Federal Court of Canada overturns 5 IRB decisions, orders new hearings

OTTAWA — The parallels in the five refugee cases are striking. All feature women seeking to remain in Canada because of well-founded fears for their safety in their home countries.



All had their applications rejected by the Immigration and Refugee Board or officers of Citizenship and Immigration Canada even though, in 1993, Canada became the first country in the world to establish formal guidelines for refugee claims by women facing gender-related persecution.



And in the past month, the Federal Court has overturned all five decisions and ordered new hearings.



Four of the recent cases involve women — two from the Caribbean island of St. Vincent, one from Brazil and one from Mexico — who are victims of spousal abuse. The other is a woman from Guyana who was raped in front of her children during a brutal home invasion.



In only one case was the applicant’s credibility an issue. In the others, the officials either ruled that adequate state protection exists in their home countries or found that deporting them would not cause “unusual, undeserved or disproportionate hardship.”



Three of the cases involved decisions by the IRB’s refugee protection division. The other two were rejections by Citizenship and Immigration officers of applications for permanent-resident status on humanitarian and compassionate grounds, known as H&C applications.



One of the women, 30-year-old Keisha Paul, fled to Canada in 2002 after her partner in St. Vincent beat her so badly she was hospitalized. Her son, now nine, joined his mother four years later.



In 2008, the IRB rejected her refugee claim because it said Paul had not availed herself of state protection in her home country.



Then, about a year ago, an immigration officer rejected her H&C application as well as her pre-removal risk assessment (PRRA) application. The officer adopted the IRB’s findings that state protection in St. Vincent was available and observed that Paul had failed to demonstrate steady employment or financial independence during her eight years in Canada.



Federal Court Justice Richard Boivin overturned the officer’s finding for failing to assess whether the risk to Paul would give rise to unusual, undeserved or disproportionate hardship — the required legal test.



The other St. Vincent woman, Anthea Cato, claimed refugee protection in 2008 after years of abuse by her husband. Cato, who has a three-year-old son, testified that she repeatedly reported the abuse to the island’s police authorities, who failed to act.



In rejecting her refugee claim, the IRB said Cato’s testimony lacked credibility and dismissed her argument that her memory problems resulted from post-traumatic stress disorder.



But Federal Court Justice André Scott said the board “misconstrued some key facts, and more importantly, ignored some key evidence” in concluding that Cato wasn’t credible.



In another IRB case, the board rejected a refugee claim from Rocio Angelica Flores Alcazar, finding that she didn’t make use of the available state protection in Mexico. Alcazar feared persecution from her former partner, a police officer in Mexico, who beat and raped her, twice sending her to hospital.



Justice Leonard Mandamin found the board failed to consider important aspects of Alcazar’s personal circumstances or properly evaluate contrary evidence about the adequacy of state protection in Mexico.



The third IRB case is that of Thatata Sousa, a Brazilian woman who came to Canada to escape her former spouse, a man described as “violent and in prey to psychiatric issues and substance abuse problems.”



After she was attacked and called police, her father-in-law hung up the phone and later told police the matter was nothing more than a couple’s quarrel. He threatened Sousa and told her he had connections within the police.



Again, the IRB found that Sousa didn’t present sufficient evidence that she couldn’t be protected in Brazil. Judge Simon Noël found that assessment was flawed and overturned the decision.



The final case is that of Estardi Beharry, who fled Guyana with her family for Canada in 2002 after she was beaten and raped in front of her two young children.



The family’s H&C submission described the ongoing trauma suffered by Beharry’s children — now in their teens — as a result of witnessing the vicious attack, and their fear of returning to the country where it occurred.



The officer rejected their application, saying Beharry hadn’t shown that returning to Guyana would have a “significantly negative impact” on the children.



But Judge Anne Mactavish said the officer failed to even address the impact that witnessing the attack has had on them, rendering the rest of the officer’s analysis unreasonable.



The disposition of the cases could suggest that the IRB and immigration officials are putting less weight on the 1993 gender guidelines than they once did. If so, however, the trend is not yet apparent to those who work with or study refugee cases.



“I don’t know that it shows a shift. I hope not,” said Joan Simalchik, a former director of the Canadian Centre for Victims of Torture who now co-ordinates the University of Toronto’s Study of Women and Gender Program.



But the recent cases warrant attention to ensure that the “very important provisions” in the gender guidelines remain intact, she said.



