Morley Law Office

Canadian Immigration Lawyer Kingston

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What’s Sauce for the Goose is not Sauce for the Gosling

WHEN THE IMMIGRATION AND REFUGEE BOARD considered the refugee claim of Jkwon Jaheim Corneille and his mother Jeannette Corneille, Jkwon was only eight years old.  During the hearing his mother maintained that she and Jkwon were persecuted in their native St. Lucia because Jeannette is a lesbian, and thus that she and he should be allowed to remain in Canada where they would be protected from such persecution.  The claim of both mother and son were heard together.

Homosexuality is illegal for males in Saint Lucia.  The island nation is the only UN member in the Americas to formally oppose the UN declaration on sexual orientation and gender identity, and it maintains on the books some antiquated and discriminatory laws respecting same sex relationships.  Still homosexuality is not illegal for females in St. Lucia.

Jkwon’s mother acted as his designated representative at the hearing, as he was a minor who was deemed to be unable to appreciate the nature of the proceedings, but both she and Jkwon testified.  In his testimony Jkwon spoke about the violent victimization of his mother, the gibes and derision he had experienced at school, and the nightmares he had as a result of their treatment.  The Board was also presented with an independent letter describing Jkwon having been beaten at school.

The Board disbelieved Jeannette’s testimony.  Jkwon’s was discounted because of his age.  The value of the letter was determined to be minimal because reference had not been made to it in the written outline of Jeannette’s claim filed when refugee status was first requested.  In the circumstances, the claim was rejected.

In reviewing the Board’s decision, however, Federal Court Justice O’Reilly found that the Board had failed to consider Jkwon’s testimony independently of that of his mother.  While what she had said had been rejected as untrue, the Court stated that that did not mean that Jkwon’s testimony was untrue.  The Court described St. Lucia as an “overtly homophobic country”.  It concluded that despite doubts about his mother’s credibility, Jkwon’s testimony might have supported a conclusion that he could be persecuted if it had been assessed properly, independent of his mother’s.

In the end the refusal of Jkwon’s claim was set aside and another panel of the Board was ordered to reconsider his claim.  The decision reminds us that, where multiple refugee claims are heard together, each claim must be assessed independently.  It also reminds us that, as difficult as it may be for them at the time, it is valuable for minors to testify as to their own experiences at their refugee hearings, and to file as much corroborating documentation as possible.

You can find the decision in the Corneille case here.

Abandonment Issues

THE GRANT OF REFUGEE STATUS protects its subject from being returned to a country in which persecution might be experienced.  In many cases, the determination of whether or not status should be granted can be a matter of life and death.  As Canada’s Minister of Citizenship and Immigration has implicitly acknowledged in justifying his reform of refugee procedures, it is important that the process of granting refugee status generate accurate results so that genuine refugees will be protected.

Over the years many natives of Sri Lanka have claimed refugee status in Canada, as that country has been engaged in a brutal decades-long civil war that has generally pitted the majority Sinhalese community against the minority Tamil community, and vice versa.  Thousands have been killed in the fighting, and there have been many atrocities and much torture.

Thadchanamoorthy Mayilvahanam is a Sri Lankan of Tamil ethnicity.  He came to Canada and made a refugee claim in 2010, and his case was scheduled to be heard in the fall of 2011.  Unfortunately, the Board was unable to hear Mr. Mayilvahanam’s case on the date it had set for the hearing, and so it was rescheduled.  Ultimately the lawyer for Mr. Mayilvahanam was unavailable on the date set and so, once again, the hearing had to be rescheduled.  On the third date, Mr. Mayilvahanam’s counsel had a scheduling conflict.  He chose to address this problem by sending his client to the hearing to request an adjournment. 

As requested by his lawyer, Mr. Mayilvahanam attended at the premises of the Immigration and Refugee Board and made the request for another adjournment of the hearing.  The Board, however, was unreceptive.  During an exchange about what should be done about the problem, Mr. Mayilvahanam stated and then confirmed that he could not proceed on his own, without his lawyer.  Having warned him that it might do so, the Board then deemed the claim abandoned, as the case had been ongoing for 18 months.  Mr. Mayilvahanam had lost his case before it was even heard.

To Mr. Mayilvahanam this did not seem fair, and so he asked the Federal Court (Trial Division) to have a look at the decision of the Board.  In rendering his decision, Mr. Justice Phelan reviewed the law, indicating that “the test for abandonment is showing that an applicant has no interest in proceeding with his claim” and that “The evidence here is that the Applicant wished to proceed but was left on his own by counsel.”  He continued: “The Member did not take into account all the relevant facts but merely focused on the length of time that the application had been in the IRB system”, and concluded “The IRB’s decision was unfair and unreasonable, narrow in its reasoning and devoid of fairness. The only abandonment was by counsel.”

