Canada Immigration Case-law Canada v Molnar, IMMIGRATION — Exclusion and expulsion — Removal order by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

IMMIGRATION — Exclusion and expulsion — Removal orders
Judgement for this Case: Click here!

Right of refugee claimant to judicial review after removal — Refugee claimants were Roma citizens of Hungary who had made unsuccessful refugee claim — Claimants’ motion for stay of removal was dismissed and claimants departed Canada and returned to Hungary in November 2014 — Claimants had brought application for judicial review of denial of refugee claim — Minister contended that s. 96 of Immigration and Refugee Protection Act (Can.), required that refugee claimants be outside their country of nationality, and s. 97 of Act required that claimants be physically present in Canada, and therefore application for judicial review should be dismissed on ground that it had become moot — Motion to dismiss on ground of mootness denied; application to be set down for hearing on its merits — Parliament did not intend to preclude court and board from hearing claim for refugee protection after person had been removed from Canada pursuant to s. 48(2) of Act — In absence of express statutory language rights conferred on refugee claimants by Act were not rendered nugatory by performance of Minister’s duty to execute removal order as soon as reasonably practicable — Even if matter had become moot, this was appropriate case in which court should exercise its discretion to deal with matter on its merits — As interlocutory judgment concerned jurisdiction of Refugee Protection Division to reconsider decision after applicant for refugee protection has been removed from Canada was separate, divisible, judicial act, question was certified: Is application for judicial review of decision of Refugee Protection Division moot where individual who was 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?

 

Canada Immigration Case-law Canada v Purvis, Qualifications — General by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

CITIZENSHIP — Qualifications — General

Judgement for this Case: Click here!

Quantitative and qualitative tests — Foreign national was citizen of United States who married Canadian citizen and became permanent resident in 1989 — Citizenship judge approved application on ground foreign national met physical presence test — Citizenship judge then went on to consider whether foreign national was “koo-able” — Minister brought appeal, contending that citizenship judge erred by blending quantitative and qualitative tests — Appeal dismissed — Citizenship judge approved foreign national’s application for citizenship on basis of quantitative test, although he complicated matters unnecessarily by invoking Koo test — Decision would certainly have been clearer without this complication, however Minister conceded that citizenship judge did not render decision on Koo factors — Unfortunate as citizenship judge’s ruminations on Koo may be, court was not satisfied that those considerations blended into his quantitative analysis and there was no reviewable error

Canada Immigration Case-law Canada v Purvis, CITIZENSHIP — Appeal by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

CITIZENSHIP — Appeal

Judgement for this Case: Click here!

Residence — Evidence — Foreign national was citizen of United States who married Canadian citizen and became Canadian permanent resident in 1989 — Foreign national had established chiropractic clinic in United States in 1996, and family moved there however family returned to Canada in 2005 and foreign national intended to sell clinic — Foreign national commuted to clinic part-time to keep business operating while seeking buyer — Foreign national applied for citizenship February 4, 2012 — In response to request from CIC for more details of absences foreign national filed ICES Traveller History report from Border Services Agency which showed her recorded border crossings from August 1, 2000 to April 15, 2013, however not all land border crossings were recorded in report, which was not consistent with foreign national’s estimates — Citizenship judge concluded that foreign national had established requisite physical presence during relevant period and granted citizenship — Minister appealed — Appeal dismissed — Although evidence tendered by foreign national was not perfect, she made reasonable effort to meet burden of establishing number of days of residence — ICES report, which was supposed to record her history of entries into Canada, was incomplete for reasons beyond her control — Since border authorities could not provide foreign national with dependable record, all she could do was offer her own estimates — Foreign national offered three estimates of her absences, in good faith, at various stages of citizenship proceedings — Upon considering ICES report and foreign national’s explanations, which he deemed credible, citizenship judge adjusted incomplete ICES entries for 2008 to account for 36 work weeks — Citizenship judge came up with 346 absences, for physical presence of 1,146 days — Citizenship judge observed that ICES report showed nearly as many early entries as late entries, so that these cancelled each other out and rendered reasonable foreign national’s estimate of 2 absences for every 7 days — It was open to citizenship judge to reach this conclusion — Citizen judge’s subsequent speculation on days of physical presence, applying different calculations, did not override reasonable finding that foreign national met residence requirement — Citizenship judge’s use of words “probably” and “likely” did not negate firm conclusion on physical presence — Mandate of citizenship judge is to assess residence on balance of probabilities — Law has never required certainty — Finding that it was more likely than not that person has met residence requirement justified grant of citizenship

