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 about: Stays of Release »
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 about: You Omit Information at your Peril »
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 ›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) [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;
» Read more about: Mandamus Orders »
Read more ›In a previous post I introduced some judicial principles regarding the role of translators in proceedings before the Immigration and Refugee Board.
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 about: Translating Errors Lead to Successful Judicial Review »
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 ›People issued removal orders often want to know how long they can stay in Canada before they have to leave, and if there is a chance to defer removal.
Read more ›People appearing before the Immigration and Refugee Board come from all over the world, and often communicate in a language that their counsel, the hearings officers, and members do not understand. Accordingly, translators and interpreters are often used during IRB proceedings.
Translators and interpreters have a very serious and important role in proceedings.
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.
In Xu v. Canada, the Federal Court noted:
As important as this right is, the burden on a person raising interpretation issues is significant. Such a claim must overcome the presumption that a translator, who has taken an oath to provide faithful translation, has acted in a manner contrary to the oath. Simply alleging mistranslation will not be sufficient – the burden is to show that on a balance of probabilities mistranslation occurred.
I speak Mandarin, Chinese. I remember observing a spousal-sponsorship appeal before the Immigration Appeal Division. The spouse’s lawyer, the hearings officer, and the member did not speak Mandarin. The only individuals in the room that understood Mandarin were myself,
» Read more about: Interpreters and Translations »
Read more ›A breach of procedural fairness will generally result in a reviewing tribunal or court remitting the matter back for reconsideration.
There is, however, an extremely narrow exception to this known as the Mobil Oil principle. In Mobil Oil, the Supreme Court of Canada decided not to send a case back for redetermination because the matter that would have been the subject of redetermination was not the subject of the remedies sought, and it was determined to be impractical to send it back. The reason was that the Court had already decided on cross appeal, and that the plaintiffs would thus necessarily lose upon redetermination.
The Mobil Oil principle is thus that while ordinarily an apparent futility of remedy will not bar its recognition, there are cases in which no relief will be offered in the face of breached administrative law principles, such as those which have an inevitable answer. Where a tribunal must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
As noted in Persuaid v. Canada, the principle is not that a reviewing tribunal or court can refuse to send a case back because it supposes that the case would be found to be futile. Rather, it may only do so where the remedy sought would not be relevant in the context of the matter presently before the Court. If the remedy sought by the applicant is precisely the remedy affected by the lack of natural justice and procedural fairness, then the reviewing panel or judge should not presume what the result would be nor should it prejudge a case as hopeless.
» Read more about: Mobil Oil »
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There are few things more devastating for a refugee claimant than when the Refugee Protection Division rejects your claim. At that point, you essentially have two main options: make a pre-removal risk assessment application or seek judicial review.
The objective of a judicial review is to convince a judge that the Refugee Protection Division’s rejection of your claim was either unreasonable or incorrect in law. Applicants cannot introduce new evidence, and are limited to the evidence that was before the Refugee Protection Division Member that heard your case.
In this post, I outline some possible grounds that you may use to successfully obtain a judicial review. While I strongly recommend that you hire a lawyer to conduct your judicial review, I hope that this post will provide you with some initial ideas to discuss with your counsel.
Did the RPD misapply credibility during the section 97 analysis?
Under section 96 of IRPA, a claimant must establish the existence of a well-founded fear of persecution tied to a 1951 Convention ground. However, under section 97 of IRPA, a claimant must show on a balance of probabilities that removal from Canada would subject them personally to specified dangers and risks.
The evidence necessary to establish a refugee claim under section 96 of the Act is different from that required to establish a claim under section 97 of the Act. Section 97 requires that the Board consider the generally known country conditions of the claimant’s country of origin. The Board is required to analyze how these conditions might establish a section 97 claim. It is a wholly objective analysis, and must be evaluated in light of all relevant considerations and with a view to the country’s human rights record.
A negative credibility determination in respect of a refugee claim under section 96 is not necessarily dispositive of the consideration under section 97.
» Read more about: Judicial Review of Refugee Decisions »
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