Staying Removal at Federal Court

The Federal Court of Canada can provide interlocutory stays, including staying removal.

There is a three-stage test to be applied when considering an application for an interlocutory injunction.

A court must determine that there is a serious issue or question to be tried, that the applicant would suffer irreparable harm if the injunction were to be refused, and that the balance of convenience (assessed by examining which of the parties will suffer the greater harm from granting or refusing the injunction) rests with the applicant.

As well, it is important to note that a stay of removal is an equitable remedy that is typically only available to an individual who has not committed an inequity.

Irreparable Harm

The Supreme Court of Canada describes ‘irreparable harm’ as follow:

“Irreparable” refers to the nature of the harm suffered rather than its magnitude.  It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.

In other words, harm which can be avoided, or if unavoidable can be cured, is not irreparable harm.

Irreparable harm is often the deciding factor in an interlocutory motion.  In British Columbia Civil Liberties Association v. Canada (Citizenship and Immigration), for example, the Federal Court found that there was no irreparable harm for Canadian citizens facing loss of their citizenship. The reason for this was because there was (and as of writing is) currently a consolidated Federal Court proceeding through which anyone who files an Application for Leave to Commence Judicial Review will receive an automatic stay.  As Justice Zinn noted:

Here, as the Moving Parties admit, the harm to anyone in receipt of a Notice of Intent to Revoke Citizenship is avoidable. They need merely file an application to this Court for leave and judicial review of that revocation notice and they are granted an automatic stay. To date, many have done so.

If now or in the future there are persons in receipt of a Notice of Intent to Revoke Citizenship who through ignorance or lack of resources fail to challenge that decision in this Court, does that change the harm from an avoidable one to an unavoidable one? I think not.



Mootness

The doctrine of mootness is an aspect of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. It applies when the decision of a court will not have the effect of resolving a live controversy which affects or may affect the rights of the parties.
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Asking the Embassy to Re-Consider an Application

Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
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Mandamus Orders

Photo by Travis Nep Smith.
Photo by Travis Nep Smith.

In a previous post I touched upon mandamus orders, and have since gotten numerous e-mails inquiring as to whether or not their case warranted the filing of an Application for a Mandamus Order.

What is a Mandamus Order?

mandamus order is a judicial command to a government body to do or forbear from doing a specific act which it is obligated in law to do.

The Federal Court’s decision in Vaziri v. Canada (Minister of Citizenship and Immigration), 2006 FC 1159, is probably the most cited case in the immigration context for setting forth the test for when a mandamus order will be given.  There, Justice Snider stated:

The equitable remedy of mandamus lies to compel the performance of a public legal duty that a public authority refuses or neglects to carry out when called upon to do so. Mandamus can be used to control procedural delays (Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff’d [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.), aff’d [2003] F.C.J. No. 813, 2003 FCA 233,). The eight factors are:

(i)  There must be a public legal duty to act;

(ii)  The duty must be owed to the Applicants;

(iii)  There must be a clear right to the performance of that duty, meaning that:

a.  The Applicants have satisfied all conditions precedent; and

b.  There must have been:

I.  A prior demand for performance;

II.  A reasonable time to comply with the demand, unless there was outright refusal; and

III. An express refusal, or an implied refusal through unreasonable delay;

(iv)  No other adequate remedy is available to the Applicants;

(v)  The Order sought must be of some practical value or effect;

(vi)  There is no equitable bar to the relief sought;

(vii)  On a balance of convenience, mandamus should lie.

Generally, all eight of the above factors must be met before a court will issue an order mandamus.  Prior to filing one of our last mandamus application, we made three written requests for the performance of what we considered to be the legal duty of the Canada Border Services Agency to act immediately.  We also filed a lengthy memorandum of law articulating what the legal duty was, why it was owed, and that the balance of convenience favored our client.  The Canada Border Services Agency ultimately performed that duty after being recommended to do so by their lawyer prior to us proceeding to a full hearing.

