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 »
Read more ›Although you should hire representation if you want to file an application for judicial review of an immigration decision, you should also understand the basics of judicial review.
Read more ›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.
Read more ›The doctrine of legitimate expectations is a procedural doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights.
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Does the Immigration Appeal Division have an obligation to determine the genuineness of a marriage on a de novo appeal from a removal order on the basis of a misrepresentation, when the genuineness of the marriage was the misrepresentation alleged in the subsection 44(1) report and was relevant to a determination by the IAD of whether the person concerned made the misrepresentation in issue before it?
This was the question before the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Peirovdinnabi, 2010 FCA 267. In answering it, the Court reflected on the nature of a de novo hearing.
The matter pertained to an individual whose application for permanent residence on humanitarian and compassionate grounds was granted, in part because of the applicant’s marriage at the time. The application was approved despite the fact that the applicant’s ex-spouse approached immigration authorities advising them that the marriage was a sham entered into solely for immigration purposes.
Shortly thereafter, the applicant applied to sponsor a spouse. This got the attention of immigration authorities, who made a s. 44(1) report to the effect that the applicant was inadmissible for having made a misrepresentation in his H&C application, and that the marriage was not genuine.
The Immigration Division found that the applicant failed to disclose key facts in his H&C application, and that he was therefore inadmissible. Having done so, the Immigration Division stated that it was not necessary to determine the genuineness of the marriage issue.
The Immigration Appeal Division overturned the Immigration Division’s finding that the applicant had failed to disclose key facts. It also stated that it would not consider the genuineness of the marriage because the Immigration Division had not found it necessary to so.
» Read more about: De Novo Jurisdiction and the IAD »
Read more ›The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
Read more ›On August 4, 2010, the Federal Court released its decision in Sayed v. Canada (Citizenship and Immigration), 2010 FC 796 (“Sayed“) The decision involved a discussion of many Pre-Removal Risk Assessment (“PRRA“) issues, including when a PRRA officer will be required to call a hearing.
The PRRA is based on the principle of non-refoulement, and provides that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment. Approved applications generally result in the same refugee protection afforded to persons whose refugee claims are approved by the Immigration and Refugee Board.
PRRA is generally carried out through a paper review process. However, officers have the discretion to hold an oral hearing in certain cases, as outlined in s. 167 of the Regulations. This section states that:
Hearing — prescribed factors
167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
In Sayed, Justice Zinn noted that in the context of PRRA applications following negative refugee determinations, the test of whether to hold an oral interview is that where the testimony of the applicant, if believed, would adequately address the determinative issues raised by the Board in rejecting the applicant’s refugee claim,
» Read more about: When Will a Hearing be Necessary at a PRRA Review »
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