Law Times

Page 14 November 3, 2014 • Law Times www.lawtimesnews.com FEDERAL COURT Aboriginal Peoples SELF-GOVERNMENT Permanent residency requirement was not met by Chief Current Chief of Cowessess First Nation was evicted from house on Reserve because of non- payment of rent. Current Chief lived in Regina and no longer had home on Reserve. Current Chief maintained farmland that he worked on Reserve and kept equipment on land. Motion was passed to transfer unit to current Chief. Tenant refused to vacate unit and current Chief was un- able to take occupancy. Current Chief refused to call meeting to discuss issues with respect to his residency and Cowessess First Nation #73 Custom Election Act. Current Chief was not allocated house on Reserve. Band Coun- cil refused to order by-election to fill position of Chief. There was dispute about whether posi- tion of Chief was vacant by op- eration of law, which concerned current Chief 's compliance with residency requirements set out in Act. Applicants sought judi- cial review. Application granted. Position was deemed vacant. Respondents did not adduce sufficient evidence to show tra- ditional understanding of per- manent residence. Relevant pro- visions of Act required physical presence of Chief on Reserve. Record showed current Chief did not take up residence on Reserve. Permanent residency require- ment was not met. Current Chief did not take up permanent resi- dence on Reserve within three- month time period required by Act, which triggered article of Act that mandated that when person elected as Chief did not take up permanent residence as required by Act, position of Chief was deemed vacant. Ferguson v. Lavallee (Jun. 13, 2014, F.C., E. Heneghan J., File No. T-1412-13) 242 A.C.W.S. (3d) 756. Immigration PERSON IN NEED OF PROTECTION Board's credibility analysis as a whole was unreasonable Claimant was citizen of Georgia who claimed protection based on physical and verbal abuse by husband. Board did not believe claimant's allegation that claim- ant's husband had tied her to chair and burnt her back with iron. Board assigned claimant's medical reports indicating burn scars on her back low probative value on basis that board did not believe facts on which reports were based. Claimant had con- fronted husband about affair he was having and board con- cluded from this that if she had courage to confront husband and that husband was under inf luence of drink when abuse allegedly took place, it was im- plausible that claimant could have been physically abused by husband. Board concluded claimant lacked credibility and denied claim. Claimant applied for judicial review. Application granted. Board's primary nega- tive credibility finding was that it was implausible that claim- ant could not or would not have overpowered her husband af- ter he was drinking and began to physically abuse her. This finding ref lected disregard and misunderstanding of nature of domestic abuse. To suggest that domestic abuse is perpe- trated against victims whose personal qualities allow it to occur ignores fact that abuse is not consensual and takes place in range of social and interper- sonal circumstances. Conclu- sion was not justifiable or intel- ligible. There was no evidentiary basis to conclude that claimant could have physically repelled attacks of her husband, given typical size and strength dispar- ity between man and woman. Likewise, given persistent abuse claimant had suffered, there was no basis to assume that she would have psychological strength to defend herself, even if it were physically possible. Board's credibility analysis as whole was unreasonable. Danelia v. Canada (Minister of Citizenship and Immigration) (Jul. 16, 2014, F.C., Michael D. Man- son J., File No. IMM-3324-13) 242 A.C.W.S. (3d) 893. REFUGEE STATUS Officer clearly misconstrued objec- tive documentary evidence Refugee claimants were Roma citizens of Hungary whose refu- gee claim was rejected on ground claimants lacked credibility and that there was adequate state protection in Hungary. Claim- ants filed Pre-Removal Risk As- sessment ("PRRA") application with new evidence indicating that their lives were still at risk in Hungary and that situation for Hungarian Roma had become increasingly precarious and dangerous since their claim for refugee protection was denied. Officer found that Hungarian government had made serious efforts and demonstrated its abil- ity to confront racial violence. Officer assigned little weight to documentary evidence submit- ted detailing discrimination and violence against Romani popu- lation in Hungary, finding that claimants had provided insuf- ficient corroborative evidence to demonstrate that they would be personally targeted upon their return. Officer rejected evidence of anonymous threatening notes and evidence of letters from sister-in-law detailing incidents of racial violence against claim- ants. Officer rejected claim and claimants applied for judicial review. Application granted. Of- ficer grounded her conclusion of availability of state protection on series of selectively chosen passages that clearly miscon- strued objective documentary evidence. Officer's reliance on efforts or good intentions on part of Hungarian government was unreasonable approach to evalu- ating state protection for Romani people. Officer's treatment of objective documentary evidence was not reasonable, as she had selectively chosen passages that misconstrued information be- fore her. It was unreasonable to assign low probative value to evidence simply because it came from claimant's family members. It was logical that sister-in-law would be best placed to detail instances of persecution that she observed and it was unreason- able for officer to reject this evi- dence simply because of her rela- tion to claimant. Kanto v. Canada (Minister of Citizenship and Immigra- tion) (Jun. 27, 2014, F.C., Dan- iele Tremblay-Lamer J., File No. IMM-3230-13) 242 A.C.W.S. (3d) 912. SELECTION AND ADMISSION Application of wrong test suf- ficient to grant application Foreign national, aged 47, was citizen of Niger who had been living in Canada for 14 years and who had applied for permanent resident status on humanitarian and compassion- ate grounds. Officer noted that although foreign national had achieved reasonable level of es- tablishment in Canada through employment, friendship and community involvement, his degree of establishment was not exceptional for someone who had been living in Canada for 14 years. Officer also dismissed concern that returning foreign national to Niger, with its low indices of human development, did not meet criteria of hard- ship required under s. 25 of Im- migration and Refugee Protec- tion Act (Can.). Officer found that foreign national had made conscious decision to enter and remain in Canada without valid status and had to anticipate that he might someday be required to leave. Officer concluded that although conditions in Niger were not favourable, they were common harm that affected general population, and foreign national failed to demonstrate that he would be personally and directly seriously affected from these conditions. Officer denied application and foreign national applied for judicial review. Ap- plication granted. Formulation of test under s. 25 of Act was neither correct, nor reasonable. Officer imported test under s. 97 of Act, namely to be eligible for protection, individual must face risk not faced generally by other individuals in or from that country, into s. 25. Conse- quence of reasoning adopted by officer was to eviscerate s. 25 of its purpose. Proper question was whether it would be un- due or disproportionate hard- ship to return this applicant to this country in these particular circumstances. Application of wrong test sufficient to grant ap- plication for judicial review. Aboubacar v. Canada (Minis- ter of Citizenship and Immigra- tion) (Jul. 18, 2014, F.C., Donald J. Rennie J., File No. IMM-3028- 13) 242 A.C.W.S. (3d) 924. Officer's concerns based on pure speculation Principle applicant applied for permanent residence under skilled worker class as restau- rant manager. 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