application record and he failed to appear at the scheduled date of the hearing, in Toronto on January 17, 2008. The Applicant’s counsel insisted that the hearing proceed.
The panel began its reasons with the following statement “There were a number of unresolved and contradictory issues in the applicant’s evidence which could cast doubt on the genuineness of the relationship and the applicant’s intentions in terms of immigrating to Canada”.
The facts of this case overwhelmingly reveal that the marriage between an 18-year-old Vietnamese woman and a 43-year-old male Canadian citizen was organized and arranged by the woman’s uncles with the obvious intent of helping her to immigrate to Canada. She was unable to communicate with the officer in English and although the respondent seems to have acquired some knowledge of the Vietnamese language, it seems impossible for them to have communicated at a distance as they claim.
The numerous contradictions and inconsistencies between the parties’ versions of the facts and events cast grave doubts upon their credibility and the plausibility of their explanations. The IAD had no valid basis to interfere in the visa officer’s decision, which was clearly based upon the proven facts of this case. Therefore, the IAD decision dated February 28, 2007 is perverse, capricious and cannot be sustained by a reasonable interpretation of the evidence. It is thus patently unreasonable and must be overturned.
34) S. FC February 19, 2008,IMM-1920-07. It would not serve the interest of justice to return the Applicant. The Court provides instructions to the PRRA officer.
http://decisions.fct-cf.gc.ca/en/2008/2008fc210/2008fc210.html
The Applicant is a 22-year-old female citizen of St. Vincent. She arrived in Canada eight years ago under a six-month visitor’s visa but nonetheless has remained in Canada ever since her arrival. A claim was made for refugee status but was apparently abandoned in May 2003. The Applicant applied for a PRRA and was notified by a letter with a decision dated March 30, 2007 that her application had been rejected. That is the decision under review.
It would not serve the interest of justice to return the Applicant to St. Vincent where she has no place to go, and run the risk of exposure to sexual assault when it appears that her sponsored application should soon be reviewed and completed. The matter will be returned for reconsideration by another PRRA officer who should await the result of the sponsored application and then, only if necessary, give further consideration to the matter.
If such further consideration is necessary, the PRRA officer is to have regard to the statement of Shore J. in Streanga: 19 Evidence of improvement and progress by the state is not evidence that the current response amounts to adequate, effective protection. As held in the Federal Court decision of Balogh, a state's willingness to provide protection is not enough: I am of the view that the tribunal erred when it suggested a willingness to address the situation...can be equated to adequate state protection.
33) S. FC February 19, 2008, IMM-3159-07. The behaviour of the presiding member created a reasonable apprehension of bias.
http://decisions.fct-cf.gc.ca/en/2008/2008fc211/2008fc211.html
The applicants, who are citizens of Mexico, claim refugee protection from government authorities in Mexico on the basis of their political opinion and family affiliation for the three accompanying family members. In dismissing their application on June 21, 2007, Mr. R.H. (the Presiding Member) of the RPD rejected their application because their story was not credible. The JR is allowed.
The Court finds that the behaviour of the presiding member created a reasonable apprehension of bias against the principal applicant.
Passages from the three different hearings reflect insensitivity to the applicants who do not speak French. Moreover, the interpreter, Madame C. S., translated from English to Spanish and vice versa. There is no indication in the transcripts that the presiding member repeated in English the instances when French was spoken. This oversight is particularly egregious when one considers the fact that when the Minister’s representative spoke in French, at the March 26, 2007, it was not a simple exchange of introductory remarks as in the two previous instances. Rather, the Minister’s representative spoke to the substance of the Minister’s presence, indicating that they would be remaining to observe the proceedings because the essence of the Minister’s concerns depended on the credibility of the principal applicant. Isn’t that information the applicants and indeed the principal applicant ought to have been privy to? The presiding member neither reiterated in English what was said during this exchange nor had the presence of mind to do so when the refugee protection officer intervened and objected. This is unacceptable. The principal applicant has a right to hear what is been levied against him in order to be fully armed to respond accordingly.
Over and beyond these incidents that disturbed both Counsel and the applicants, Counsel for the applicants provided several pages illustrating errors committed by the presiding member either in regards to comprehension or misinterpretation, wasting time, or lack of preparedness for the hearing.
It is trite law that the rules of natural justice require presiding members at SPD hearings to respect the principles of procedural fairness in spite of the heavy case load and complexity of matters before them.
