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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Without adoption having occurred in Pakistan, there can be no adoption in this case

Canadian citizen residing in Pakistan obtained guardianship of two year old Pakistani girl who had been abandoned. Application for citizenship was made for child. Canadian citizen contended that her guardianship of child was equivalent of full adoption and therefore satisfied requirement of s. 5.1(1)(c) of Citizenship Act (Can.) (CA). Minister’s delegate concluded that guardianship declared in Pakistan did not create permanent relationship of parent and child and did not constitute adoption. Application was denied and applicants applied for judicial review. Application dismissed. Interpretation of word “adoption” in s. 5.1 of CA did not accord with guardianship order issued in Pakistan on basis of Guardians and Wards Act, 1890, which ostensibly was used in this case. Only condition under s. 5.1(1)(c) of CA is that there be adoption under laws of country of residence of both applicants, i.e. Pakistan. Not only is there uncontroverted evidence that adoption does not exist in Pakistan, but Act under which order was presented as equivalent to adoption does not allow even one hint that guardianship might be close substitute to adoption, as it is understood in our law. Guardians and Wards Act, 1890 provides for, at best, what we would call foster care. Pakistani Court order confirmed that no adoption could have taken place in Pakistan. Without adoption having occurred in Pakistan, there can be no adoption in this case.
Mashooqullah v. Canada (Minister of Citizenship and Immigration) (Oct. 16, 2014, F.C., Yvan Roy J., File No. T-1929-13) 246 A.C.W.S. (3d) 35.



Citizen tried to use fake passport to aid his sister in entering Canada illegally

Canadian citizen originally from Sri Lanka was employed as flight attendant. Citizen’s sister in Sri Lanka called citizen saying that she was running from police there and needed his help. Citizen flew to Malaysia where he learned sister had fake Canadian passport. Citizen met sister in Laos and flew with her to Tokyo. When sister attempted to get boarding pass in Tokyo to fly to Canada, ticket agent reported suspicious passport to officials and passport was confirmed to be fake. Sister was deported from Japan to Sri Lanka. Director of Investigations Division Passport Integrity Branch found that citizen committed indictable offence outside of Canada by facilitating or aiding entry of his sister without proper documentation. Director revoked citizen’s passport for three year period pursuant to s. 10(2)(b) of Canadian Passport Order. Director did not identify exact section number in reasons but did state what offence was and facts used when Director found citizen had committed offence. Citizen applied for judicial review, contending that decision was not reasonable as reasons were vague and specific offence that he was found to have committed was not identified by section number in reasons and as result until judicial review he did not know exact offence that he was found to have committed. Application dismissed. There was no breach of principles of natural justice as citizen was given opportunity to respond to all facts gathered in investigation, and he did respond. Director considered citizen’s submissions before decision was made. There was no disagreement citizen tried to use fake passport to aid his sister in entering Canada illegally. It would have been preferable if actual number of section had been used by Director but it was not fatal in this case.
De Hoedt v. Canada (Minister of Citizenship and Immigration) (Aug. 29, 2014, F.C., Glennys L. McVeigh J., File No. T-1859-13) 245 A.C.W.S. (3d) 911.

Administrative Law


Fact that passports issued to applicant not determinative of citizenship

Applicant was born in Canada in October 1989 to parents who had come to Canada in 1985 to work as domestic helpers to Indian High Commissioner to Canada. Parents’ employment with High Commission terminated in 1989 but exact date was unclear. Applicant had Ontario birth certificate and had been issued two Canadian passports on strength of Ontario birth certificate. In December 2010 applicant was sentenced to three years in prison for weapons trafficking and cocaine importation. While in prison, Citizenship and Immigration Canada determined that despite his Canadian passport, applicant had never been Canadian citizen. Admissibility report was prepared and applicant was declared inadmissible on basis of serious criminality pursuant to s. 4 of Immigration and Refugee Protection Act (Can.). IRB Member was not satisfied that applicant was Canadian citizen and issued deportation order against him. Decision was upheld on judicial review. Applicant applied for declaration of citizenship. Issue whether foreign national’s parents were on applicant’s birthdate of Oct. 17, 1989, employees in service of diplomatic officer in accordance with s 3(2)(b) of Citizenship Act (Can.). Application dismissed. This declaration proceeding was collateral attack on IRB decision and “end run” on decision on judicial review. Issue of citizenship was central to those decisions, facts pleaded were same and evidence tendered was similar to this declaration proceeding. Issue of citizenship was dealt with and court ought not to revisit matter under subsequent but parallel proceeding. Evidence did not justify relief sought as applicant’s case was significantly undermined by documentary evidence and internal inconsistency which indicated parents worked at High Commission until December 1989 and included applicant on their permanent residence application in 1992, which would have been inconsistent with applicant having citizenship status. Fact that passports had been issued to applicant not determinative of citizenship.
Budlakoti v. Canada (Minister of Citizenship and Immigration) (Sep. 9, 2014, F.C., Michael L. Phelan J., File No. T-1564-13) 245 A.C.W.S. (3d) 772.



