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Canadian Citizenship and Immigration Case Law Update

Canadian Citizenship

CITIZENSHIP — Appeal — Foreign national applied for citizenship in June 2010 — On October 22, 2014, official sent letter to foreign national requesting additional information — Foreign national responded within time limits imposed — On April 13, 2015, official purportedly sent another letter to foreign national requesting more complete information and warning that failure to respond on time would result in citizenship application being deemed abandoned — On May 29, 2015, foreign national having not responded, application was deemed abandoned and file closed — Letter to that effect was sent to foreign national — Foreign national responded that she had not received April 13, 2015 letter and requested that file be re-opened — Official refused to re-open and confirmed deemed abandonment on ground abandoned applications are only reactivated if there is administrative error on part of Citizenship officials — Foreign national applied for judicial review — Application granted; decision to treat citizenship application as abandoned and decision to refuse to re-open application quashed — Deemed abandonment decision was based on assumption that April 13, 2015 letter was sent, however Minister could not prove that fact — Letter from official had been placed in outbox tray however where letter went from there was not established — There was no notation in GCMS system, as was usual practice, that letter was sent — Foreign national had pattern of responding on time to letters from official and evidence was that letters that were actually sent were received at foreign national’s address — Therefore, court concluded that April 13, 2015 letter was not sent and foreign national had reasonable excuse pursuant to s. 13.2 of Citizenship Act (Can.) for her failure to respond to Minister — In addition to common law requirement for notice, which was not given, Minister did not have statutory precondition to treat application as abandoned — Given court’s finding that letter was not sent as it should have been, this was very type of administrative error that official referred to — Moreover if only basis upon which case would be re-opened was if department deemed themselves to be in error, this took no account of other factors such as Acts of God, unforeseen circumstances and matters beyond anyone’s control — Accordingly, this was self-serving and ludicrous basis from which to reject re-opening request and was arbitrary and unreasonable. Learn more about Mike G Law and legal liability in such cases. p style=”text-align: left;”>Lim v. Canada (Minister of Citizenship and Immigration) (February 17, 2016, Michael L. Phelan J., Federal Court) 263 A.C.W.S. (3d) 588


CITIZENSHIP — Appeal — Foreign national was 79-year-old citizen of Islamic Republic of Iran who arrived in Canada as visitor in 2005 and became permanent resident on April 8, 2007 — Foreign national applied for Canadian citizenship on June 30, 2011 — Foreign national declared in application that she had travelled to Iran on two occasions and her declared absence was for total of 68 days, which implied that she was physically present in Canada for total of 1,392 days during relevant period — On residence questionnaire foreign national declared the she had travelled to Iran on four occasions during relevant period and was absent from Canada for 125 days — Foreign national had lost her Iranian passport in 2010 and as result her presence in Canada between 2007 and 2011 could not be verified — Foreign national had undeclared absence from Canada in 2011 and she had failed to provide any entry or exit records from Iran as requested — Judge noted that loss of passport made it impossible to confirm, in objective fashion, whether foreign national was physically present in Canada for requisite number of days during relevant period — Judge therefore applied more flexible test for determining residence found in Re Koo, finding quality of her ties to Canada was substantive because she was dependent on her son who lived here and she had no close ties to people in Iran — Citizenship Judge applied Koo test and found that foreign national had met residency requirement under s. 5(1)(c) of Citizenship Act (Can.) — Minister applied for judicial review — Application allowed; matter remitted to different citizenship judge for re-determination — Judge made several factual findings that were unsupported by evidence, and failed to address numerous inconsistencies and inadequacies in foreign national’s evidence — Reasons provided by judge do not permit court or Minister to understand why judge approved application for citizenship — Insufficiency of reasons is not stand-alone basis for allowing application for judicial review, however, reasons take on added significance in citizenship context because they are statutorily required by ss. 14(2) and (3) of Act, and because Minister is required to grant citizenship if judge determines that applicant has met residency requirement — Based on insufficiency of judge’s reasons, and considering cumulative effect of several unreasonable findings of fact, application for judicial review must be allowed

Canada (Minister of Citizenship and Immigration) v. Sharma (January 11, 2016, Simon Fothergill J., Federal Court) 263 A.C.W.S. (3d) 589