With that in mind, the scale of the members' tasks must not cause them to lose sight of the fact that the rules of natural justice must be observed and that their conduct during hearings and applications for protection must, at all times, be irreproachable and objective. It goes without saying that the most basic courtesy and politeness are de rigueur. There is no place for intimidation, contempt, and offensive innuendo, nor for harshness or inappropriate language.
Taking also into consideration the fact that both Counsel for the applicants and the RPO did intervene on numerous occasions either to seek clarification or to raise objections to the presiding member’s attitude, I agree that there was a reasonable question regarding the behaviour of the presiding member. It is not because the principal applicant happens to be a lawyer in Mexico that he should be treated with a different measuring stick and not afforded the full ear and care of the presiding member.
32) S. FC February 18, 2008, IMM-1099-07. Citizenship judge breached procedural fairness in re-testing the knowledge of Canada of applicant when she had already successfully passed the written test. http://decisions.fct-cf.gc.ca/en/2008/2008fc205/2008fc205.html
This is an appeal by the applicant pursuant to s. 14(5) of the Citizenship Act and s. 21 of the Federal Courts Act, respecting a decision rendered by a citizenship court judge wherein he concluded that the applicant had not met the knowledge requirement of s. 5(1)(e) of the Act.
The applicant passed the written test. The applicant appeared before the citizenship judge for a hearing of her application for Canadian Citizenship. During the interview she was given an oral test evaluating her knowledge of Canada and the responsibilities and privileges associated with citizenship.
In a decision, the Judge found that the applicant had not fulfilled the knowledge requirement of s. 5(1)(e) of the Act and therefore denied the applicant’s citizenship application.
The content of procedural fairness is eminently variable and depends on the context of the particular decision (See Baker).
Based on the totality of factors, fairness requires that, at minimum, applicants be re-tested solely where there is a valid reason to do so and where adequate notice of the impending second test has been given. In the present case, it is uncontested that the applicant passed the first written knowledge exam. Thus, in the absence of a valid reason indicating why the citizenship judge would need to re-test the applicant, it appears that such an examination was not required. Further, while it is true that the applicant received a notice of interview indicating that some knowledge questions may be asked, the notice was vague and did not specify that re-testing would occur. Thus, in light of the fact that the applicant had successfully passed the written test, she had reasonable grounds to believe that the subject of the interview would be her absences from the country and not a de novo exam.
31) R. FC February 15, 2008, IMM-888-07. The Board reached its conclusion essentially without analysis. The Board applied the wrong test.
http://decisions.fct-cf.gc.ca/en/2008/2008fc192/2008fc192.html
The RPD determined the Applicants not to be Convention refugees or persons otherwise in need of protection equivalent to refugee protection. The JR is allowed.
While at their country house on the 25th of August 2002, the Applicants were required by members of one of the guerrilla groups to attend a meeting. The Applicants refused to attend. Rather, they returned to Bogotá and never again returned to the Guarinosito area and their home there.
In May of 2004, the male Applicant’s half-brother who had, on occasion, gone to check on the Applicants’ country home, was murdered. Shortly, thereafter, the Applicants left Colombia. They arrived in Canada on the 23rd of July 2004, having sojourned in the United States. Their claim for protection in Canada followed. The decision under review was delivered orally at the close of the Applicants’ hearing before the Board on the 13th of February 2007.
In each case, the Board reached its conclusion essentially without analysis. In very brief terms, the Board concluded that the Applicants had not rebutted the presumption in favour of state protection for them if they were required to return to Colombia. The Court relies in its written reasons, on a more substantive issue, that being the failure of the Board to apply the appropriate test for determining whether or not the Applicants should succeed on their claim to Convention refugee status.
The Board’s reasons: In light of the proceeding, I must conclude that the claimants were not subjected to persecution in their country of origin within the meaning of section 96 of the Act.
The foregoing brief paragraph is the sole basis provided for rejection of the Applicants’ Convention refugee claim.
To succeed on a Convention refugee claim, it is not necessary for claimants such as the Applicants to establish that they were subjected to persecution in their country of origin. Rather, it is only necessary that claimants establish that there are “good grounds” or a “reasonable chance”, or even a “serious possibility” that they will be subjected to persecution if returned to the country against which they claim protection. Past persecution is simply not a condition precedent to a successful claim.
Here, the Board simply did not address the issue of the forward-looking nature of the test for Convention refugee status. In the result, the Board erred in law in rejecting the Applicants’ Convention refugee claim.
