Law Times

Law Times • February 2, 2015 Page 13 www.lawtimesnews.com FEDERAL COURT Citizenship APPEAL Without adoption having occurred in Pakistan, there can be no adoption in this case Canadian citizen residing in Pakistan obtained guardian- ship of two year old Pakistani girl who had been abandoned. Application for citizenship was made for child. Canadian citi- zen contended that her guard- ianship 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 con- cluded that guardianship de- clared in Pakistan did not cre- ate permanent relationship of parent and child and did not constitute adoption. Applica- tion was denied and applicants applied for judicial review. Ap- plication dismissed. Interpre- tation 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 os- tensibly was used in this case. Only condition under s. 5.1(1) (c) of CA is that there be adop- tion 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 equiva- lent to adoption does not allow even one hint that guardian- ship 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 con- firmed that no adoption could have taken place in Pakistan. Without adoption having oc- curred in Pakistan, there can be no adoption in this case. Mashooqullah v. Canada (Min- ister of Citizenship and Immigra- tion) (Oct. 16, 2014, f.c., Yvan Roy J., File No. T-1929-13) 246 A.C.W.S. (3d) 35. Employment PUBLIC SERVICE Policy and forms ambiguous about when time began to run Applicant employed by respon- dent since 1994, as auditor be- ginning in 1997 and as team leader beginning in 2002. Af- ter several poor performance appraisals, however, applicant demoted back to position as auditor in 2006. Applicant filed grievances regarding perfor- mance appraisals and demo- tion. Grievances referred to in- dependent third party reviewer in April 2008. In September 2008, applicant went on leave for medical reasons. He com- plied with various requests for medical information until 2011, when he failed to respond. As result of failure, respondent terminated applicant for aban- doning position in November 2011. Applicant filed grievance regarding termination. Griev- ance denied on Oct. 2, 2012. Union representative provided applicant with copy of deci- sion on Oct. 16, advising that he had seven days from date of notice to request referral to in- dependent third party reviewer. Respondent's national conf lict resolution office received appli- cant's request for referral to in- dependent third party reviewer on Oct. 29. Respondent denied request on basis it had been re- ceived out of time. Applicant brought application for judicial review, arguing time did not begin to run until he received formal notice of decision from respondent on Nov. 1. Applica- tion allowed. Both policy and forms were ambiguous about when time began to run. Am- biguity had to be resolved in favour of employee. Applicant, therefore, had until Nov. 8 to request referral. Respondent's decision wrong and unreason- able in circumstances even if time began to run earlier. Mat- ter should be remitted for deci- sion in accordance with these reasons. Haymour v. Canada Revenue Agency (Nov. 5, 2014, f.c., Hen- ry S. Brown J., File No. T-377-14) 246 A.C.W.S. (3d) 117. Immigration PERSON IN NEED OF PROTECTION Officer's finding contrary to evidence Applicants' refugee claim was refused. Applicants received negative pre-removal risk as- sessment. Officer accepted evidence that Tamil returnees were at risk but also found that Tamils with actual or perceived association with LTTE or fit special profile were more at risk. Officer found applicants were not at risk because they did not fit special profile. Applicants sought judicial review. Applica- tion granted. Officer failed to meet requirement of determin- ing whether applicants, given their Tamil ethnicity, would suffer more than mere possibil- ity of persecution should they return to country of origin. Of- ficer's finding was contrary to evidence that Tamil returnees suffered arbitrary detention and torture. Sivananthan v. Canada (Minister of Citizenship and Immigration) (Oct. 22, 2014, f.c., Douglas R. Campbell J., File No. IMM- 4311-13) 246 A.C.W.S. (3d) 163. REFUGEE STATUS No factual standard of adequate state protection was ascertained or applied in analysis Refugee claimants were Roma mother, father and child, who were citizens of Hungary and who alleged fear of persecution by reason of Roma ethnicity of mother. Mother claimant al- leged three incidents of perse- cution between 2008 and 2010 by skin heads and Hungarian Guard. Mother claimant only made complaint to police fol- lowing 2008 incident and she was interviewed by police, in- vestigation was started but ter- minated with no results. No further attempts were made to access state protection. RPD found that police acted appro- priately and reasonably and it was unreasonable that claim- ant did not report any of other incidents. RPD found that fact that claimants had contact with police conclusively proved that state protection for Roma ex- isted in Hungary. Claimants adduced rebuttal evidence indicating that state protec- tion did not exist for Roma in Hungary because security force found by RPD as essential for presumption of state protection to arise was not only incapable of protecting Roma, but was es- sentially agent of persecution against Roma. Despite claim- ant's evidence RPD found that there was adequate state protec- tion in Hungary for victims of crime, including crimes com- mitted against Roma. Claim was denied on ground claim- ants had not rebutted pre- sumption of state protection. Claimants applied for judicial review. Application granted. Claimants' single contact with police officer could not be ex- tended to conclusion that police were willing and able to deliver protection, given claimants' evidence of serious police mis- conduct in rebuttal evidence tendered before RPD. RPD was required to consider claimant's contact with one policeman in context with all of rebuttal evidence, and come to conclu- sion on appropriate weight to be placed on single contact with police. Because no factual stan- dard of adequate state protec- tion was ascertained or applied in analysis, RPD's conclusion that adequate state protection existed for Roma in Hungary was rendered in reviewable er- ror of fact. Varga v. Canada (Minister of Citizenship and Immigration) (Oct. 30, 2014, f.c., Douglas R. Campbell J., File No. IMM- 4383-13) 246 A.C.W.S. (3d) 166. SELECTION AND ADMISSION Officer failed to give sufficient con- sideration to best interests of child Best interests of child. Foreign national was citizen of Philip- pines who arrived in Canada in 1999 and who obtained per- manent residency as result of being sponsored by former hus- band from whom she separated in 2000. Foreign national was single mother who lived with 10 year old daughter. In 2006 for- eign national married current husband who was resident and citizen of Philippines. In course of attempting to sponsor her new spouse to come to Canada, foreign national was found to be inadmissible for misrepre- senting material facts in course of her permanent residency application with first husband who had been in separate com- mon law relationship at time. Removal order was issued for foreign national. Foreign na- tional submitted humanitarian and compassionate (H&C) ap- plication, based on her personal and economic establishment in Canada and best interests of her Canadian-born daugh- ter. Application was denied on ground foreign national's caseLaw CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. 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