Mitchell Goldberg, a prominent Montreal immigration lawyer and refugee advocate, didn’t want to “leap from individual cases to make a generalization. My experience is that the Immigration and Refugee Board is very sensitive to these issues. There’s obviously exceptions.”



The disposition of refugee claims depends in part on who hears the case, he said. “When you walk into the Immigration and Refugee Board hearing room, to a great extent you know whether your client’s going to be accepted or refused depending on who walks into the room.”



The question of whether applicants can be adequately protected in their home countries “is an area of great controversy” in Federal Court case law, Goldberg said.



Making that assessment isn’t easy, said Toronto immigration lawyer Lorne Waldman. “I think it’s one of the most difficult questions that confronts the IRB,” he said.



The Federal Court is generally more “scrupulous” in reviewing the documentation than the IRB or Citizenship and Immigration officers, Waldman said. “It doesn’t surprise me that on issues such as state protection, there are a lot of decisions getting overturned.”



The court has been especially robust in overturning decisions involving applicants from St. Vincent, a country where violence against women is a major problem. In many instances, according to the U.S. State Department, domestic violence goes unpunished there.



Under the Harper government, acceptance of refugee claims from applicants already in Canada has fallen sharply, from nearly 16,000 in 2006 to just more than 9,000 last year. The number of successful applicants on compassionate and humanitarian grounds, which had been averaging between 10,000 and 11,000 a year, fell to 8,848 in 2010.



Those numbers may reflect Immigration Minister Jason Kenney’s publicly expressed concerns about fraudulent refugee claimants, illegal migrants or other abusers of the system, said Audrey Macklin, a University of Toronto professor who specializes in immigration, refugee and citizenship law.



Kenney appoints IRB members, while those who assess H&C applications work for his ministry, Macklin noted. Given his message of “hostility and skepticism toward asylum-seekers,” she said, “one should be concerned that this may exert an illegitimate influence on decision makers.”



Earlier this month, Kenney accused the courts of “intrusive and heavy-handed” interference in decisions made by immigration officials. “The integrity of decisions made by my department is being questioned too often without sufficient justification.”







Read more: http://www.ottawacitizen.com/sports/Striking+parallels+rejection+refugee+claims/4356526/story.html#ixzz1FERem7ki

MOST CANADIANS BELIEVE BEV ODA SHOULD RESIGN FROM CABINET : Vision Critical.

Many Canadians believe International Co-operation Minister Bev Oda should resign from the federal cabinet over the controversy related to a document that appeared to recommend a grant to faith-based overseas human-rights group Kairos, a new Vision Critical / Angus Reid poll has found.
The controversy began in October 2010, when bureaucrats in the Canadian International Development Agency (CIDA) approved a $7-million grant to Kairos. The original document—which shows the word “NOT” inserted in the recommendation to provide the grant—was shown to respondents of this online survey.
In December 2010, Oda appeared before a House of Commons foreign affairs committee, and denied knowing who inserted the word “NOT” on the document. Earlier this week, Oda acknowledged that the word “NOT” was inserted into the document on her order.
In the online survey of a representative sample of 1,011 Canadian adults, 58 per cent of respondents believe that Oda should resign from cabinet for her actions, while 12 per cent of respondents believe the International Co-operation Minister has apologized and the matter has been dealt with appropriately.
One third of respondents (33%) think Oda was instructed by the Prime Minister to alter the document, while one-in-four (24%) think she acted on her own.
Full Report, Detailed Tables and Methodology (PDF
)

The CRTC has withdrawn a proposal would have considerably narrowed the scope of the current ban to cover only false or misleading news .

The CRTC has withdrawn a controversial proposal that would have given TV and radio stations more leeway to broadcast false or misleading news.




Indeed, the broadcast regulator now says it never wanted the regulatory change in the first place and was only responding to orders from a parliamentary committee.



The committee last week quietly withdrew its request for regulatory amendments in the face of a public backlash.



With that, the Canadian Radio-Television and Telecommunications Commission was only too happy to drop the idea altogether.



The proposed change would have considerably narrowed the scope of the current ban to cover only false or misleading news that could endanger the lives, health or safety of the public.



"All I can say is, 'Thank you, committee,"' CRTC chairman Konrad von Finckenstein told the specialty publication The Wire Report last week.



"I will withdraw this proposal tomorrow. This is the end of this issue."



The proposed change sparked concerns that the CRTC was about to allow into Canada the more toxic — often grossly distorted — political discourse that pervades the American airwaves. Those suspicions were fuelled by the timing of the proposal, only weeks before next month's launch of a new, right-leaning all-news network, Sun TV.



