Category: Recent Cases

The Court set aside a decision where the tribunal relied on an immigration form that was not translated to the applicant.

The Court found that the visa officer could refuse an application of a sponsorship even after an appeal being allowed by the IAD if new facts arose relevant to the application that were not considered by the IAD.

The Court refused to consider a judicial review and dismissed it due to the repeated breaches of immigration law by the applicant that included failure to report for removal.

The court set aside a decision where the member required counsel to speak in Darsi because he could not understand his english. [17] Proceedings before federal boards and tribunals are to be conducted in either of the official languages. Translation is provided for the benefit of witnesses, not counsel. The procedure that unfolded in this case wherein it required the applicant’s counsel to speak in Dari, despite the interpreter being Farsi, and with the balance of the proceeding being conducted in English created a situation which undermined the seriousness of a claim under the Convention and was at best, confusing. Lost in it all was the applicant who, despite his request for a Dari translator, testified in English. While the Board member made the best he could of a difficult situation, the fact remains that the proceedings did not conform to the requirements of procedural fairness.

The Court noted that in making a plausibility finding the tribunal had to refer to some evidence to sustain its finding.[P]lausibility findings involve a distinct reasoning process from findings of credibility and can be influenced by cultural assumptions or misunderstandings. Therefore, implausibility determinations must be based on clear evidence, as well as a clear rationalization process supporting the Board’s inferences, and should refer to relevant evidence which could potentially refute such conclusions [emphasis added].

The Court set aside a decision based on adequate state protection citing the failure of the tribunal to assess the applicant's personal circumstances.

The Court set aside a decision that there was adequate state protection holding that mere intentions were not sufficient: [15] The bulk of the Board’s decision is taken directly from document 5.3 of the National Documentation Package. This reference enumerates the existing legislation in St. Vincent, proposed legislative measures and the government’s intentions regarding services for victims of domestic violence. This focuses more on good intentions and possible future measures than the actual protections in place. The jurisprudence is clear that findings of state protection cannot solely rely on government intentions and proposed legislations: Clyne v Canada (Minister of Citizenship and Immigration), 2004 FC 1670 at para 8; Mitchell v Canada (Minister of Citizenship and Immigration), 2006 FC 133 at paras 9-10). Nor does the Board’s decision mention the many documents in the record which outline the ineffectiveness of the measures summarized in the cited reference.

The Court set aside a decision where there was a finding of adequate state protection noting: [15] The Board was required to justify its finding that Ms. Varela had not rebutted the presumption, in a transparent and intelligible way (Hazime v Canada (Minister of Citizenship and Immigration), 2011 FC 793, [2011] FCJ No 996 at para 17). The Board did not meet this standard of reasonableness. [16] The Board did not provide any analysis of the operational adequacy of the efforts undertaken by the government of Honduras and international actors to improve state protection in Honduras. While the state’s efforts are indeed relevant to an assessment of state protection, they are neither determinative nor sufficient (Jaroslav v Canada (Minister of Citizenship and Immigration), 2011 FC 634, [2011] FCJ No 816 at para 75). Any efforts must have “actually translated into adequate state protection” at the operational level (Beharry v Canada (Minister of Citizenship and Immigration), 2011 FC 111 at para 9. [17] Here, while the Board acknowledged that the police were unsuccessful in providing protection to Ms. Varela, it failed to assess how the efforts to deal with gang violence had translated into protection for women targeted for sexual assault, other than by reference to evidence of attempts by gang members to avoid detection by changing their style and appearance. [18] The extensive evidence cited by the Board attests to the overwhelming nature of the gang problem in Honduras. That evidence, characterized by counsel as “bleak, dire, endemic and pervasive”, supports Ms. Varela’s position that adequate state protection is not forthcoming for women targeted by gang members for sexual assault. Honduras’ need to approach the international community for support in addressing its problems, relied upon by the Board as evidence of the measures being taken, bolsters Ms. Varela’s contention that Honduras cannot provide such protection adequately itself. [19] To the extent that the Board based its findings on the fact that Honduras is a functioning democracy, it also failed to consider the evidence regarding the situation in the months following Ms. Varela’s attack. Honduras was in a situation of political tension culminating in a military coup in June of 2009. While the Board could have considered whether a change in circumstances had occurred making state protection once again available – Honduras may have rebounded since its elections in November of 2009, for instance – it did not.

The Court set aside a finding that the person was inadmissible on grounds of misrepresentation holding that there was an innocent mistake exception and the need to consider this possibility

The officer set aside a decision relating to the best interests of the child decision noting: The officer finds with respect to 12-year old Alonzo that “[t]here is little questioning that his best interests would be met were he to remain in Canada.” The officer then goes on to examine the impact on Alonzo if he is returned to Mexico and finds that if he were to be removed to Mexico his interests would not be “compromised.” As for the younger son, Pierre-Alexandre, the officer finds that his best interests are to “remain as a family unit, with the emotional, physical and financial support of his parents.” This is hardly surprising. It would be a very unusual case where an infant’s best interests are that he be removed from his parents and family. Contrary to his brother’s situation, the officer makes no finding as to whether his interests are best served by remaining in Canada or being removed to Mexico. The officer fails to clearly and specifically address how Pierre-Alexandre would be affected by his removal to Mexico with his parents. The officer ought to have initially considered Pierre-Alexandre’s best interests and then subsequently considered whether his removal from Canada would compromise those interests, such that the family ought to remain in Canada on H&C grounds. [10] The officer acknowledged that the evidence “demonstrates that corruption, violence and human rights violations are problems in Mexico.” The officer states that “[t]hese are risks unfortunately faced by all people residing in Mexico.” Accordingly, these would be risks faced by Pierre-Alexandre if he is removed. As such, the officer needed to examine them in order to be alert, alive and sensitive to this child’s interests. The officer did not. He or she fails to deal with this child’s interest as a Citizen of Canada in not being removed to such an environment. Accordingly, I find a failure to properly weigh this child’s interests. Simply, the analysis of the impact on this child of his removal to Mexico is wanting and for that reason this application is allowed.