Category: Judicial Reviews

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
East
Central
West
Total

#
%
#
%
#
%

Removal Order
1,351
43
2,163
34
570
24
4,084

Sponsorship 
1,446
46
3,453
55
1,500
64
6,399

Residency Appeal
336
11
713
11
270
11
1319

Minister Appeals
10
0.3
4
0
12
0.5
26

Total
3,143

6,333

2,352

11,828  » Read more about: Current Immigration Appeal Division Inventory  »

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:

1. There is a serious issue to be tried;
2. There is a risk of irreparable harm; and
3. 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  »

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  »

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 about: Considering the Evidence in its Entirety  »

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  »