Law Times

Law Times • September 16, 2013 vulnerable person from his counsel. Arrangements were made to obtain psychological assessment, which was filed with RPD. Psychologist concluded that applicant presented with symptoms consistent with diagnosis of schizophrenia (paranoid type) noted by bizarre delusions and disordered thinking and indicated that it would be inappropriate to ask applicant to give verbal testimony because severity of his symptoms made it impossible for him to give meaningful responses. Application for accommodation requested that right to give testimony before RPD be waived. RPD assistant deputy chairperson considered information submitted and concluded that applicant was vulnerable person as his ability to present his case was severely impaired. At outset of RPD hearing presiding member indicated that she was aware of psychologist's report and wished to ask applicant questions regarding several issues arising from his claim. Hearing proceeded without any apparent further consideration of whether applicant was capable of giving evidence. Applicant's testimony became progressively more bizarre and incoherent. Reasons for decision indicated at outset that Chairperson's Guidelines and Procedures with Respect to Vulnerable Persons Appearing before IRB were taken into consideration, however, there was no further reference to guidelines in decision or to applicant's bizarre ideation at hearing. Application allowed. It was obvious from transcript that applicant was not rational throughout course of hearing. Applicant was denied procedural fairness when it became apparent that he was unable to give coherent testimony about issues raised by his claim for refugee status and protection. Presiding member should have stopped hearing at that point and considered alternative procedures to determine claim. Member did not demonstrate in her analysis that applicant's mental state was taken into consideration in determining merits of claim and, in particular, of his explanations. M. (F.A.) v. Canada (Minister of Citizenship and Immigration) (May. 29, 2013, F.C., Richard G. Mosley J., File No. IMM-1052412) 228 A.C.W.S. (3d) 803. Applicant's former partner forced her to have sexual intercourse with police officers Application for judicial review of denial of refugee claim. Applicant was citizen of Saint Lucia who alleged fear of her former common law partner, and claimed refugee status by reason of membership in particular social group, namely, women subjected to domestic violence and sexual abuse. Applicant moved in with partner in 2009, and shortly afterward he became physically and sexually abusive Page 17 caselaw to her. Partner bought knife and wrote applicant's name on it and gave her miniature coffin with her picture in it. Applicant reported threats to police but they did nothing to help her. Applicant learned that some of partner's family members were in police force and some men partner had forced her to have sexual intercourse with were police officers. RPD found that it could not be assumed that whole Royal Saint Lucia Police Force ("RSLPF") was complicit and that although there may be some rogue elements at play, state protection would have been available to applicant had she taken reasonable steps to access it. Officer faulted applicant for not approaching higher police authorities. RPD considered documentary evidence on issue of domestic abuse and violence in Saint Lucia and noted that violence against women remained problem but that specific legislative scheme was adopted to address this problem in addition to non-governmental organizations put in place to help victims of domestic abuse. Therefore, RPD concluded that applicant had not taken sufficient steps to test protection available in Saint Lucia. RPD rejected applicant's claim on basis that state protection was available to her. Application allowed. Applicant's former partner forced her to have sexual intercourse with members of police force and partner had brother who was police officer and who advised her not to make complaint. In such circumstances, it was unreasonable for RPD to consider that applicant should have taken additional steps to seek protection without conducting proper analysis in light applicant's situation. RPD made it obligation in applicant's case to resort to higher authorities in RSLPF without considering her own state of mind and factual situation and this was unreasonable. Melius v. Canada (Minister of Citizenship and Immigration) (May. 28, 2013, F.C., Simon Noël J., File No. IMM-8499-12) 228 A.C.W.S. (3d) 809. SELECTION AND ADMISSION Use of language similar to job description not ground for dismissing reference letter This was application for judicial review of visa officer's decision. Applicant was citizen of Iran. He applied for visa based on experience as construction manager. Officer denied applicant's application for permanent residence under federal skilled workers class as construction manager. Officer denied application on basis of insufficient evidence that applicant had performed occupations specified in national occupation classification ("NOC") and Ministerial instructions. Only reason for officer's conclusion that applicant had insufficient evidence was that employer's letter closely paraphrased occupational descriptions of NOC and diminished its credibility. Application granted. Standard of review was reasonableness. It was unreasonable for officer to reject employer's letter. Fair review of employer's letter did not disclose type of mindless copying of NOC description that gave some basis for undermining weight to be given to evidence. Use of language in reference letters similar to job descriptions set out in NOC was not per se ground for dismissing reference letters. It was not surprising that employer's letter would closely resemble NOC, as that was information that government said was relevant. Officer's decision was unreasonable. Matter was referred to different visa officer. Ghannadi v. Canada (Minister of Citizenship and Immigration) (May. 17, 2013, F.C., Michael L. Phelan J., File No. IMM-713012) 228 A.C.W.S. (3d) 816. Visa officer need not give notice of unanticipated concerns prior to interview Application for judicial review of application for permanent resident visa under Federal Skilled Worker program. Applicant, aged 68, was citizen of United States, who was employed for number of years as software engineer in Canada. He lost his job in 2010 due to corporate restructuring and