Canadian Immigration

IMMIGRATION — Exclusion and expulsion — Removal orders — Appellant was investigated on grounds of criminality and involvement with organized crime — Application for judicial review was dismissed, but judge certified question as to whether Immigration Commission had jurisdiction to grant stay of proceedings under s. (24)1 of Canadian Charter of Rights and Freedoms as part of investigation following referral of report prepared under s. 44(1) of Immigration and Refugee Protection Act (Can.) — Appellant brought appeal — Appeal dismissed — Question should not have been certified and question was prerequisite to right of appeal — Question must be raised and decided at first instance and have an impact on the outcome of dispute — Appellant never sought to establish how he was prejudiced by passage of time or raised it before Immigration Division or Federal Court — Issue of delay in his interview not raised before report under s. 44 of Act and decision taken to refer to immigration Division for investigation not challenged by way of judicial reviewCanadian Immigration

Torre c. Canada (Ministre de la Citoyenneté et de l’Immigration) (February 9, 2016, Noël C.J., Scott J.A., and Yves de Montigny J.A., Federal Court of Appeal) 263 A.C.W.S. (3d) 729


IMMIGRATION — Inadmissible and removable classes — General — Foreign nationals were citizens of Albania who prior to their arrival in Canada had resided in Italy as permanent residents, status they held since 2001 — Foreign nationals claimed protection from Albanian gang — While gang was not based in Italy, foreign nationals contended that its reach extended there as result of liberalization of visas for Albanians to enter European Union’s Schengen Area — Board found foreign nationals credible with respect to incidents that took place in Albania — However, Board found foreign nationals excluded from protection under art. 1E of Refugee Convention because Board determined that foreign nationals possessed valid permesso di soggiorno illimitata cards – equivalent of European Commission Residence Permit for Long-term Residents – which conferred all rights and social benefits of permanent residence in Italy — Board found the Applicants to be excluded under art. 1E of Convention — Foreign nationals did not submit any documentary evidence to suggest this status had been revoked — Foreign nationals applied for judicial review of Board’s decision — Application for judicial review dismissed — Under their Italian status, foreign nationals held right to work without restrictions, to study, to fully access social services, and to return to country — Possible status revocation was discretionary, not automatic, and nothing suggested such revocation occurred — There was neither evidence to suggest that foreign nationals would face deportation nor were conditions attached to foreign nationals’ permits (to avoid committing serious crime and to avoid leaving European Union for more than one year) due to any inherent vulnerability of their status — It remained within control of foreign nationals to abide by conditions of their status — Test is not whether person has exactly same rights as citizen of country, but whether their status is substantially similar to that of national — Here, foreign nationals had status substantially similar to that of Italian nationals and it was therefore open for Board to arrive at its conclusion — It was equally incumbent on foreign nationals to bring evidence that they could not renew their status in Italy, and/or had lost their right of return and they had brought neither — Board’s decision was reasonable — Question certified: Does art. 1E of Refugee Convention, as incorporated into Immigration and Refugee Protection Act (Can.) apply if claimant’s third-country residency status (including right to return) is subject to revocation at discretion of that country’s authorities?

Protaj v. Canada (Minister of Citizenship and Immigration) (February 8, 2016, Alan S. Diner J., Federal Court) 263 A.C.W.S. (3d) 730


IMMIGRATION — Judicial review — Federal Court — Applicant was citizen of Cambodia — Applicant claimed to have come to Canada on visa after being recruited to work in restaurant and then been forced to work without pay for two-and-one-half years — Applicant claimed to have escaped restaurant with help of client after getting his passport back — Application for refugee status made after visa expired — Application rejected and appeal to Refugee Appeal Division (RAD) dismissed — Applicant sought judicial review — Application dismissed — Applicant did not identify Cambodian chef V as his persecutor in his asylum application — RAD found V could not be regarded as being involved in human trafficking — Contradictions as to how applicant came to restaurant as he said V introduced him but on visa application said it was through cooking school — All of record evidence considered by RAD and amply supported conclusions of RAD on lack of credibility — Fact that evidence not addressed specifically in decision does not make it unreasonable when there are sufficient grounds to assess court’s reasoning

Sary c. Canada (Ministre de la Citoyenneté et de l’Immigration) (February 10, 2016, Denis Gascon J., Federal Court) 263 A.C.W.S. (3d) 731


IMMIGRATION — Judicial review — General — Identity — Burden of proof — Applicants were citizens of India and moved to Canada for asylum — Applicants were granted permanent residency on humanitarian grounds — Immigration officer refused to grant permanent resident status on grounds that they failed to provide documents required to prove identity under s. 178 of Immigration and Refugee Protection Regulations (Can.) — Applicant brought application for judicial review — Application granted — Immigration officer incorrectly applied standard of proof applicable in criminal matters, which was proof beyond reasonable doubt, in its assessment of identity — It was unclear if, guided by burden of proof on balance of probabilities, officer would have still concluded that new birth certificate was sufficient to prove identity, or its assessment on missing passport would have been different.
More info sourced at: https://www.application-filing-service.com/socialsecuritycard/form-ss-5/