 

Canada Immigration Case-law Canada v Purvis, CITIZENSHIP — General by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

CITIZENSHIP — General

Judgement for this Case: Click here!

Application for citizenship was approved on May 27, 2014 — Minister appealed decision pursuant to s. 14(5) of Citizenship Act (Can.) — This provision has been replaced with judicial review scheme — Section 39 of Strengthening Canadian Citizenship Act (Can.) (“SCCA”), provided that appeal procedure continued to govern cases which were initiated and not concluded before s. 20 of SCCA came into force — Section 20 came into force on August 1, 2014, after Minister brought appeal — Consequently, s. 14(5) scheme governed this proceeding

Canada Immigration Case-law Canada v Haq, IMMIGRATION — Refugee status — Procedure by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

IMMIGRATION — Refugee status — Procedure

Judgement for this Case: Click here!

Applicant’s claim for refugee protection was rejected — Board found applicant not to be credible, would not be at risk if returned to country of origin and political scene in country of origin had changed — Applicant received negative pre-removal risk assessment (“PRRA”) three years later — Officer noted that evidence was required to show that 2009 arrest warrants remained outstanding in 2013 unanswered — Applicant sought judicial review asserting new and significant evidence was overlooked and given no weight or too little weight by PRRA officer — Application granted — Officer failed to recognize that 2009 arrest warrants validated claims found not to be credible by Refugee Board and provided evidence that applicant continued to be at risk — Officer failed to note importance of evidence f newspaper article that reported on 2009 arrest warrants and supported validity of warrants — It was unreasonable to distrust evidence from relatives and friends simply because it came from such sources — It was wrong to ignore evidence because it was like that given at refugee hearing — Officer mishandled report as to complaint of applicant’s wife to police — There was no evidence they took appropriate action to protect her or to investigate as to her assailants

Canada Immigration Case-law Canada v Huang, IMMIGRATION — Refugee status — Requirements by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

IMMIGRATION — Refugee status — Requirements

Judgement for this Case: Click here!

State refused to remove intrauterine device that state required to be inserted after applicant gave birth to one child — Applicant fled country of origin and arrived in United States — Applicant’s claim for refugee protection was rejected — Refugee Protection Division (“RPD”) concluded applicant failed to seek asylum in United States, which undermined her credibility — Fact applicant was free to leave country of origin undermined claim that she was sought by authorities — RPD held that even if applicant became pregnant and were to return to country of origin, she would only be subjected to social maintenance fee — Applicant sought judicial review — Application dismissed — Decision in result was reasonable particularly on issue of country shopping and lack of physical harm if returned to country of origin

Canada Immigration Case-law Canada v Kulasekaram, IMMIGRATION — Refugee status — Procedure by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

IMMIGRATION — Refugee status — Procedure

Judgement for this Case: Click here!

Refugee Protection Division (“RPD”) denied applicant refugee protection — RPD noted problems with applicant’s story and absence of corroborating evidence that he was being sought by authorities in country of origin — RPD did not believe applicant was wanted by government security forces and did not believe evidence of his subjective or objective fear — Applicant sought judicial review asserting RPD engaged in flawed credibility assessment — Application dismissed — Decision was reasonable — It was within RPD’s jurisdiction to give varying weight to relevant evidentiary element in reasonable objective manner — RPD conducted independent analysis of credibility and assessed objective and subjective elements of claim — RPD did not inappropriately conflate credibility concerns in respect of past incidents of alleged persecution with credibility of sur place basis of claim — There was no inadequacy in reasons

Canada Immigration Case-law Canada v Lasab, IMMIGRATION — Refugee status — Requirements by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

IMMIGRATION — Refugee status — Requirements

Judgement for this Case: Click here!