Mandamus in Permanent Resident Applications

In the Vaziri decision, recently affirmed in  Abdalla v. Canada (Citizenship and Immigration), 2011 FC 988, the Federal Court noted that mandamus would generally not be issued to process permanent residence applications because of the alternative remedy of the applicant obtaining a visitor visa.  The court stated that:

The Applicants contend that the only way for them to have “secure immigration status” is to have their applications finalized. The Respondent argues that the Applicants may take advantage of Temporary Resident Visas (TRVs) in order to reunite family members while the PR assessment process continues. These visas (often referred to as visitor visas) are obtained quickly and easily, they can be valid for fixed periods of time and they may be renewed. Our Court has found in past cases that temporary resident status, or its analogue under the repealed Immigration Act, can fulfil the objective of IRPA to reunite families (see Gupta v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1099 at para. 11 (T.D.) (QL); Zhang v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 529, 2005 FC 427, at para. 8).

As evidenced by the affidavits filed by the Applicants, the Applicants appear to premise their arguments on the desire to be reunited after many years apart. Through the use of TRVs, the father and son have at least one other way of being united. While the PR applications are being assessed, TRVs may provide interim relief

While I appreciate that the Applicants live with uncertainty while the PR applications are being resolved, and that TRVs do not provide the same security or rights as permanent resident status, the use of TRVs is an alternative that is adequate — albeit not perfect. There is no pressing need in this case that the rights vested by PR status be acquired as soon as possible.

(There are of course exceptions to the above which are beyond the scope of this post.)

Lengthy Wait Times and Queue Jumping

Another, and probably the most significant, reason for mandamus applications being rejected is because of how accepted long wait-times are in immigration law.  Hence my previous post titled “A Two Year Delay will Not Necessarily Result in an Order Mandamus.”

As well, as recently confirmed by the Federal Court in Mersad v. Canada (Citizenship and Immigration), 2014 FC 543, mandamus will generally not be ordered where the effect of such an order would be to simply favour one application over others.

Nonetheless, while mandamus should never be used as a first resort, it is an extremely effective last one, and when used properly can be very effective at moving a file along.

Specific Results

It is also important to note that an application for mandamus is to require that the administrative tribunal make a decision.  As the Federal Court of Appeal noted in Dass v. Canada (Minister of Employment and Immigration), it is not the purpose of mandamus “to require a specific decision but rather to require that a decision be taken.”  For example, if there is an unreasonable CIC delay in processing an application, the Federal Court will not order that CIC process and approve the application, only that they process it.


The Right of Permanent Resident Visa Holders to Appeal to the IAD

On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“).  This is unfortunate because the question that Justice de Montigny certified needs to be answered.  That question was:

For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?

The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report.  During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa.  CBSA can then deny entry to Canada on the basis that the person does not have a valid permanent resident visa rather than for the underlying possible inadmissibility.  Many immigration practitioners have suspected that the reason for this is to prevent the prospective permanent resident from having a right of appeal to the Immigration Appeal Division (the “IAD“).

The Federal Court’s decision in Ismail in my opinion raised more questions than it answered, and it is unfortunate that the question will remain murky until the question is again certified in the future.

Continue reading “The Right of Permanent Resident Visa Holders to Appeal to the IAD”


Evidence that Can be Used at a PRRA

A Pre-Removal Risk Assessment (“PRRA“) application by a refused refugee claimant is not an appeal or reconsideration of the decision of the Refugee Protection Division to the failed refugee claim.

Section 113(a) of the Immigration and Refugee Protection Act (“IRPA“) provides that an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the failed refugee claimant could not reasonably have been expected in the circumstances of the refugee claim to have presented.  Specifically, IRPA s. 113(a) states:

 Consideration of an application for [a PRRA] shall be as follows:

(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;

Accordingly, as the Federal Court of Appeal noted in Raza v. Canada (Citizenship and Immigration), PRRA officers must respect the negative refugee determination unless there is new evidence of facts that might have affected the outcome of the Refugee Protection Division hearing.