Singh c. Canada (Ministre de la Citoyenneté et de l’Immigration) (February 9, 2016, Denis Gascon J., Federal Court) 263 A.C.W.S. (3d) 732


IMMIGRATION — Judicial review — General — Identity — Burden of proof — Applicants were citizens of India and moved to Canada for asylum — Applicants were granted permanent residency on humanitarian grounds — Original birth certificate submitted by applicants was altered and did not match deed issued on birth — Immigration officer refused to grant permanent resident status on grounds that they failed to provide documents required to prove identity under s. 178 of Immigration and Refugee Protection Regulations (Can.) — Applicant brought application for judicial review — Application granted — Immigration officer incorrectly applied standard of proof applicable in criminal matters, which was proof beyond reasonable doubt, in its assessment of identity — It was clear that this was not burden of proof that applied to assess authenticity and probative value of identity documents as part of application for permanent residence

Kaur c. Canada (Ministre de la Citoyenneté et de l’Immigration) (February 9, 2016, Denis Gascon J., Federal Court) 263 A.C.W.S. (3d) 733


IMMIGRATION — Refugee status — Procedure — Intervention — Motion for order granting leave to intervene in appeal from judgment of Federal Court allowing Minister’s application for judicial review of Refugee Protection Division decision — Moving party submitted he would assist court on standard of review, how review should be conducted, why RPD decision was reasonable, mootness, and consequences of Federal Court decision — Motion dismissed — Moving party failed to demonstrate he would assist in determination of factual or legal issues in proceeding — Moving party’s position was essentially duplicative of appellant’s, so added nothing — Appellant was represented by experience counsel and had prepared comprehensive memorandum, so there was no need for added assistance

Zaric v. Canada (Minister of Public Safety and Emergency Preparedness) (February 4, 2016, David Stratas J.A., Federal Court of Appeal) 263 A.C.W.S. (3d) 734


IMMIGRATION — Refugee status — Procedure — Mootness — Refugee claimants arrived in Canada October 30, 2012 and claimed refugee status on November 1, 2012 — Decision was made denying application January 6, 2015 and claimants applied for judicial review — Claimants were removed from Canada on March 16, 2015 — By letter dated September 14, 2015, Minister advised court that claimants had been removed from Canada — Minister contended application for judicial review was now moot since claimants were back in Serbia — Minister sought direction from court as to whether further submissions from parties regarding issue of mootness, including possible certification of question, would be appropriate — Direction was issued by court on September 15, 2015, and parties were invited to provide additional written representations on issue of mootness — Application for judicial review was not moot — Rights conferred on claimants by Immigration and Refugee Protection Act (Can.) were not lost simply because claimants were involuntarily removed from Canada following removal order executed by Minister in accordance with its statutory obligations under Act — It was important that claimants had been successful in their application for leave to seek judicial review — If their judicial review application could be defeated simply by reason of enforcement of removal order it would render their rights illusory — Fact that claimants did not seek stay of their removal order was of no significance in this case and should not be determinative of this court’s jurisdiction over matter — Claimants had made efforts to continue their litigation by appearing at hearing through counsel notwithstanding their removal from Canada in March 2015 — Even if matter were moot, court exercised discretion to decide matter on its merits to preserve judicial resources — Both parties had made submissions and application for judicial review had already been heard by Court, therefore, judicial economy favoured final decision being rendered in matter — Question certified: — Is application for judicial review of decision of Refugee Protection Division moot where individual who is subject of decision has involuntarily returned to his or her country of nationality, and, if yes, should court normally refuse to exercise its discretion to hear it?

Mrda v. Canada (Minister of Citizenship and Immigration) (January 15, 2016, Sylvie E. Roussel J., Federal Court) 263 A.C.W.S. (3d) 735