Applicants were from Czech Republic — Female applicant was Roma and minor applicant was partial Roma — Male applicant did not face any discrimination until he met female applicant — Male applicant claimed he experienced racial insults, problems with co-workers, demotion, pay reduction and forced employment relocation — Female applicant allegedly had bottle smashed over her head by skinhead — It was alleged that minor suffered psychological and physical abuse at school — Refugee Protection Division (RPD) denied applicants’ refugee protection claims on basis of adverse credibility findings and existence of state protection — Applicants applied for judicial review — Application dismissed — Standard of review was reasonableness — RPD’s conclusion on credibility was subject to deference and its findings on credibility were reasonable — Discrepancies and omissions in applicants’ story were major and it was entirely within RPD’s mandate to reject explanations offered by applicants — Applicants failed to establish events leading to claim

Canada Immigration Case-law Canada v Meng, IMMIGRATION — Refugee status — Requirements by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

IMMIGRATION — Refugee status — Requirements

Judgement for this Case: Click here!

Well founded fear of persecution — Refugee claimants were citizens of China who alleged fear of persecution from Public Security Bureau (PSB) as members of underground church — Claimants alleged that while they were in Canada on visitor visas their son in China called to tell them that PSB had informed him that underground church parents attended had been raided and that several members had been arrested — Claimants alleged that son told them that PSB kept returning every four or five months looking for them — Upon arrival in Canada claimants began attending Christian church and were baptized second time and obtained baptismal certificates — Board drew negative credibility inference from fact that claimants provided no documents, such as summons or arrest warrant, to support their allegation that PSB had sought to arrest them — Board also drew negative inference from claimants’ lack of effort to obtain information regarding church members allegedly arrested — Board found claimants lacked subjective fear as they did not claim refugee status upon arrival in Canada — Board concluded that claimants had not practiced Christianity in China, were not sought after by PSB, and were not genuine Christians now — Board denied claim and claimants applied for judicial review — Application dismissed — Board identified number of credibility concerns that were reasonable and cumulatively sufficient to support its final decision — It was reasonable for Board to suspect that timing of alleged church raid and delay in making refugee claim indicated that claimants had intended all along to make refugee claim and delayed it in order to become established at Canadian church — To succeed in their claim, claimants needed to establish that church in China had been raided and members arrested and in absence of any corroborative evidence, they failed to do so — In light of many implausibilities and inadequacies in testimony, Board was entitled to consider presumption of truthfulness rebutted

Canada Immigration Case-law Canada v Miller, IMMIGRATION —Selection and admission — Humanitarian and compassionate grounds by Joy Stephen, Polinsys

Editorial Caselaws Leave a Comment

IMMIGRATION —Selection and admission — Humanitarian and compassionate grounds

Judgement for this Case: Click here!

Applicant had sole custody of Canadian child whose mother was unable to take care of — Child had serious permanent hearing impairment — Applicant sought permanent residence based on humanitarian and compassionate grounds — Officer requested further information — Applicant sent letter stating medical care available to child in Canada would not be available to child in country of origin — Applicant indicated in letter that study he found on Internet was attached — According to respondent no such document was received — Applicant’s application for permanent residence processed from within Canada on humanitarian and compassionate grounds was refused — Officer stated that despite request for further information regarding medical care available to child in country of origin, applicant provided additional written statements but no corroborative evidence — Officer concluded child could return to country of origin with applicant — Applicant sought judicial review — Application granted — Report was relevant to analysis and its absence led to key finding — Officer should have informed applicant that report was missing and requested copy — By failing to do so officer breached duty of procedural fairness