There are numerous factors that PRRA officers must consider when determining whether to admit new evidence.  These include:

  1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered.
  2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered.
  3. Newness: Is the evidence new in the sense that it is capable of:
    1. proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the Refugee Protection Division, or
    2. proving a fact that was unknown to the refugee claimant at the time of the Refugee Protection Division hearing, or
    3. contradicting a finding of fact by the Refugee Protection Division (including a credibility finding)? If not, the evidence need not be considered.
  4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the Refugee Protection Division? If not, the evidence need not be considered.
  5. Express statutory conditions:
    1. If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the Refugee Protection Division hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the Refugee Protection Division hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the Refugee Protection Division hearing? If not, the evidence need not be considered.
    2. If the evidence is capable of proving an event that occurred or circumstances that arose after the Refugee Protection Division hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).

PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds above.


US War Deserters – Immigrating to Canada

In a decision that has received much media attention, the Federal Court of Appeal (“FCA“) on July 6, 2010, released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war”.  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He has been AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

He then filed a Pre-Removal Risk Assessment (“PRRA“), and an application for permanent residence based on Humanitarian & Compassionate (“H&C“) grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

The appellant did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  The appellant sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

PRRA and H&C Applications Require Different Tests

The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.

This judgment is the latest in a series of decisions reminding Immigration Officers that PRRA and H&C applications require different tests.

The Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

H&C applications, meanwhile, require officers to regard public policy considerations and humanitarian grounds, including family-related interests.

The Officer did not appear to consider this, instead noting with regards to the H&C application that:

It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.

Once again, the FCA stressed that it was not altering the discretion of officers, nor that it was giving Mr. Hinzman a right to a particular outcome. Rather, it found that the  Officer had to apply the appropriate test.

Operational Bulletin 202

As a result of the Hinzman decision, Citizenship and Immigration Canada (“CIC“) released Operational Bulletin 202, which states:

This operational bulletin provides immigration officers in Canada with instructions on processing cases involving military deserters.

Background

Some individuals who may have deserted the military or who may have committed an offence equivalent to desertion of the military in their country of origin have sought refuge in Canada. Desertion is an offence in Canada under the National Defence Act (NDA). The maximum punishment for desertion under section 88 of the NDA is life imprisonment, if the person committed the offence on active service or under orders for active service. Consequently, persons who have deserted the military in their country of origin may be inadmissible to Canada under section 36(1)(b) or 36(1)(c) of the Immigration and Refugee Protection Act.

The current inventory of military deserter cases is comprised primarily of members of the United States armed forces who have claimed refugee protection in Canada. Desertion from the armed forces is described as an offence pursuant to section 85 of the United States Uniform Code of Military Justice.

Many of the persons in our current case inventory have had their refugee claims heard and have subsequently applied for permanent residence in Canada based on humanitarian and compassionate considerations. Some have also applied for permanent residence in Canada as members of the spouse or common-law partner in Canada class. Others have filed Pre-removal Risk Assessment (PRRA) applications when faced with removal from Canada. These applications are at various stages of processing either in the regions or at CPC-Vegreville.

All cases which have come to the attention of the Case Management Branch (CMB) have been identified in FOSS via a non-computer based entry.

General guidelines
Processing applications for permanent residence in Canada

Given the complexity of equating either a conviction for desertion or the commission of an act constituting an offence of desertion under a foreign law with an offence under an Act of Parliament (the National Defence Act), officers are instructed to contact their Regional Program Advisor (RPA) for guidance when processing applications for permanent residence in Canada made by military deserters. Officers are also instructed to copy the Case Review Division of the CMB on their initial communication with their RPA.

Processing claims for refugee protection in Canada

Notification of all new claims for refugee protection by military deserters and any updates to these refugee claims including PRRA applications must be provided to CMB using the existing guidelines on processing high profile, contentious and sensitive cases (OP 1, section 15).

CPC-Vegreville

In accordance with current instructions with respect to cases where a personal interview or an in-depth investigation may be required, CPC-Vegreville is asked to transfer applications filed by military deserters to the appropriate inland CIC for processing.

Through Access to Information Act requests we have also obtained what appear to be two internal directives to CIC officers that will be helpful to anyone with clients whose refugee claims are at least partially based on desertion.  They include research sources, factors that officers should consider, and possible interview questions.