IMMIGRATION — Refugee status — Procedure — Procedural fairness — Refugee claimant was citizen of Colombia who alleged fear of persecution by Revolutionary Armed Forces of Colombia – People’s Army (FARC) — Claimant was pharmacist and alleged that FARC had demanded large quantities of drugs from him — Claimant alleged that he had moved his pharmacy twice however FARC continued to pursue him and had shot and killed his cousin — Refugee Protection Division (RPD) found claimant lacked credibility and denied claim — Claimant appealed to Refugee Appeal Division (RAD), which upheld RPD’s credibility findings and dismissed appeal — Claimant applied for judicial review, contending that RAD erred in upholding RPD’s credibility findings and breached procedural fairness by making new negative credibility findings against claimant without having provided claimant opportunity to address RPD’s concerns — Application granted; file sent to RAD for assessment anew by differently constituted panel — Given numerous and important discrepancies raised by RPD in its decision, it was reasonable for RAD to find that claimant lacked credibility on core elements of his narrative — While RAD’s decision may still be reasonable where it has made independent findings of credibility against applicant, without putting it before applicant and giving him opportunity to make submissions, in this case exception did not apply — Here, RAD independently held that police report did not appear to conform to normally followed process, as described in documentary evidence — RAD was therefore raising doubts about genuineness of police report, issue which was not discussed by RPD and neither put forth to claimant — Accordingly, breach of procedural fairness occurred

Valdeblanquez Ortiz v. Canada (Minister of Citizenship and Immigration) (February 10, 2016, Michel M.J. Shore J., Federal Court) 263 A.C.W.S. (3d) 736


IMMIGRATION — Refugee status — Procedure — Refugee claimant alleged that he was born in Somalia to Ethiopian parents who held Ethiopian citizenship — Claimant claimed Somali ethnicity however his citizenship was open issue — Risk alleged was that claimant would be considered spy and target for Al Shabaab — Claimant alleged that he was detained and arrested on account of his ethnicity and because he was suspected of being associated with rebel group — On his way to Canada claimant had been detained in United States — To establish identity, claimant submitted to Refugee Protection Division (RPD) same documents submitted to U.S. authorities — U.S. authorities were able, on strength of those documents, to establish claimant’s identity — RPD concluded that claimant failed to establish identity and made “no credible basis” finding, effect of which was to preclude claimant from appeal to Refugee Appeal Division (RAD) — Claimant applied for judicial review — Application granted; operation of decision suspended to allow claimant to commence appeal to RAD within 30 days of this decision — In event that no appeal is filed, suspension shall expire — In event that appeal is filed, application for judicial review will be dismissed as moot without prejudice to any rights to seek judicial review of RAD’s decision — RPD was not required to adopt U.S.’s finding on identity — However, unless it found that U.S. decision was so devoid of merit that it was incapable of sustaining even its own finding, U.S. decision was t least some credible basis for finding in favour of claimant — It was unreasonable to conclude that there was no credible basis for claim — Claimant had been wrongfully deprived of right of appeal by unreasonable no credible basis finding — In order to preserve claimant’s appeal rights, operation of decision was suspended to allow claimant to commence appeal to RAD within 30 days of this decision

Mahdi v. Canada (Minister of Citizenship and Immigration) (February 17, 2016, Michael L. Phelan J., Federal Court) 263 A.C.W.S. (3d) 737


IMMIGRATION — Refugee status — Requirements — Identity — Post hearing documents — Claimant alleged that he was citizen of Turkey of Kurdish ethnicity of Alevi faith, and that he was active in pro-Kurdish parties, as result of which he alleged he was mistreated and detained by Turkish police — Claimant came to Canada in 2013 and made refugee claim — Minister intervened on basis of serious concerns about claimant’s identity — Refuge Protection Division (RPD) denied application to submit additional post-hearing identity documents and therefore did not consider that evidence in making its decision — RPD noted that post-hearing documents were relevant but gave them little probative value, as they had not been subject to forensic examination and no reasonable explanation was provided as to why they were not produced earlier — Post-hearing documents included card from Turkish military with hand-written personal information, land registry document, insurance certificate, birth certificate, family registration document, social insurance record card, “international marriage certificate”, military discharge certificate, and some union receipts — RPD rejected refugee claim, concluding that claimant had not established his personal or national identity — Claimant appealed to Refugee Appeal Division (RAD) — RAD concluded that post hearing documents had little probative value and it was not necessary to consider whether claimant provided reasonable explanation for their late submission — RAD found that RPD did not err in denying application for submission of post-hearing documents and dismissed appeal — Claimant applied for judicial review — Application granted; matter referred back to Refugee Appeal Division for re-determination by different panel member — Claimant identified seven documents or categories of documents, introduced by claimant in support of his identity in his RPD hearing that were not referred to in RAD’s decision — Failure to conduct independent assessment of authenticity and probative value of each of these documents represented reviewable error — As with documents that were submitted at hearing before RPD, RAD’s analysis of probative value of post-hearing documents considered some, but not all, of those documents — In absence of analysis by RAD of probative value of all these documents, other than in reliance on credibility difficulties associated with other documents, documents probative value was not properly considered — RAD erred in its review of RPD’s decision not to permit submission of post-hearing evidence — It was not possible to know whether assessment of combination of these documents could have changed RAD’s decision — Such an assessment was required