As a result of the Court’s ruling, Mr. Mayilvahanam got the opportunity to have his case re-instated so that it could be heard properly, presumably with different counsel.  He was fortunate in this, as many, many cases are deemed abandoned every year without review by the Federal Court, often with tragic results.  Don’t let it happen to you!

To read this case, the citation for which is Mayilvahanam v. Canada (Citizenship and Immigration), 2013 FC 136 (2013), click here.

Criminality and Refugee Claims

FEW WILL DENY that it is generally best to avoid criminal trouble.  Engaging in criminality risks not only a loss of liberty, but also the possibility that in future doors of opportunity will be closed, possibly for good.  A criminal breach of trust, for instance, may effectively put an end to the pursuit of some careers.  If convicted of domestic violence, one may lose custody of or even access to one’s children.    If one is convicted of impaired driving, there will be a driver’s license suspension, with a possible loss of employment, if the job requires a license.

Most of us can agree that we are responsible for our wilful actions, and that some adverse consequences of criminal behaviour are usually appropriate.  However, we may differ respecting how long the consequences should be borne, and the extent to which they should compromise an offender’s future.  These are more difficult questions.  What if the offender, for instance, was convicted of violent crimes: should he be forever denied protection from persecution because of these convictions?  That is the issue that was raised in the case of Mr.Luis Alberto Hernandez Febles.

Mr. Hernandez Febles left his native Cuba in 1980, and settled in the United States.  There he was twice convicted of the crime of assault with a deadly weapon.  Alcohol abuse was a key factor in his offending.  After 1993, however, he committed no further offences and steadfastly maintained sobriety.  His remorsefulness was acknowledged.  Still, because he had been convicted of the assaults he eventually lost his immigration status in the United States, and was required to leave.  He came to Canada.

Here he applied for refugee status based on the persecution he had experienced in Cuba, which had been accepted as fact in the United States.  He disclosed that he was convicted of crimes in the United States.  He was found to be ineligible to make a refugee claim in Canada because of his crimes.  Here is the question that Canadian justice had to answer: in determining whether or not Mr. Hernandez Febles should be given refugee protection, should it have been considered that 15 offence-free years had passed, whether or not he was currently a danger to the public, or whether he had been rehabilitated?

Mr. Justice Evans of the Federal Court of Appeal found that such considerations were irrelevant.  The tests for ineligibility and exclusion are simply not the same”, he wrote, and “The scheme of [the Immigration and Refugee Protection Act] suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly.”  The Court specifically rejected the notion that remorsefulness may be considered in determining whether exclusion from refugee protection is justified, even though there is provision for the possibility that this could happen in the handbook of the United Nations High Commission for Refugees.

The consequences of criminal convictions may be devastating in their scope and, it seems, can last a very, very long time.  Indeed, they may last forever.  Sometimes turning over a new leaf is simply not enough.

To read this case, the citation for which is Luis Alberto Hernandez Febles v. Canada (Minister of Citizenship and Immigration) 2012 FCA 324, click here

Irwin Cotler on Refugee Reforms

IRWIN COTLER is the Liberal Member of Parliament for the Quebec riding of Mount Royal, and a former federal Justice Minister and Attorney General. An expert on international and human rights law, Cotler was counsel to former prisoners of conscience Nelson Mandela, Jacobo Timmerman, and Natan Sharansky. Also, it was Cotler who introduced Bill C-554, known as “An Act to Protect Canadian Citizens Abroad”.
On November 29, 2010 Cotler addressed the House of Commons upon the deficiencies of the government’s proposed refugee reforms. His statements, which follow, highlight the problems with the proposals:

Mr. Speaker, I rise to speak in the matter of Bill C-49, whose formal title is “An act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act”. Indeed the stated intent of the legislation can perhaps best be found in the short title of the act, “Preventing Human Smugglers from Abusing Canada’s Immigration System Act”.

In particular, the bill reflects the government’s response to two ships full of Tamil migrants who landed on Canada’s shores in the past year. It reflects also the larger public concern over illegal immigration and false refugee claims and indeed the need, as the government and our colleagues on the opposite side have put it, to maintain public faith in the immigration and refugee system.

Accordingly, the bill includes harsh penalties for smugglers, which have garnered a good deal of media attention, and not surprisingly, because who can object to legislation that purports to get tough with human smuggling and to deal with such smuggling in the manner required for that purpose? However what is being ignored here is that the government, with co-operative consultation with and indeed the support of the opposition, just five months ago enacted a comprehensive reform of our immigration and refugee law precisely for the purposes of, among other things, combating illegal immigration, false refugee claims and declining, as it put it even then, public faith in the immigration and refugee law system.

