ႈImmigration ဆိုင္ရာမ်ား

To believe, or not to believe?

In this week’s column…that is the question.

Michelle Ferguson was a permanent resident who was convicted in Canada of drug trafficking and then ordered deported to Jamaica after spending about 20 years here.
Prior to being scheduled for removal, she applied to a pre-removal risk assessment officer for protection on the grounds that she would face harm back home on account of her sexual orientation.
The officer agreed, without reservation, that lesbians in Jamaica are at risk of “severe physical abuse” on account of their sexual orientation. However, while the officer never said that Ferguson was lying, the officer nonetheless found that there was “insufficient evidence” to support her claim that she was, in fact, a lesbian.
Accordingly, the officer rejected her claim for protection which then allowed her removal to be scheduled.
What evidence did Ferguson offer to prove that she was a lesbian? A letter from her counsel which merely referred to her as such.
The federal court reviewed this case last month and upheld the officer’s decision.
The court held that although a statement of fact made by counsel on their client’s behalf can sometimes constitute evidence, in these circumstances, it could not be given any more or less weight than if it were given in an unsworn statement by the client.
The court said that it would have given more weight to the assertion if the client’s statement was contained in a sworn affidavit. Even more weight might have been afforded if it were corroborated by a lesbian partner or by public statements.
It is for this reason that I encourage young lawyers to include, whenever possible, all of their clients’ statements of fact in an affidavit rather than in the lawyer’s submissions. They should also, whenever possible, include as much corroborating evidence as possible.
This advice also applies in other hard-to-document situations i.e. those involving sexual assault, unreported spousal abuse, anonymous threats, etc.
The Federal Court will not receive any new or better evidence from the applicant to prove a case at the judicial review stage even if it would possibly save the applicant from what an officer acknowledges might amount to “severe physical abuse.” Therefore, all of the available evidence should be included at the time of the application since “later” will be too late.
The court in Ferguson’s case concluded as follows: “Based on the treatment homosexuals receive in Jamaica…it is truly unfortunate if the Applicant is lesbian that she will be returned to Jamaica. However, every applicant … and their counsel must take responsibility to ensure that all of the relevant evidence is before the officer and, of equal importance, that they present the best evidence in support of the application. Where that is not done, the consequences of a failed application rest with the Applicant and counsel.”
Cold perhaps, but that is how the immigration game is played.

wow.. that's a lot of things to read.. i will give my time to read those. thanks for the info.