Aytac v. Canada (Minister of Citizenship and Immigration) (February 15, 2016, Richard F. Southcott J., Federal Court) 263 A.C.W.S. (3d) 738


IMMIGRATION — Refugee status — Requirements — Refugee claimant was 22-year-old Tamil male from northern Sri Lanka who alleged fear of government forces including police, army and paramilitary groups such as Eelam People’s Democratic Party if returned to Sri Lanka — Claimant’s brother had left Sri Lanka and made successful claim for refugee protection in Canada in 2009 — In 2014 army went to claimant’s home demanding that he join army and claimant was subsequently forcibly detained, physically abused and accused of being LTTE and/or Tamil National Alliance supporter — After his release, claimant fled Sri Lanka with intention of joining his brother in Canada — After leaving Sri Lanka claimant travelled through three countries that were signatories to Convention – Brazil, Guatemala and United States – prior to arrival in Canada and ultimately claimed asylum in United States — US authorities agreed to receive his claim, however claimant decided to come to Canada since he had no family in United States — When asked to explain why he abandoned his US claim, given that his intention was to get to country where he could claim protection, claimant replied that that Canada offered fair treatment from which members of his community had benefited — Refugee Protection Division (RPD) concluded that claimant’s explanation was not satisfactory, given risks he alleged, and considered his credibility undermined as result — RPD denied claim — Claimant applied for judicial review — Application allowed; matter referred to RPD for re-determination by different panel member — Claimant was entitled to pursue his claim in Canada as result of Safe Third County Agreement — Claimant’s evidence was that he wished to pursue his claim in Canada where his brother had been afforded Convention refugee status, and he asserted that claim two weeks after being released on bond by US authorities — There was no evidence that successful credible fear interview in United States afforded him status in any way superior to that of claimant in Canada — There was no reasonable basis for RPD’s finding that claimant’s abandonment of his US claim undermined his credibility — Court could not know if RPD would have reached same conclusion to reject credibility of claimant’s claim if it had not erred in its assessment of claimant’s decision to abandon his US claim — Accordingly, application must be allowed

Selvaratnam v. Canada (Minister of Citizenship and Immigration) (February 15, 2016, Richard F. Southcott J., Federal Court) 263 A.C.W.S. (3d) 739


IMMIGRATION — Refugee status — Requirements — Refugee claimant was single Syrian national of Kurdish ethnicity — Claimant lived in Greece from 1998 to 2013, and was issued Permanent Residence Permit by Greece which was of “Permanent / Indefinite validity” good for 10 years at least — Permanent Residence Permit gave claimant right to work freely, and right to leave and return to Greece — Claimant had access to health services similar to those for Greek citizens but contended that he did not have access to some benefits reserved for European Union or Greek citizens — In 2014 claimant came to Canada and claimed protection based on Kurdish ethnicity and perceived political opinion in relation to Syria — Claimant had arrived in Canada falsely representing himself as holder of Greek passport, whereas in fact he bought passport from Greek citizen — Refugee Protection Division rejected claim because of status he had in Greece pursuant to exclusion from refugee protection set out in art. 1E of Convention — Claimant appealed to Refugee Appeal Division (RAD) which confirmed claimant was excluded from refugee protection under art. 1E — Claimant applied for judicial review — Application dismissed — Once there is prima facie evidence that claimant has status in another country, onus shifts to her or him to establish that status has been lost — Because it is low threshold determination, Minister’s onus is met by virtue of fact that claimant had Greek Permanent Resident Permit which prima facie established application of exclusion in art. 1E — RAD reasonably rejected claimant’s evidence regarding absence of study rights, on basis that he had not discharged onus on him to do so — RAD reasonably concluded that claimant, while not having access to every program or subsidy offered by Greek government, did have access to health care rights similar to nationals, along with social security rights same as Greek nationals — There was no reviewable error in connection with finding that claimant had status in Greece “substantially similar” to that of nationals

Wasel v. Canada (Minister of Citizenship and Immigration) (December 22, 2015, Henry S. Brown J., Federal Court) 263 A.C.W.S. (3d) 740


