Can the Federal Court Order Continued Detention

The Federal Court in Canada (Public Safety and Emergency Preparedness) v. Lunyamila has certified the following question of general importance:

Does the Federal Court have jurisdiction to usurp the jurisdiction of the Immigration Division of the Immigration and Refugee Board of Canada to order the release of the detainee pursuant to the Immigration and Refugee Protection Act, SC 2001, c 27, by ordering that the detainee shall remain in detention until further Court order?

The timeline giving rise to the question was as follows:

5 January 2016 Mr. Lunyamila is ordered released from detention. The very same day the Minister applied for leave and judicial review under docket number IMM-63-16 and obtained an interim stay from Madam Justice Simpson.
8 January 2016 Mr. Justice Shore extended the interim stay to 19 January as a transcript of the hearing was not yet available.
20 January 2016 Mr. Justice Shore granted an interlocutory stay. While he noted that there would be another 30-day review upcoming and that the case might possibly be heard on an expedited basis he stayed the release “until the application for leave and judicial review is determined on the merits.”
2 February 2016 Mr. Lunyamila was again ordered released by the IRB. The Minister again was able to file an application for leave and judicial review that day under IMM-502-16 and obtain an interim stay of release from Mr. Justice Mosley, in effect until 16 February.
16 February 2016 Mr. Justice Simon Noël set a timetable with respect to both the January and February decisions, leading to the applications for leave to be heard on 3 March 2016, and if granted, immediately followed by a hearing on judicial review. His order in both docket numbers provides, “the interim stay of the release is extended until a final determination…”
1 March 2016 Mr. Lunyamila was again ordered released and again the Minister applied for leave and for judicial review. He also applied for a stay of the release which normally would have gone to the ROTA judge in Vancouver. However, as I was already in Vancouver on other matters, and assigned to hear the applications for leave and judicial review on 3 March, it was I who reviewed the matter and granted an interim stay of the release. The docket number in question is IMM-913-16.
3 March 2016 I granted leave to judicially review the January and February decisions and then granted the applications, with reasons to follow. I simply stayed proceedings with respect to the March decision.

As Justice Harrington noted:

I find it somewhat disconcerting that an individual who has been held in detention for more than two years as being a danger to the public can be ordered released with immediate effect. This lead to a mad scramble on the part of the Department of Justice, which fortunately was able to obtain an ex parte interim stay of that release. While the liberty of the individual is most important, so too is the safety of the public. Surely it would be better to delay the release, even if only for 24 hours, in order to allow the Minister to assemble a more complete record.

Fortunately the Minister was able to repeat the same process with respect to the February decision. However, it is always possible that there be a slip up and that the detainee be released before the Minister is able to obtain a stay. In that case what is the jailer to do? On the one hand the IRB has ordered his release; on the other hand this Court has ordered that his release be stayed. It of course can be argued that the January decision had become moot. However, a decision in that regard is to be made by this Court, not by the IRB, and not by the jailer. If I were the jailer and released someone like Mr. Lunyamila, I would be concerned that I would be brought before the Court to show cause why I should not be held in contempt of court.

There is no clear statement in this judgment that the Immigration Division of the IRB can trump an order of this Court. It seems to me it would be far better if one were to order the release in a subsequent detention review subject to the outcome of the judicial review in which this Court had already granted a stay of release. It would then fall upon the detainee, not the Minister, to move the Court to have the earlier stay set aside in accordance with section 50 of the Federal Courts Act.

I shall post the Federal Court of Appeal’s answer once it is available.


Complicity in Article 1FA Cases

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining Article 1F(a) exclusions.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

Continue reading “Complicity in Article 1FA Cases”

Refugee Claimants and Fake Documents

A challenge that arises in many refugee claims where a claimant has used fraudulent documents to travel to Canada is the balancing of the need to determine a claimant’s identity with jurisprudence that cautions against drawing negative credibility findings from the use of false documents where refugee claimants have little choice but to to use false documents to leave their country.

In Gulamsakhi v Canada (Minister of Citizenship and Immigration), 2015 FC 105, for example, the Federal Court stated that:

… this Court has repeatedly cautioned against drawing negative conclusions based on the use of smugglers and forged documents to escape violence and persecution. Travelling on false documents or destroying travel documents is of very limited value as a determination of the claimant’s credibility. This is partly because it is not uncommon for a person fleeing persecution to follow the instructions of the person(s) organizing their escape.

Another, and perhaps the most frequently cited case on this principle, is Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587, where the Federal Court stated that:

Where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent’s instructions, it has been held to be peripheral and of very limited value as a determination of general credibility. First, it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. Second, whether a person has told the truth about his or her travel documents has little direct bearing on whether the person is indeed a refugee.

