Morley Law Office

Canadian Immigration Lawyer Kingston

Currently Viewing Posts Tagged best interests of the child

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.

The Art of the Advocate

AMERICAN KEVIN STORDOCK DISCOVERED, to his chagrin, that the materials he provided in support of his immigration application were insufficient to make the case that he should be allowed to remain with his family in Canada.  There was simply not enough evidence to support his request for the extension of his temporary resident permit, and so it was refused.  As a consequence, he is separated from his spouse and daughter.

The definition of “evidence”, according to, is:

  1. that which tends to prove or disprove something; ground for belief; proof.
  2. something that makes plain or clear; an indication or sign: His flushed look was visible evidence of his fever.
  3. Law. data presented to a court or jury in proof of the facts in issue and which may include the testimony of witnesses, records, documents, or objects.

Evidence is what lawyers work with every day.  We identify it, accumulate it, assist to generate it, analyze it, and connect it to legal principles.

As lawyers, we know that, as Thoreau said, “Some circumstantial evidence is very strong, as when you find a trout in the milk”, but that other circumstantial evidence tends to undermine the point we are making, or to be irrelevant to it altogether.  We know that evidence from some sources is more credible than evidence from other sources, that critical evidence is strengthened when it is corroborated, and that there must be at least enough evidence tendered to satisfy the burden of proof or the case will fail.

The failure of Mr. Stordock’s application is an illustration of these principles.  The story begins when he married a Canadian and fathered a child with her.  As he had a criminal record in the United States, he was inadmissible to Canada, and was only granted permission to enter after applying for a Temporary Resident Permit, which excused his inadmissibility, for the purpose of visiting his family for only one week.  However, once in Canada, Mr. Stordock determined he would not leave, but would apply to extend his Permit.  His application to remain here was refused by the immigration authorities.

Upon a request for the Federal Court to review the refusal, Mr. Stordock alleged that the decision-maker did not consider the evidence he had tendered nor the best interests of his child.  Mr. Justice Hughes disagreed.  He noted that “Temporary Resident Permits are highly discretionary permits”, and that “An Applicant is required to demonstrate “compelling reasons” why such a Permit should be granted”.

Key to the Court’s decision was the “scant information provided by the Applicant”, which it was clear did not meet the “compelling reasons” standard.  As respects the needs of Mr. Storlock’s daughter, Mr. Justice Hughes stated that “Even if the Officer were obliged to consider the best interests of the child, there is nothing in the record that could reasonably enable the Officer to do so.”  In other words, the evidence before the decision-maker was inadequate to make the case.

In my view, nineteenth-century British novelist George Eliot was right when she said “Blessed in the man who, having nothing to say, abstains from giving wordy evidence of the fact”.  Nothing could be clearer than the fact that too many of us, particularly we lawyers, say too much too often.  However bothersome this may be, Mr. Storlock’s case reminds us that it is clear that we must be sure to say enough to satisfy the onus of proof.  Knowing when we have done so is the art of the advocate.