Public interest groups satisfied procedural requirements for intervention

Refugee claimants were Muslim citizens of Kosovo who came to Canada after entering United States. Refugee claimants unsuccessfully applied for refugee protection. Immigration and Refugee Board’s Refugee Protection Division (RPD) relied on lack of asylum claim in United States and insufficient evidence. Refugee claimants unsuccessfully appealed to board’s Refugee Appeal Division (RAD), which applied reasonableness standard of review. Refugee claimants commenced application for judicial review. Public interest groups brought motion for intervener status. Motion granted. This was apparently first case in which appellate function of RAD was focus. Given nature of case, it was apparent that issue of role and function of RAD transcended parties and particular facts of this case. Public interest groups were well established organizations dedicated to advocating on behalf of refugees. Public interest groups satisfied procedural requirements for intervention. Public interest groups, their clients, and their potential clients all had genuine interest in standard of review issue in this judicial review. Public interest groups provided different insight and perspective from that of refugee claimants. Allowing public interest groups to intervene was in interests of justice because issues in this judicial review were of potential precedential value.
Huruglica v. Canada (Minister of Citizenship and Immigration) (Aug. 22, 2014, F.C., Michael L. Phelan J., File No. IMM-6362-13) 245 A.C.W.S. (3d) 646.

Administrative Law


Switching of test once condition precedent met yielded breach of procedural fairness

Applicant was permanent resident. Applicant was abroad for vast majority of time on exchange program in Germany as part of her degree from university. Remainder of time abroad was spent visiting family in China. Citizenship Judge determined applicant did not accumulate requisite number of days of residence required and denied applicant’s citizenship application. Applicant appealed and matter was sent back for redetermination. Second judge advised applicant that if he found she was in Canada for 938 days she would receive positive decision. Judge found applicant was not in Canada for 1095 days. According to written decision and evidence applicant spent 938 days in Canada. Judge declined to make favourable recommendation for discretionary grant of citizenship. Applicant sought judicial review. Application granted. Switching of test once condition precedent was met resulted in breach of applicant’s legitimate expectation and yielded breach of procedural fairness. Applying differed citizenship test than that which was promised at hearing, when such decision was discretionary would not reach high threshold of bad faith. Applicant understood which test would be applied and governed herself accordingly.
Qin v. Canada (Minister of Citizenship and Immigration) (Sep. 10, 2014, F.C., Alan Diner J., File No. T-290-14) 245 A.C.W.S. (3d) 521.



Only evidence of danger to applicant was speculative, remote, and unsubstantiated

Applicant was Hungarian citizen who was victim of large human trafficking ring in Canada. His statement was provided as evidence to support charges brought in Canada against Hungarian organized crime group who were involved with trafficking in human beings for Hungary. Applicant filed claim for protection. He feared that if he returned to Hungary, he would be harmed by Roma he implicated in crimes in Canada or by their family members or other members of their criminal organization. Refugee protection division of Immigration and Refugee Board rejected application on ground that applicant had not rebutted presumption of state of protection and that viable internal flight alternative existed for applicant in Hungary. Applicant applied for judicial review of decision. Application dismissed. Board’s decision was reasonable and constituted acceptable outcome in light of evidence on record and applicable legal principles. Board fully considered totality of evidence, including effectiveness of measures taken by Hungary. Board’s conclusion with regards to internal flight alternative in Hungary was also reasonable. Board indicated that only evidence of danger to applicant was speculative, remote, and unsubstantiated. If applicant entered witness protection program, he could benefit from such measures as personal protection, change of identity, and change of residence.
Cserkuti v. Canada (Minister of Citizenship and Immigration) (Oct. 8, 2014, F.C., Luc Martineau J., File No. IMM-4103-13) 245 A.C.W.S. (3d) 398.



Removal officer not required to undertake substantive review of children’s best interests

Applicant and her three children, aged 20 to 24, were citizens of Mexico. Applicant left Mexico allegedly to flee threatening ex-husband and came to Canada in 2007. In June 2013, applicant married Canadian citizen with two children, aged 9 and 11. Applications for pre-removal risk assessment were dismissed in September 2013. Applicant alleged being primary caregiver to husband’s children. Removal order was issued. Applicants applied for stay of removal. Removal officer refused to grant stay. Applicant applied for judicial review of agent’s decision. Application dismissed. Standard of review of removal officer’s decision was reasonableness. Reviewing court owed deference to removal officer. Removal officer noted that applicant did not cite children’s best interest until two weeks prior to removal date, that applicant had only recently married children’s father, and that she was not their biological mother. Removal officer was not required to undertake substantive review of children’s best interests. Removal officer had limited discretion. Youth protection agency report indicated that children’s security and development were not compromised despite biological mother’s issues. Evidence did not support applicant’s premise that children would be in precarious situation if she left. Removal officer’s decision was reasonable.
Vargas Ezquivel c. Canada (Ministre de la Sécurité publique et de la Protection civile) (Oct. 20, 2014, F.C., Michel M.J. Shore J., File No. IMM-1052-14) 245 A.C.W.S. (3d) 392.
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