As the Federal Court recently noted in Koffi v. Canada (Citizenship and Immigration), 2016 FC 4, refugee claimants must also establish their identity.  In Koffi, while the Court found that applicants must establish their personal identity with reliable and probative evidence, their secondary evidence should not be given very little weight just because they used fraudulent documents to travel to Canada.

When are Documents Fake?

Federal Court jurisprudence establishes that there must be some reason or evidence to rebut the presumption that government-issued documents are valid.  There must be evidence to rebut this presumption. To rebut the presumption of validity, the evidence or reason for doubting the documents must be more than general statements about country conditions.

As the Federal Court recently noted in Adesida v. Canada (Citizenship and Immigration):

In this matter the RAD admitted the documents. While it is not clear from its reasons it appears that, to some extent, the RAD may be questioning their genuineness. However, if that is the case, it provides no reason or evidence to rebut the presumption that the new evidence, government-issued documents, are not valid. Nor does it address what appears to be security features on the birth certificate and certificate of origin. This Court has previously held that the existence of official stamps constitutes a security feature for the purposes of evaluating authenticity (Dai v Canada (Citizenship and Immigration), 2015 FC 723 at para 27; see also: Elhassan v Canada (Citizenship and Immigration), 2013 FC 1247 at para 22; Ru v Canada (Citizenship and Immigration), 2011 FC 935 at para 21; Zheng v Canada (Citizenship and Immigration), 2008 FC 877 at para 18).


Borderlines Podcast Episode 1

Peter Edelmman, Deanna Okun-Nachoff, and myself have started the Borderlines podcast.  The goal of the podcast is to provide a forum for the discussion of immigration law and policy.  We are currently creating a website and social media channels.  In the meantime, our first episode is available on Soundcloud.

In this introductory episode the three of us discuss recent developments in Canadian immigration law, as well as some recent news items and a specific case.

00:30 – 8:39 – We discuss how immigration policy in general has changed under the Liberal government, with a specific emphasis on the Liberal’s repealing the portions of Bill C-24 which revoked the Canadian citizenship of certain individuals convicted of certain offences related to national security.

8:39 – 19:03 – The conversation shifts to Donald Trump, BREXIT, and whether Canada under the Liberal government is bucking an international trend towards increased protectionism.

19:03 – 25:06 – In discussing immigration policy under the new Liberal government, we note that unlike under the Conservatives, where Jason Kenney seemed to be directly or indirectly responsible for all government departments related to immigration law, the Liberals are providing autonomy to the Ministers of each Ministry, and what impact that this may have.

25:06 – 38:50 – Peter Edelmann leads off a discussion on Immigration, Refugees and Citizenship Canada’s current consultations regarding immigration levels planning in Canada. The discussion becomes a very philosophical one about whether centralised planning is necessary, what Canada’s population should be, and how Canada attempts to meticulously control permanent resident numbers while at the same time does not have an overall plan for how many temporary residents are admitted.

38:50 – 41:25 – Steven Meurrens provides a case summary of Sendwa v. Canada (Citizenship and Immigration), 2016 FC 216. In this decision the Federal Court greatly broadened the ability of Canadian permanent residents and citizens to sponsor their relatives. Canadian immigration law provides that a relative of a sponsor, regardless of age, can be sponsored by a Canadian citizen or permanent resident, if that sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father. Traditionally IRCC interpreted this as requiring that the Canadian sponsor not have a living spouse, child, parent, grandparent, etc. However, the Federal Court clarified that this is too stringent, and instead stated that the law only requires that the Canadian sponsor not have a sponsorable child, parent, grandparent, etc. The distinction will likely be important for Canadians who either do not meet the income requirements for the parents and grandparents program, or whose parents may be medically inadmissible.

41:25 – 53:16 – Deanna Okun-Nachoff comments on how John McCallum, Canada’s Minister of Immigration, Refugees and Citizenship Canada, recently committed to “getting rid of silly rules.” She discusses some of the rules that she finds silly, including the Temporary Resident Permits issued to victims of human trafficking, and numerous quirks of Express Entry.


LMIA Exemption for Francophones

On June 1, 2012, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 429 (“OB 429“).  OB 429 provides that francophones destined to a province other than Quebec who will be working in a high skilled occupation can receive two year significant benefit work permits.  The benefit of a significant benefit work permit is that no Labour Market Impact Assessment (“LMIA“) is required.

To qualify for the LMIA exemption, applicants must:

  • apply at a visa office outside Canada;
  • have been recruited through Destination Canada or other events coordinated with the federal government and francophone minority communities;
  • be going to work in an occupation which falls under National Occupation Classification 0, A or B;
  • have French as his/her habitual language; and
  • be destined to a province other than Quebec.
Importantly, the job itself does not have to require French.
There does not appear to be any limit on how many times the work permit can be renewed.
Depending how broadly the second requirement is interpreted, this could provide a significant advantage to francophone employers and francophones looking to immigrate to Canada.