IMMIGRATION — Refugee status — Requirements — Refugee claimants, mother and three children, were citizens of Peru who alleged fear of mother’s abusive and violent common law husband — Refugee Protection Division (RPD) accepted that principal claimant and her spouse had been in abusive relationship until 2007 — However, RPD found that principal claimant wished to join her relatives in Canada and instead of dealing with matter under immigration laws, decided to engage refugee system by manipulating basic set of facts, being that domestic violence was significant problem in Peru — RPD’s conclusion was that principal claimant concocted story that she was continually abused by her spouse until she left Peru on October 25, 2012 and that police did not provide adequate protection — Claimant’s father had sent claimant invitation letter to apply for visa and money to purchase plane tickets in June 2012, and claimant alleged that father only became aware of abuse at this time — RPD denied claim — Claimants applied for judicial review — Application granted; matter referred to Refugee Protection Division for re-determination by different panel member — RPD accepted that principal claimant had been in abusive relationship until 2007 but then went on to conclude that abuse stopped at this stage and that allegations of post-2007 abuse and inadequate state protection were concocted in order to facilitate her wish to join her relatives in Canada — However, there was no evidence before RPD that abuse had ended in 2007 — Rather, RPD’s conclusion to that effect was based on finding that claimant’s father would have found out earlier than 2011 or 2012 if abuse had continued, absence of alleged incidents of abuse between 2007 and 2011, and concerns RPD had with police reports related to 2011 and 2012 incidents — RPD’s conclusion that if claimants had been victims of abuse for 17 years as they alleged, father would have found out and taken steps to assist much earlier represented impermissible plausibility finding — RPD referred to “flurry of activities with alleged domestic violence” after claimants obtained their passports in July 2011 and stated that, prior to that, last incident of domestic violence was on May 2, 2007 — However, RPD appeared to have overlooked evidence in principal claimant’s personal information form narrative describing incidents of abuse in 2009 and 2010 — Having found reviewable errors in RPD’s credibility analysis that impacted its findings with respect to subjective fear and state protection, RPD’s decision must be set aside as unreasonable

Cantos Rocha v. Canada (Minister of Citizenship and Immigration) (February 11, 2016, Richard F. Southcott J., Federal Court) 263 A.C.W.S. (3d) 741


IMMIGRATION — Refugee status — Requirements — Well founded fear of persecution — Availability of state protection — Refugee claimant was born in Croatia but moved to Serbia when she was 11 years old — Claimant was humiliated and discriminated against in school due to her Croatian nationality and was harassed in school by teachers and students because she spoke Croatian — In 2006 claimant returned to Serbia where she found employment but was subjected to insults and humiliation because of how she spoke — Claimant began university studies in Serbia in 2010 and was harassed by students and professors, who refused to let her take her exams or to mark them, ensuring that she was unable to pass her — courses — Claimant complained to dean who refused to follow up on her complaint — Refugee Protection Division (RPD) found that incidents of discrimination suffered by claimant were of such serious character that they were persecutory in nature however RPD determined that claimant had not rebutted presumption of state protection — RPD outlined positive efforts that Serbia had undertaken to address discrimination, including its legal framework to protect minorities, its constitutional prohibition on discrimination and appeal mechanism to Constitutional Court that was available for cases involving human rights violations — RPD also stated that while police in Serbia were not always effective, there were effective mechanisms to investigate police conduct and to punish police corruption and impunity — RPD denied claim and claimant applied for judicial review — Application granted; decision set aside and matter remitted for redetermination by different panel member — Assessment of state protection should have been done not only in context of country conditions in general but also with respect to steps taken by claimant to seek protection of state and her interaction with authorities in circumstances of this case — RPD’s failure to consider all relevant factors constituted reviewable error which required that decision of RPD be set aside

Mrda v. Canada (Minister of Citizenship and Immigration) (January 15, 2016, Sylvie E. Roussel J., Federal Court) 263 A.C.W.S. (3d) 735


IMMIGRATION — Refugee status — Requirements — Well founded fear of persecution — Availability of state protection — Refugee claimants were white citizens of South Africa who alleged well-founded fear of persecution on basis of their race — Claimants had moved from Cape Town to small rural community — Claimants alleged that situation was worse there, particularly with regard to violence by black criminals and extremists towards white landowners — Claimants alleged that their dogs were poisoned by black locals, that they had been threatened, and that they felt local police were corrupt and unable to protect them, so they sold their property and traveled to Canada — Member found that claimants were Convention refugees pursuant to s. 96 of Immigration and Refugee Protection Act (Can.) — Member concluded that claimants had established nexus to Convention ground – persecution on basis of race, adding that they may have faced additional persecution because they were landowners and thus perceived as wealthy — Member also found claimants and their narrative to be credible — Member noted that claimants had never actually tested adequacy of state protection because they believed that local law enforcement were corrupt — Documentary evidence indicated that South Africa was constitutional multi-party Parliamentary democracy, ranks highly on global comparison in terms of civil liberties and political rights — Member concluded that claimants had not rebutted presumption that adequate state protection existed in South Africa however he went on to find that it was not reasonable for claimants to relocate to Capetown based on claimants’ subjective fear of living there — Member granted claim — Minister applied for judicial review — Application granted — Member found that claimants had not rebutted presumption that adequate state protection existed in South Africa, repeating this conclusion three times — These were clear, unambiguous findings that state protection existed, and to carry on with further analysis in spite of these express statements constituted error of law

