Asylum seekers fleeing U.S. may find cold comfort in Canada’s courts

2017/04/29 Leave a comment

Useful article on how the system works:

Migrants who applied for asylum in the United States but then fled north, fearing they would be swept up in President Donald Trump’s immigration crackdown, may have miscalculated in viewing Canada as a safe haven.

That is because their time in the United States could count against them when they apply for asylum in Canada, according to a Reuters review of Canadian federal court rulings on asylum seekers and interviews with refugee lawyers.

In 2016, 160 asylum cases came to the federal courts after being rejected by refugee tribunals. Of those, 33 had been rejected in part because the applicants had spent time in the United States, the Reuters review found.

Lawyers said there could be many more such cases among the thousands of applicants who were rejected by the tribunals in the same period but did not appeal to the federal courts.

The 2016 court rulings underscore the potentially precarious legal situation now facing many of the nearly 2,000 people who have crossed illegally into Canada since January.

Most of those border crossers had been living legally in the United States, including people awaiting the outcome of U.S. asylum applications, according to Canadian and U.S. government officials and Reuters interviews with dozens of migrants.

Trump’s tough talk on illegal immigration, however, spurred them northward to Canada, whose government they viewed as more welcoming to migrants. There, they have begun applying for asylum, citing continued fears of persecution or violence in their homelands, including Somalia and Eritrea.

But Canadian refugee tribunals are wary of “asylum-shopping” and look askance at people coming from one of the world’s richest countries to file claims, the refugee lawyers said.

“Abandoning a claim in the United States or coming to Canada after a negative decision in the United States, or failing to claim and remaining in the States for a long period of time — those are all big negatives. Big, big negatives,” said Toronto-based legal aid lawyer Anthony Navaneelan, who is representing applicants who came to Canada from the United States in recent months.

The Canadian government has not given a precise figure on how many of the border crossers were asylum seekers in the United States.

But it appears their fears may have been misplaced. Trump’s attorney general, Jeff Sessions, has said that anyone in the United States illegally is subject to deportation, but there is no evidence that asylum seekers with pending cases are considered illegal under the new administration.

‘Lack of seriousness’

The asylum seekers will make their cases before Canada’s refugee tribunals, which rejected 5,000 cases last year.

The tribunals’ decisions are not made public, so the reasons are not known. An Immigration and Refugee Board spokeswoman confirmed, however, that an applicant’s time in the United States can be a factor in a tribunal’s decision.

Rejected applicants can appeal to Canada’s federal courts, whose rulings are published. The federal courts upheld 19 of the 33 tribunal rejections they heard last year and recommended fresh tribunal hearings for the other 14 cases.

The judges believed those claimants had a good explanation for having been in the United States first. The outcomes of the new tribunal hearings are not known.

The federal court handles only a small portion of all applications rejected by the refugee tribunals. But overall, applicants who have spent time in the United States have a higher chance of being rejected, said multiple immigration lawyers, including two former refugee tribunal counsel, interviewed by Reuters.

Source: Asylum seekers fleeing U.S. may find cold comfort in Canada’s courts – Manitoba – CBC News

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Immigration program for parents ‘discriminatory,’ Federal Court of Appeal rules

2015/02/07 Leave a comment

42 days vs 37 months:

In 2010, Attaran complained to the Canadian Human Rights Commission, claiming that the program discriminated against parents and grandparents by delaying the processing of their applications.

At the time of his complaint, it took immigration 42 days to screen the sponsors of spouses and children but the same screening took 37 months for those who wanted to bring their parents and grandparents to Canada.

The commission, however, dismissed his complaint, a decision later upheld by a federal judge.

In a ruling released Wednesday, the Federal Court of Appeal said the decision by the human rights commission to dismiss the complaint was unreasonable.

It overturned the lower court decision that there was a “bona fide” justification for the differential treatment. The court referred Attaran’s case back to human rights commission for reconsideration.

“The explanations provided by CIC (Citizenship and Immigration Canada) confirm that it was differentiating adversely based on family status by treating sponsorship applications for parents more slowly than sponsorship applications for spouses and children,” wrote Justice Wyman W. Webb on behalf of the three-member panel. “As a result, CIC was carrying on a discriminatory practice.”

In dismissing Attaran’s complaint, the human rights watchdog had said it did not appear immigration officials treated the complainant in an “adverse differential manner based on age.” It also concluded that the delays do not deprive parents and grandparents the access to permanent residency.

“There is no reference to undue hardship . . . in the decision of the (human rights commission). There is a reference, though, to the justification being ministerial discretion and a general reference to challenges being imposed on ‘the resource allocation for’ CIC,” said the appeal court decision.

Immigration program for parents ‘discriminatory,’ Federal Court of Appeal rules | Toronto Star.

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Citizenship judge has jurisdiction to retest applicant – Lexology

2015/01/14 Leave a comment

For those interested, a recent judgement upholding the right of a citizenship judge to require an oral retest of the knowledge requirements. Got it right:

20     In my view, the Citizenship Judge had the jurisdiction to test the applicant’s knowledge of Canada at the oral hearing. The requirements set out in subsection 5(1) of the Citizenship Actare conjunctive: they must all be satisfied in order for the Citizenship Judge to recommend a grant of citizenship to the Minister: Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 719. Further, the statutory requirements are contemporaneous. The statute does not provide that it is sufficient that at one point in time the applicant had an adequate knowledge of Canada; rather, the statute requires that the applicant has an adequate knowledge of Canada:Huang v Canada (Minister of Citizenship and Immigration), 2013 FC 576 and Santos v Canada (Minister of Citizenship and Immigration), 2008 FC 205. Thus, citizenship judges enjoy “a wide measure of discretion” to determine, pursuant to section 14(1) of the Citizenship Act, “whether or not the person who made the application meets the requirements of this Act”, Santos at para 23.

21     This conclusion is also consistent with established jurisprudence. Chief Justice Paul S. Crampton in Huang held that a Citizenship Judge may test an applicant’s knowledge of Canada notwithstanding that the applicant previously passed a written test: Huang at para 35. Although the Citizenship Judge may re-test an applicant, fairness requires that, “at a minimum, applicants be re-tested where there is a valid reason to do so”: Santos at para 26. In this case, the Citizenship Judge had a valid reason to re-test.

22     In this case, the Citizenship Judge had more than ample reason to administer a retest. The answers to the questionnaire provided more than sufficient basis for the decision to retest. The applicant had been absent from Canada for 134 days during the relevant period, and met the residency requirement by a mere 9 days. Her husband had never lived in Canada and lost his permanent residency status in 2012. Curiously, although the citizenship test was conducted on September 22, 2011, the residency questionnaire completed by the applicant, and declared to be true, indicated that on September 17, 2011, the applicant was in Shanghai. Further, in part 11 of the questionnaire eliciting absences from Canada the reason “vacation of 321 days” was noted. This alone was sufficient to trigger a re-examination. An absence from Canada for nearly a full year is not a vacation. The Citizenship Judge concluded:

“You have not lived in Canada since the day of your application for citizenship on July 5, 2010, more than 31/ 2 years ago, and since then you have only visited Canada for less than six weeks in total. Accordingly, a genuine concern arises that you have lost touch with Canada, its institutions, its people, its values and traditions. In order to find that you have met the knowledge requirement of the Act, I must be satisfied that you have preserved this basic understanding of Canada.”

Citizenship judge has jurisdiction to retest applicant – Lexology.

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