The legal justification for providing preferential treatment to francophones intending to work outside of Quebec is based on s. 3(1)(b) of the Immigration and Refugee Protection Act (the “Act“), which states that one of the goals of Canada’s immigration system is:

(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Although there is no legal reason why this LMIA exemption cannot also apply to anglophones seeking employment in Quebec, people awaiting an Operational Bulletin to this effect hopefully know how to hold their breath for a long time.

[Updated – October 2, 2014]

Please note that the LMIA exemption for Francophones ended on September 30, 2014.

As per the CIC website:

The exemption from a Labour Market Impact Assessment (LMIA) under the International Mobility Program for skilled Francophone workers destined to work in a province other than Quebec will be discontinued.

All applications received on or before September 30, 2014, 11:59 p.m. Pacific Standard Time (PST) will be processed and finalized as per the guidelines provided below. Applications received after September 30, 2014 will not be accepted. Foreign workers already in Canada will also not be able to request an extension under this exemption after September 30, 2014.

It is not hard to see why IRCC is bringing back the Francophone exemption. As the chart below shows, the percentage of immigrants of Francophone descent outside of Quebec is around 1%.


[Updated – June 2, 2016]

On June 1, 2016, the Government of Canada reintroduced the exemption, with essentially the same requirements as before.

The Preclearance Act, 2016

On June 17, 2016, Ralph Goodale, the Minister of Public Safety and Emergency Preparedness, introduced Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United states (short titled the “Preclearance Act, 2016”). Amongst other things, the Preclearance Act, 2016 provides for the creation of preclearance areas and perimeters in the United States by Canadian officers of travellers and goods bound for Canada.

Canadians who have travelled by air to the United States during the last several years will be familiar with the concept of preclearance, as the United States already has preclearance areas at most major Canadian airports. There, passengers travelling to the United States clear customs at Canadian airports. When the passengers arrive at American airports, they disembark at domestic terminals, and do not have to again clear customs.

The Preclearance Act, 2016 will allow Canada to set up preclearance areas and perimeters in the United States, and will allow the Canada Border Services Agency (“CBSA”) officials to exercise their powers under the Immigration and Refugee Protection Act in preclearance areas and preclearance perimeters whose locations will be agreed upon between the United States and Canada. Both Canada and the United States have announced that each country intends on establishing preclearance areas and perimeters for air, sea, land, and rail crossings.

At preclearance perimeters and areas and areas CBSA officers will be permitted to admit or refuse travellers to continue to Canada from preclearance facilities prior to them actually arriving at a Canadian port of entry.

Importantly, s. 48(1) of the Preclearance Act, 2016 provides that a traveller in a preclearance area or preclearance perimeter who is seeking to enter Canada is, for the purposes of the Immigration and Refugee Protection Act, outside of Canada. As such, both refugee protection claims and flag-poling will not be possible at preclearance facilities and perimeters.  Indeed, since preclearance perimeters and areas are deemed to be outside of Canada, then port of entry work permit applications will not be possible at them.

As well, CBSA officers in preclearance perimeters and areas will be able to prepare inadmissibility reports if they are of the opinion that a traveller in a preclearance area or perimeter is inadmissible to Canada. Importantly, s. 48(4) of the Preclearance Act, 2016 may permit CBSA to deny admission to Canada of permanent residents where the CBSA determines that the permanent resident has not met their residency requirement. I say “may” because the exact inadmissilibites that will result in the denial of entry to Canada will be prescribed at a future date.

This is just a preliminary summary of the Preclearance Act, 2016 and I hope to provide more information as it becomes available, including where exactly these preclearance areas and perimeters will be. As currently written, the Preclearance Act, 2016 will create an unusual situation in which permanent residents and foreign nationals may need to consider which airport to travel from when they travel to Canada.

Inadequacy of State Protection

Many refugee claimants are not based on situations where the state is the agent of persecution. Rather, the source of risk is a quasi-governmental authority or private actors. In such cases, the issue turns to one of the adequacy of state protection.

Ward v. Canada

The leading decision on the issue of state protection in the context of refugee and pre-removal risk assessment decisions is the Supreme Court of Canada decision Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.  There, the Supreme Court of Canada held that a state’s inability to protect its citizens is the crucial element in determining whether a claimant’s fear of persecution is well-founded as it determines the reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.

Specifically, the Court noted that:

Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection

The Court went on to note that:

Only situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state. [My emphasis]

The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as the reasonable nature of the claimant’s refusal actually to seek out this protection.