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Canada (Minister of Citizenship and Immigration) v. Foster (February 4, 2016, Alan S. Diner J., Federal Court) 263 A.C.W.S. (3d) 742


IMMIGRATION — Refugee status — Requirements — Well founded fear of persecution — Credibility — Refugee claimants were principal claimant mother and her children, all citizens of Afghanistan — Principal claimant’s family had fled to Pakistan in 2002 so claimant could avoid forced arranged marriage with N, who had ties to Taliban — Claimant married man in Pakistan and after Taliban was overthrown claimant and husband returned to Afghanistan — Claimant alleged that N learned of her return and in 2012 invaded claimant’s home with armed men, wounding mother in law and informing her they had her husband in custody and he would be killed unless she agreed to go with T — Claimant alleged that police refused to help her — Claimant did not hear from husband and she and children left Afghanistan with aid of smuggler — Claimant came to Canada after spending time in United States and made refugee claim — Claimant was interviewed for one hour by officer with assistance of interpreter — During interview, claimant’s children (then aged 9, 7, 6 and 4 years) played with toys nearby and officer noted that they spoke exceptional English — When claimant was questioned about this, she stated they went to private school in Afghanistan and learned English there, however, she could not name school — Board found that there were no school documents and no documents to show where children were born — There were no police reports dealing with N’s invasions of claimant’s home, and no medical report following alleged shooting of claimant’s mother-in-law — As result of children’s exceptional English, Board concluded that they had been raised in English language jurisdiction — Board also found that claimant answered questions in evasive manner — Board concluded that inconsistencies between claim for refugee protection form and her Personal Information Form about whom she feared and between officer’s notes and her testimony about how long she stayed in U.S. and her failure to claim in U.S., also diminished her credibility — Board denied claim — Refugee claimant applied for judicial review — Application dismissed — Failure to provide sensible explanation for children’s exceptional English was at foundation of Board’s concern about claimant’s credibility — Once this credibility concern developed, it was reasonable for Board to expect some documentary corroboration of claim — Applicant received continuous, precise and competent interpretation and interpretation errors were not source of Board’s conclusion that claimant was evasive in answering its questions — As claimant had provided no evidence of her circumstances on return to Afghanistan Board was not required to assess her risk of persecution as woman in Afghanistan

Faizi v. Canada (Minister of Citizenship and Immigration) (February 5, 2016, Sandra J. Simpson J., Federal Court) 263 A.C.W.S. (3d) 743


IMMIGRATION — Refugee status — Requirements — Well founded fear of persecution — Refugee claimant was citizen of Jamaica who alleged fear of former boyfriend — Claimant had ended relationship in 2009 — Claimant alleged that in February 2014 ex boyfriend assaulted her and threatened to throw acid on her face — Claimant came to Canada on farm worker program and while in Canada in September 2014 learned that ex boyfriend had threatened her son in Jamaica — Claimant made refugee claim — Refugee Protection Division (RPD) found that claimant omitted significant information from her Basis of Claim form (BOC) including punch to face during incident in February 2014 — RPD rejected claim based on negative credibility findings and demonstrated lack of subjective fear based on re-availment to Jamaica and delay in filling refugee claim — Claimant appealed to Refugee Appeal Division (RAD) which confirmed decision of RPD — Claimant applied for judicial review — Application allowed — Claimant’s subsequent testimony that she was punched in face by her ex-boyfriend constituted elaborative detail that did not allow for adverse credibility finding — RAD did not refer to content of BOC so as to consider whether omission was sort that could permit adverse inference and RAD made unreasonable finding regarding this omission — RAD drew adverse inference, found that claimant lacked subjective fear, and concluded her allegations of fear in Jamaica to be further undermined, based on her repeated returns to Jamaica between 2009 and 2014 following her Canadian work terms and cumulative effect of delay in asserting claim upon returning to Canada in 2014 — However, while RAD was permitted to draw adverse inference based on such re-availments or delays, in doing so it must take into account any explanation offered by claimant — Claimant’s explanation for returning to Jamaica between 2009 and 2014 was that she did not see her ex-boyfriend when she returned home and therefore thought that he had accepted fact that relationship was over — Fear claimant developed following initial incident in 2009 did not persist through 2009-2014 period — With respect to her delay in asserting her claim in 2014, claimant’s explanation was that it was only after her son was threatened in September of 2014 that she sought protection — RAD’s decision contained no analysis of claimant’s explanation for returning to Jamaica between 2009 and 2014 — RAD was required to consider this explanation in reaching its decision on re-availment, and its failure to do so made that portion of decision unreasonable

