Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life?
The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today. The Federal Court of Appeal will soon answer the question.
The facts in Laidlow giving rise to the question were essentially that an individual had a pending H&C claim which was based on risk to life (availability of medical treatment reasons) at the time that he appeared for his refugee hearing. He asked that the refugee hearing be adjourned until the H&C application was determined. The IRB refused to do so, and heard the refugee claim, which was dismissed.
The Court’s answer to the question was that refusing to adjourn the hearing did not breach section 7 of the Charter. Relying on Poshteh v. Canada,  3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada),  4 SCR 429, the Court articulated the following principles:
- A finding of inadmissibility does not engage an individual’s section 7 Charter rights. The reason is because a number of proceedings may take place before an individual reaches the stage at which his deportation from Canada may occur.
- Section 7 does not place upon the state a positive obligation to ensure that each persons enjoys life, liberty or security of the person. Rather, it restricts the state’s ability to deprive people of these.
Considering that the jurisprudence is fairly settled on the first point,Read more ›
Last updated on July 22nd, 2018
I was recently asked where one can learn how to request that an “enforcement flag” against them be removed so that an individual does not have to go to a secondary examination every time they enter Canada.
This is actually a question that comes up rather frequently, so for all those who are interested, here is the relevant section from the Immigration, Refugees and Citizenship Canada Manual:
There are other ways to remove enforcement flags where the procedure outlined above is not working.Read more ›
The following is a table that shows the Immigration Appeal Division inventory as of September 30, 2011. As of that date, there were 11,828 cases pending. In Western Canada, a disproportionate majority involved sponsorship appeals. I like to think that Peter Larlee and Vivian Yuen, lawyers with our firm, represented individuals on a disproportionately high number of those appeals.
Type of Appeal
2,352Read more ›
Individuals who have been ordered released from detention by the Immigration and Refugee Board should not always assume that the matter is finished. The Department of Justice, at the request of its government client, can seek to overturn that decision. They can also seek a stay of the release from detention pending the resolution of the underlying application to overturn the release order.
The test for a stay of release from detention is the same tripartite test found in all stay applications. In order to obtain a stay of release, the Department of Justice must show that:
- There is a serious issue to be tried;
- There is a risk of irreparable harm; and
- The balance of convenience favours preventing the release.
There is a Serious Risk to be Tried
There are many reasons why the Government of Canada might seek a judicial review of an Immigration and Refugee Board Member’s decision to release an individual from detention. One of the more common ones is where a Board Member releases someone who the Immigration and Refugee Board has already ordered an individual detained. In Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4, Justice Marshall Rothstein stated:
Credibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker’s assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.Read more ›
It is important that applications be as thorough as possible in their applications. The Federal Court has consistently said that the onus is on visa applicants have one shot to put their best foot forward.
In Owusu v Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal put the principle differently, but in a way that is just as clear. It stated that applicants have the onus of establishing the facts on which their claim rests, and that they omit pertinent information from their written submissions at their peril.
Gonzalez Vazquez v. Canada (Citizenship and Immigration) is a perfect example of how important that it is to be as thorough as possible. There, an applicant wanted to convey in an Application to Immigrate to Canada for Humanitarian & Compassionate Considerations how detrimental removal would have been to her children. To this effect, she had the child’s teacher write a letter. The letter stated that:
[T]he same value is not placed on “safe and caring” schools, and children are often in danger of being harassed by others, or having their belongings stolen. Would their children be a target? It seems likely, since they have only known Canadian culture, and barely speak Spanish.
The immigration officer in rejecting the application considered this statement in the context in which it was made; the context that their inability to communicate in Spanish was likely to lead to harassment and their being targeted. The officer read it as an anti-bullying argument. Apparently, the applicant had wanted to convey that the language issue would have an adverse impact on the childrens’ ability to have proper access to and reasonable success at school. However, the letter did not clearly state this.Read more ›
Last updated on March 25th, 2021
One of the most common reasons for seeking judicial review is because of concerns that a tribunal did not consider an applicant’s evidence in its entirety.
Relevant Documents Must be Considered or Mentioned
Federal Court of Canada jurisprudence is clear that when assessing the credibility of an individual, tribunals have to consider and assess all of the evidence, both oral and documentary, and not just selected portions of it.
As the Federal Court of Appeal noted in Stelco Inc. v. British Steel Canada Inc. a tribunal must explain its conclusion on those issues that are of central importance to the decision. It is not necessary, however, for tribunals to quote from the evidence in its reasons. In Gourenko v. Canada (Minister of Citizenship and Immigration), the Court established the criteria of whether a piece of evidence is relevant to an important matter. The Court stated:
In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems to me that the topic addressed in the document must be directly relevant to the applicant’s claim. For example, documents sent to or received by a claimant, or prepared for a claimant, or about a claimant, which bear on relevant issues would, in the ordinary course be mentioned in reasons. In addition, if a document is directly relevant to the facts alleged by an applicant, one would expect to see that document addressed in the Refugee Division’s reasons.Read more ›
Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.Read more ›
Last updated on August 9th, 2021
A 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 one of 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)  2 S.C.R. 307 at para. 149). The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General),  1 F.C. 742 (C.A.), aff’d  3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration),  4 F.C. 189 (T.D.), aff’d  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.Read more ›
There, I wrote that:
Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. (Umubyeyi v. Canada). Accordingly, the IRB and the courts take the right to proper interpretation seriously.
A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous (Mohammadian). An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation.
Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1161, provides a more comprehensive summary of the common law principles governing translation. These principles are that:
a. The interpretation must be precise, continuous, competent, impartial and contemporaneous.
b. No proof of actual prejudice is required as a condition of obtaining relief.
c. The right is to adequate translation not perfect translation. The fundamental value is linguistic understanding.
d. Waiver of the right results if an objection to the quality of the translation is not raised by a claimant at the first opportunity in those cases where it is reasonable to expect that a complaint be made.
e. It is a question of fact in each case whether it is reasonable to expect that a complaint be made about the inadequacy of interpretation.Read more ›
In this post, which will be updated frequently, I will be looking at scenarios where the Federal Court ordered costs. I’m hoping that this post can become a useful reference for Federal Court practitioners.Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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