Ward involved a somewhat unique case where the refugee claimant’s home state conceded that it could not protect the claimant. However, for cases where such an admission was not forthcoming, the Supreme Court noted that:

Where such an admission is not available, however, clear and convincing confirmation of a state’s inability to protect must be provided For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.

Is there a Subjective Fear of Persecution?

Before the Refugee Protection Division can engage in a state protection analysis, it must first analyze whether a refugee claimant has a subjective fear, and what that fear is.  Thus, in Cobian Flores v. Canada (Citizenship and Immigration), 2010 FC 503, the Federal Court noted that:

[S]ave in exceptional cases, the analysis of the availability of state protection should not be carried out without first establishing the existence of a subjective fear of persecution. The panel responsible for questions of fact should therefore analyze the issue of the subjective fear of persecution, or, in other words, should make a finding as to the refugee claimant’s credibility and the plausibility of his or her account, before addressing the objective fear component which includes an analysis of the availability of state protection.

The reason that it is necessary to analyze whether and what the subjective fear of persecution is before analyzing whether there is adequate state protection is because one has to determine exactly what the state is trying to protect an individual from in order to determine whether that protection is adequate.  As noted by the Court in Velasco Moreno v. Canada (Minister of Citizenship and Immigration), 2010 FC 993:

In my view, a negative determination of the Refugee Protection Division which turns on the issue of state protection must be scrutinized with particular care where the member chooses to make no credibility finding concerning the applicant’s allegations of a subjective fear.

However, the judge sitting in judicial review must be satisfied that the applicant’s allegations, usually in the personal information form and the transcript of the refugee hearing, were treated as true by the decision-maker.Only then can a proper review be made of the member’s state protection analysis. The state protection issue should not be a means of avoiding a clear determination

Effort vs. Results

In Galogaza v. Canada (Citizenship and Immigration), 2015 FC 407, the Federal Court noted that:

A state’s efforts, on their own, do not establish that protection was actually available to the claimant:
[E]vidence of a state’s efforts does not help answer the main question that arises in cases of state protection – that is, looking at the evidence as a whole, including the evidence relating to the state’s capacity to protect its citizens, has the claimant shown that he or she likely faces a reasonable chance of persecution in the country of origin? To answer that question, the Board has to decide whether the evidence relating to the state resources actually available to the applicants indicated that they would probably not encounter a reasonable chance of persecution if they returned to [their country of origin] (Moczo v Canada (Minister of Citizenship and Immigration), 2013 FC 734, at para 10; Beri v Canada (Minister of Citizenship and Immigration), 2013 FC 854, at para 46).

There is some uncertainty on this issue, and in Mudrak v. Canada (Citizenship and Immigration), 2015 FC 188, the Federal Court certified the following question:

Whether the Refugee Protection Board commits a reviewable error if it fails to determine whether protection measures introduced in a democratic state to protect minorities have been demonstrated to provide operational adequacy of state protection in order to conclude that adequate state protection exists?

In the same decision, the Court also certified:

Whether refugee protection claimants are required to complain to policing oversight agencies in a democratic state as a requirement of accessing state protection, when no risk of harm arises from doing so?

Ultimately, however, the Federal Court of Appeal refused to certify these two questions as it found that they were improperly certified.

Other Cases Interpreting Ward

The level of state protection that must be available is “adequate”. (Carillo, 2008 FCA 94)

In Da Souza v. Canada (Citizenship and Immigration), the claimant was a woman from St. Vincent. Her claim was based on her abusive ex-partner. She produced a letter from a police sergeant in St. Vincents. In the letter, this officer noted that Sonia did not ever report incidents to the police. The PRRA officer thus rejected her claim on the basis that the claimant never sought police protection. The Court, however, rejected this decision, noting that the fact that a claimant did not approach the state for protection will not automatically defeat a claim. The Officer was required to analyze whether the state would be able to protect effectively. The Court noted that if it was not objectively unreasonable for the claimant to not seek state protection, then she did not need to go to the authorities.

Where a refugee claimant provides evidence that contradicts the presumption of state protection, then the Refugee Protection Division must consider this evidence.  If it discounts contradictory evidence, then it must explain why (Flores Alcazar v. Canada, 2011 FC 173).  However, the onus remains on the applicant to rebut the presumption of adequate state protection, on a balance of probabilities (Carillo v. Canada, above).

Agencies other than Police

The Federal Court has repeatedly emphasized that the police force is presumed to be the main institution responsible for providing state protection.  Shelters, counsellors and hotlines may be of assistance, but they have neither the mandate nor the capacity to provide protection (Aurelien v. Canada, 2013 FC 707).