This bill, however, while purporting to be the same in its purpose and effect, ends up undermining the very integrity and effectiveness of the legislation that the government itself enacted some five months ago, while inviting, on closer appreciation of the legislation, the very loss of credibility and public faith in our system that Bill C-49 purports to decry, but which Bill C-49 will in fact invite.

Indeed an appreciation of the pith and substance of this legislation, its essential character and effect, invites the characterization of the bill, as a group of refugee scholars has put it, as “the punishing refugees and evading our constitutional and international obligations act”. In a word, the bill does not so much punish smugglers as indeed it punishes asylum claimers.

What follows is a summary of concerns respecting this bill, concerns that, for example, are reflected in the commentaries of experts in refugee law, such as Peter Showler, a former chair of the Immigration and Refugee Board, who last week characterized the bill as “littered with charter violations”. Immigration and refugee law and human rights experts have decried the lack of balance between the sanctions against the smugglers and, in particular, the manner in which the asylum-seekers end up being targeted. The critique of a group of law professors from different law schools across this country characterized it as not only being in breach of our charter rights but also in breach of our standing obligations under international law, such as under the international refugee convention.

In effect, this bill amounts to gratuitous punishment of those seeking our protection, in effect a double victimization of those who have been initially victimized by smugglers exploiting them and then end up being victimized when they seek protection on our shores.

As well, the legislation reflects a lack of understanding of what it means to be a refugee escaping civil strife. The legislation says detention is necessary until the identity of the refugee can be confirmed, but for people who understand what it means to be refugees fleeing civil strife, with all that attends it, it ends up being a legislation that punishes people who are illegal arrivals. As one editorial put it, Albert Einstein would have been punished under this legislation.

This brings me now to a summary of the specific concerns and I will do so in an abbreviated fashion for reasons of time.

First, the bill would authorize detention with no independent review for a minimum of 12 months, in clear breach of both charter rights and related Supreme Court jurisprudence that such detention without review is patently illegal. Moreover, the government has the power to detain persons until their identity is established, as I mentioned, or, irrespective of time, under present legislation, be it legislation with respect to the protection of public security or legislation with respect to enforcement of our anti-terrorist laws and, as such, this particular and prospectively illegal provision is as well a gratuitous and unnecessary given our present laws.

Second, those who are granted refugee status are nonetheless denied the right to bring their family members to Canada for a period of five years. Again, arguably that is in breach of our international human rights and humanitarian obligations under the Convention on the Rights of the Child or international provisions respecting family unification.

Third, there is no right of appeal from the initial rejecting refugee decision, which would not only immunize error in our refugee system, but prejudice the rights of prospective asylum seekers.

Fourth, it would reduce medical benefits. Refugee claims already receive only the most basic of medical coverage, but this type of legislation would reduce that even further in respect of matters pertaining to the use of wheelchairs, canes, walkers and the like.

Fifth, the bill mandates that those coming to Canada as part of a smuggling event, as it is called, will not be permitted to apply for permanent residence for five years. This provides for different rules and standards for migrants smuggled on a ship compared to those who arrive illegally with forged documents by way of an airplane.

Finally, with respect to the overall purpose and effect of the bill, it might in this regard create two classes of refugees based on the means of arrival in Canada. The distinction and its drastic consequences offend foundational principles of international law, the Canadian Charter of Rights and Freedoms, as well as common sense and decency.

The majority of refugees and those involved in refugee law know only too well. As Peter Showler himself wrote just a short time ago:

The majority of refugees must resort to smuggling networks to escape the country of persecution and cross borders. Canadian and international laws have recognized this necessity and prohibit the prosecution of refugees for the violation of immigration regulations. Boat arrival, as opposed to individual arrival by land or air, does not mean that the refugee claims are more or less valid or that the passengers are a greater security threat: If anything, it is the opposite, since arrival by boat entails far closer scrutiny by the authorities. Boat arrival simply means that it was the only practical avenue of escape for refugees with no good options.

In summary, he says:

Government ministers have justified the punitive aspects of the bill by accusing boat refugees of “jumping the refugee queue” as opposed to “law abiding refugees” who wait their turn for resettlement. There is no refugee queue. There are approximately 13 million refugees scattered throughout the world, over half of them in godforsaken camps with few resources and less hope. Their average time of camp residence is 17 years;…

We should not be enacting legislation that ends up punishing the asylum seekers while not effectively sanctioning the smugglers themselves who exploit them.

Well said, Mr. Cotler!