Williams v. Canada (Minister of Citizenship and Immigration) (February 10, 2016, Richard F. Southcott J., Federal Court) 263 A.C.W.S. (3d) 744


 
IMMIGRATION — Selection and admission — Permanent residence applications — Foreign national was citizen of Afghanistan who with her two sons applied for permanent residence in Canada as members of Convention refugee class or as members of country of asylum class under s. 96 of Immigration and Refugee Protection Act (Can.) and ss. 139 and 147 of Immigration and Refugee Protection Regulations (Can.) — Foreign nationals claimed that they fled to Pakistan from Afghanistan as result of fighting near their home in 1993 and had resided in Pakistan ever since — Officer considered foreign nationals to be under legal obligation to prove they were residents of Pakistan as precondition of making claims to be Convention refugees or country of asylum class refugees — Officer found foreign national and two sons ineligible for permanent residence in Canada as members of Convention refugee class or as members of country of asylum class under s. 96 of Act and ss. 139 and 147 of Regulations — Foreign national applied for judicial review — Application granted; decision below set aside and matter remitted to different visa officer for re-determination — There is no requirement in s. 96, nor in Regulations 147 or 139, that claimant must “reside” outside of country of their nationality or habitual residence (habitual residence only applies to stateless people, which is irrelevant in this case) — Only country connection requirement for Convention refugee class claimant is that he or she “is outside” his or her country of nationality: see s. 96(a) and (b) — Likewise, only such requirement for country of asylum class claimant is that they “are outside” their countries of nationality: see s. 147(a) and (b), and s. 139(1) of Regulations which require that claimant establish he or she “is outside” all of their countries of nationality and Canada — In other words, it is enough that such claimants be outside their country of nationality — Officers cause and effect analysis was unreasonable and to extent decision depended on this finding and underlying but nonexistent residency requirement, it must be set aside — Officers also applied incorrect legal test

Ameni v. Canada (Minister of Citizenship and Immigration) (February 9, 2016, Henry S. Brown J., Federal Court) 263 A.C.W.S. (3d) 745


IMMIGRATION — Selection and admission — Sponsorship — Sponsor was 48-year-old male permanent resident of Canada, who applied to sponsor wife for permanent residence — Visa Officer found that wife was not member of family class pursuant to s. 117(1)(a) of Immigration and Refugee Protection Act (Can.) since she did not convince visa officer that prior to entering marriage, there was logical progression in relationship or that genuine relationship existed — Visa officer found that despite fact that couple were married for six years, wife did not display in-depth knowledge of her husband — Sponsor appealed to Immigration Appeal Division which did not find sponsor or his wife to be credible witnesses, finding their answers to questions during interview with IAD vague, evasive, and on largely manufactured to suit typical questions associated with appeal process — IAD upheld officer’s decision — Sponsor applied for judicial review — Application granted; decision set aside and matter referred back to Immigration Appeal Division for determination by different panel — IAD did not provide any specific examples of vague and evasive testimony from hearing — IAD failed to address key facts and issues in its decision such as sponsor financially supported his wife in China, that he visited her at least once per year for few weeks and on these occasions took care of her first son, that couple remained married despite wife’s infidelity, that they conceived child together and intended on raising their child and wife’s child born outside of marriage together despite negative sponsorship application — Wife even expressed desire to have another child with sponsor once she immigrated to Canada — In assessing credibility of sponsor and wife, IAD ignored substantial evidence that contradicted its finding that marriage was not genuine or was entered into for immigration purposes — Board’s finding that couple’s plan for life in Canada was unclear was not reasonable as plan demonstrated clear and realistic plan for living together in Canada — IAD’s failure to address this and other relevant evidence rendered IAD’s decision unreasonable

Chen v. Canada (Minister of Citizenship and Immigration) (January 20, 2016, René LeBlanc J., Federal Court) 263 A.C.W.S. (3d) 746

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