thereafter engaged in lengthy job search. Applicant applied for permanent resident visa under Federal Skilled Worker program. Officer determined that despite applicant's exceeding minimum number of points (being awarded 74 out of 100 when only 67 are required), substituted evaluation would be issued under s. 76(3) of Immigration and Refugee Protection Regulations (Can.). In rejecting application, officer concluded that because applicant had been unsuccessful in his 22-month job search he was not likely to be successful in becoming economically established in Canada. Applicant contended that officer's failure to warn him of concerns in advance of interview amounted to denial of procedural fairness. Applicant also contended that officers erred in their substituted evaluation by ignoring relevant evidence and by failing to conduct assessment in accordance with requirements of Regulations. Applicant contended that instead of focusing on required factors, officers incorrectly focused exclusively on fact that applicant had not obtained employment, which is not required under s. 76 of Regulations. Application dismissed. Visa officer need not give notice of unanticipated concerns prior to interview so long as concerns are raised during interview and applicant is given opportunity to address them. There was nothing improper in officer raising his concerns and possibility of substituted evaluation for first time www.lawtimesnews.com during interview of applicant. Applicant filed additional evidence with interviewing officer, subsequent to interview, that officer and his superior both considered prior to finalizing decision that substituted evaluation would be made under s. 76(3) of Regulations. It was not fact that applicant had no job that concerned officers. Rather, they were concerned that lengthy job search had yielded no result. Length of search logically leads to conclusion that applicant would be unlikely to ever find work or was unlikely to become economically self-sufficient. Kimball v. Canada (Minister of Citizenship and Immigration) (Apr. 29, 2013, F.C., Mary J.L. Gleason J., File No. IMM-825912) 228 A.C.W.S. (3d) 818. Parole REVOCATION Earlier decision did not trigger obligation to further question inmate about diabetes Inmate applied for judicial review of decision which upheld Parole Board's decision to revoke his parole. Inmate was 52 years old and began serving life sentence in 1988 for second degree murder committed while intoxicated. Inmate was released on full parole in 2001 and thereafter worked as longshoreman. Inmate's parole was suspended in 2001 when police responded to report that impaired driver stumbled into restaurant, and they found that inmate had just ordered beer even though his parole conditions precluded consumption of intoxicants. Inmate's parole had previously been suspended four times, all involving concern about consumption of alcohol. At hearing, inmate denied stumbling and could not explain odour of liquor on his breath, but did not refer to diabetes. Inmate's counsel advised board that he suffered from diabetes and that its symptoms could mirror intoxication, and indicated that inmate should have testified to that effect. Inmate merely acknowledged that he had diabetes and did not indicate that he had been experiencing problems with his blood sugar levels on day in question, and did not suggest that his diabetes explained or contributed to his behaviour. In decision following one of earlier suspensions, board concluded that diabetes was plausible alternative explanation for inmate's apparent intoxication. Inmate argued that after he stated that he had diabetes, board should have questioned him further about whether his blood sugar levels were fluctuating and whether this might have explained his symptoms. Application dismissed. Board's earlier finding that inmate provided plausible alternative explanation for how he presented to his parole officer was not conclusive and was without evidentiary support. Earlier decision did not trigger obligation on board to further question inmate about his diabetes. Gill v. Canada (Attorney General) (Jun. 7, 2013, F.C., Sandra J. Simpson J., File No. T-120-13) 107 W.C.B. (2d) 481. TAX COURT OF CANADA Taxation GOODS AND SERVICES TAX Public college may have credit against tax applied retroactively Appeal by registrant from assessment by Minister under Excise Tax Act (Can.). Registrant was public college. Registrant purchased three properties on which it paid GST. Registrant was entitled to partial rebate of GST under s. 259 of Act, but failed to report purchases and pay net amount due in timely manner. Registrant noted failure to pay and made late payment, claiming rebate. Minister assessed interest on purchases as of payment due date but credited rebates only as of date they were claimed, so that interest on GST payable was assessed rather than on net amount due for period between payment due date and date of actual payment. Appeal allowed. Section 280 of Act only imposed interest on after-rebate amount owing by registrant. Provisions governing transaction could be read literally to impose tax on gross GST, but this was not purposive or contextual approach. Effect of s. 296(2.1) of Act is that public college may have credit against tax applied retroactively so that no interest arises on full amount of GST prior to rebate, when three conditions are met, and s. 296(2.1)(b) simply presumes that college applying for rebate would have retroactive treatment. Wording of rebate provided in s. 259(3) and (5) supported conclusion that registrant was entitled to rebate. Absurdity would result if sections were interpreted differently so that college that did not apply for rebate would get retroactive treatment, while college that did apply for rebate would not. Allowing rebate where error was discovered by Canada Revenue Agency or late GST return was filed without claiming rebate, but not allowing rebate where late return claiming rebate was filed, was improper. Portion of s. 296(2.1)(b) requiring that no claim for rebate be made could not be ignored in circumstances where claim had not been made at time of reassessment resulting in same rebate. Humber College Institute of Technology & Advanced Learning v. R. (May. 7, 2013, T.C.C. [Informal Procedure], Campbell J. Miller J., File No. 2012-1721(GST)I) 228 A.C.W.S. (3d) 869. INCOME TAX Insufficient to tax taxpayer solely because person under audit

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