The title of a recent Globe and Mail editorial, “Yes, America is a safe haven” (July 2/08) suggests that our Federal Court of Appeal declared the United States to be a safe place in which to make a refugee claim.
In fact, our court reached no such conclusion.
Now, why should a Canadian court concern itself with the adequacy of the American refugee system? Because Canada is allowing the U.S. to decide the fates of refugee claimants who Canada is otherwise committed to protect in Canada, under Canadian law.
By signing the 1951 Convention Relating to the Status of Refugees, Canada undertook to consider the refugee claims of anyone who reached its shores. In December 2004, Canada broke this promise when it entered into an agreement with the U.S. This agreement rendered a whole class of refugee claimants ineligible for our protection only by virtue of the fact that they were physically in the United States.
In this agreement, Canada declared that the U.S. respected minimal international norms as they relate to the processing of refugee claims. Accordingly, since refugee claimants in the U.S. were considered to be in a “safe third country,” with certain exceptions, they were no longer eligible for our protection. Such claimants were considered ineligible for a refugee hearing in Canada -- regardless of whether or not they made a refugee claim in the U.S., wanted to make a claim in the U.S., or were denied refugee status in the U.S.
The Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International joined John Doe, an unnamed refugee claimant in the U.S. to challenge the legality of the agreement. They presented expert evidence to our Federal Court to prove that the U.S. does not, in fact, meet minimal international standards when it assesses refugee claims.
In November, 2007, Mr. Justice Michael Phelan agreed with these litigants and struck down the agreement as unconstitutional. The effect of the decision was later stayed pending the inevitable appeal.
On June 27th, the Federal Court of Appeal struck down Justice Phelan’s decision, citing a number of technical errors in how he handled the case.
The FCA concluded that:
1. The actual promulgation of a regulation by cabinet is not a decision that can be reviewed. Although, cabinet’s decision that the U.S. is safe is reviewable, the applicants were late in appealing that decision.
2. Justice Phelan was wrong in concluding that cabinet had to find actual compliance by the U.S. with international norms before it could declare the U.S. “safe." The FCA said that as long as cabinet considered certain factors set out in the regulations, it was irrelevant whether or not there was actual compliance with international norms.
3. The applicants should have sought an order compelling our government to conduct statutorily required reviews of American refugee practices rather than to seek a judicial review of the failure to conduct such reviews.
4. The trial judge was wrong in entertaining a constitutional argument on the assumption that John Doe, the unnamed litigant in the proceeding, would have been turned back at the Canadian border if he had actually made a refugee claim there. Instead, the judge should have heard the case only if Doe had actually been turned back.
In spite of these perceived shortcomings in Phelan’s decision, nowhere in the Court of Appeal’s decision is anything that comes close to the conclusion that the American refugee system complies with minimal international standards. The court noted that some of the evidence presented by the applicants was defective in that it didn’t exist at the time that cabinet declared the U.S. safe. However, the court never adopted any factual conclusions contradicting this evidence.
It is clear that allowing the Americans to assess the refugee claims of those who would have otherwise sought asylum here places upon us an uncomfortable obligation to supervise the performance of our greatest ally and trading partner.
Nonetheless, that is the position we have placed ourselves into by entering into this unwise agreement.
Perhaps, for the sake of good relations with the U.S., Canada’s national newspaper, and indeed our government, may prefer to interpret the FCA’s decision as a declaration that “Yes, America is a safe haven”. But in reality the Federal Court Appeal said no such thing. Instead, it has merely ensured the future involvement of the Supreme Court of Canada.
If the refugee advocates are unsuccessful there, no doubt they will re-litigate this case afresh keeping a sharp eye on all of the technical hoops that the FCA is placing in their path.

QI was reading the sponsorship guide and found the following statement: “Dependent children must meet the above requirements both on the day the Case Processing Centre in Mississauga (CPC-M) receives a complete application for a permanent resident visa and, without taking into account whe­ther they have attained 22 years of age, on the day a visa is issued to them.”Does this mean that a dependent child must still be under 22 when the visa is issued? I find this confusing. Please clarify.A In the real world it is pretty easy to figure out if someone is “over aged.” Not so in the immigration world, where there are four types of “dependent children.”>> Children under 22 years and not married or in a common law relationship: The child must meet both these conditions at the time the sponsorship application is received at CPC — Mississauga or, in the case of refugee and economic class cases, when the visa post accepts your documents as “an application.” If the visa post feels that the application is not submitted properly, it will send it back to you and the child will only qualify if they meet these conditions when the application is properly re-submitted. The child still qualifies if they are over 22 when the visa is issued but won’t qualify if they are married or in a common law relationship when their visa is issued or when they arrive in Canada. A dependent child who is divorced, widowed, or who is no longer in a common law relationship at the time of visa issuance can still qualify.>> Children over 22 and studying: The child in this situation must, since prior to turning 22, be continuously enrolled and in attendance as a full-time student in a government-accredited post-secondary institution and must depend substantially on the financial support of a parent right up until the time a visa is issued to them. >> Children married or in a common law relationship before the age of 22: The child in this situation must, since the time they were a spouse, be continuously enrolled and in attendance as a full-time student in a government-accredited post-secondary institution and must depend substantially on the financial support of a parent right up until the time a visa is issued to them. It is OK if at that time they are over 22.>> Children over 22 with a medical condition: Children in this situation must be unable to provide for themselves due to a medical condition since prior to turning 22 and must depend substantially on the financial support of a parent right up until visa issuance.