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

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IMMIGRATION — Refugee status — Procedure

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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

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IMMIGRATION — Refugee status — Requirements

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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

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IMMIGRATION — Refugee status — Procedure

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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

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IMMIGRATION — Refugee status — Requirements

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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

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IMMIGRATION — Refugee status — Requirements

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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

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IMMIGRATION —Selection and admission — Humanitarian and compassionate grounds

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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

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

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IMMIGRATION — Refugee status — Procedure

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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 Namweya, IMMIGRATION — Refugee status — Requirements by Joy Stephen, Polinsys

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IMMIGRATION — Refugee status — Requirements

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Applicant’s claim for refugee protection was rejected — Refugee Protection Division (“RPD”) found applicant’s failure to disclose her HIV condition in her original PIF created negative inference — RPD found applicant failed to take reasonable steps to avail herself of state protection and applicant failed to show state protection was inadequate — Applicant sought judicial review — Application dismissed — Finding applicant was not credible was reasonable — Applicant did not seek protection whether from police or any other state or private agency

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

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IMMIGRATION — Refugee status — Requirements
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Applicants were Czech nationals of Roma ethnicity — Applicants claimed there were number of incidents that constituted persecution, including several attacks by skinheads, racial insults on public transport and being forced off transport and being removed from soccer team — There were claims of forced sterilization and of petitions to remove Romas from rental properties — One applicant suffered from mental illness and was enrolled in special needs school, without parents’ consent, where he was constantly harassed, attacked and injured — Reports of attacks were made to police but no arrests were made — Applicants claimed refugee protection — Refugee Protection Division (RPD) denied refugee protection status based on credibility concerns, finding that incidents did not rise to level of persecution and that applicants had not rebutted presumption of state protection with clear and convincing evidence — Applicants applied for judicial review — Application granted — It was unreasonable and unfair for RPD to lump all applicants into concerns about credibility of one applicant — RPD found applicant to be credible except for two incidents and expressed no substantive credibility concerns about other applicants — RPD’s credibility findings could not stand — RPD failed to provide analysis of cumulative effects of incidents or explanation of why incidents of discrimination did not reach level of persecution — Applicants were entitled to know why incidents did not rise to level of persecution — Issue of state protection was live issue and RPD failed to consider operational adequacy, which it was required to do — State protection analysis was incomplete

Canada Immigration Case-law Canada v Singh, IMMIGRATION — Inadmissible and removable classes- Misrepresentation by Joy Stephen, Polinsys

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IMMIGRATION — Inadmissible and removable classes- Misrepresentation
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Applicant applied to Saskatchewan Immigrant Nominee Program (“SINP”) under Farmer Entrepreneur Category — SINP invited applicant to visit Saskatchewan — Applicant sought temporary resident visa — Officer noted applicant did not disclose that applicant was previously asked to leave United States 19 years ago — Applicant was provided 30 days to respond to officer’s concerns — Applicant asked officer to consider that removal was result of his overstaying his time in United States following failed refugee claim and not due to criminal or medical inadmissibility — Applicant also said that had he declared such removal, it would not have resulted in refusal of admittance to Canada — Applicant’s application for temporary resident visa was refused — Applicant sought judicial review — Application dismissed — There was misrepresentation — It was not for applicant to decide what was relevant — Applicants were required to make full disclosure — It was for officer to decide what was relevant and what weight to give any particular fact disclosed — It was not whether visa would have been refused had full disclosure been made but rather point was that it could have induced error because it could have impacted officer’s decision on whether applicant would leave at end of visa period, and it could have induced error if there were other inadmissibilities — Applicant’s failure to understand clear wording could not be used to avoid consequences of misrepresentation — Given clear questions and instructions on form, it was not reasonable for applicant to believe that he was not misrepresenting material fact when he decided to omit information of which he was fully aware — Misrepresentation was clearly material to decision that had to be made — Reasons were adequate — GCMS notes were part of reasons and notes clearly explained why non-disclosure was found to be material misrepresentation