However, Von Finckenstein said the CRTC "never wanted to touch this thing" and had, in fact, dragged its feet for 10 years until "we ran out of stalling devices." He said the CRTC finally proposed the change this year "because we were ordered to do it."



He added that he was always "perfectly happy" with the current ban on false news, which has never been invoked against any broadcaster.



Liberal MP Andrew Kania, co-chairman of the joint parliamentary committee on scrutiny of regulations, challenged von Finckenstein's interpretation of what happened.



He said the committee never ordered the CRTC to do anything. It only asked, 10 years ago, that the CRTC consider whether the blanket ban on false news might violate freedom of speech guarantees in the Charter of Rights. The request was prompted by a Supreme Court ruling in the case of Holocaust-denier Ernst Zundel.



Over the past two years, the committee reminded the CRTC that it still hadn't responded on the matter but did not push for any particular regulatory change, Kania said.



Only last week, in the wake of the public outcry over the CRTC's proposed change, did the committee consider the substance of the issue. Kania said committee members concluded that free speech guarantees don't apply to broadcast licence holders in the same way as they do to individuals.

Opposition MPs say they're going to try to force the prime minister to produce evidence about an altered document at a House of Commons committee.: Oda emails

Opposition MPs say they're going to try to force the prime minister to produce evidence about an altered document at a House of Commons committee.




Liberal foreign affairs critic Bob Rae says the opposition will table motions next week at committee to force the offices of Stephen Harper and International Cooperation Minister Bev Oda to table documents about the infamous "not" inserted on a memo that otherwise would have okayed $7 million in funding for aid organization Kairos.



Rae says the opposition won't drop the issue and vowed to track down whoever inserted the three-letter word, changing the meaning of the typed document.



"Is there an email that says 'do this'?" he asked.



"Who are all the people who received the email? Governments operate with records and with paper. There is a paper trail, there's an email trail. This thing is not going to go away."



International Co-operation Minister Bev Oda in the Commons last week. Oda says it was someone on her staff who inserted the "not" at her instruction. She says the memo reflects her decision.



"We intend to pursue this and I can just say to the government that it's going to be in the dentist chair for weeks to come," Rae said.



"We are not going to allow a minister to mislead the House of Commons and not tell the truth to Canadians about an issue of significance in her department, and simply get away with it."



"If they're refusing to come forward with the information, then the only alternative is root canal. And that's what it's going to be," he said.



Parliamentary privilege

The opposition lodged a formal complaint with House Speaker Peter Milliken last Thursday, arguing Oda breached parliamentary privilege by misleading the House over who recommended denying funds to Kairos.



(CBC) What is the Autopen? The Conservatives officially responded Friday, arguing the facts don’t support the allegation that Oda broke the rules.



MP Tom Lukiwski said the document with the “not” inserted was meant only to communicate the minister’s decision. He said it wasn’t intended to be made public.



The next day, the party reportedly distributed a memo that said Oda was out of town when the decision was due. The memo said her staff inserted the "not" at her instruction and used a machine called an Autopen — that mimics her signature — to sign the document.



NDP foreign affairs critic Paul Dewar says Canadians don't like being lied to. He says the story resonates with voters.



"They care about people not doing their job. They care about when people say they're going to be different and they're not," Dewar said.



"It's about hypocrisy ... (Canadians) don't like when people don't tell the truth and when people try and play them."



Conservatives respond

The opposition has tabled a foreign affairs committee report in the House of Commons that opens the door to possible sanctions against Oda over her responses to the committee last year. Milliken isn't expected to rule on the matter until next week at the earliest.



Conservative MPs filed a supplementary report, saying they don't agree Oda is in breach of privilege or that she intended to mislead the committee.



"The minister does understand that she could have more clearly communicated the purpose and intent of why and how her office implemented her direction, and she has apologized to the House of Commons for how this issue has been handled. In that statement, she clearly said that it was never her intention to mislead either the House of Commons or the committee," the Conservative response read.



If Milliken were to decide Oda's actions constituted a breach, the matter would then go back to a committee to decide whether a vote should be held in the House on the breach question.



If Oda became the first sitting minister to be held in contempt of Parliament, that would put pressure on Harper to remove her from the cabinet.

Derna Libya Soldiers Killed for Not Killing Their Own

Far more Canadians than Americans believe climate change is real, according to a report there's a message there for the federal government.

Far more Canadians than Americans believe climate change is real, according to a report produced by U.S. and Canadian think tanks.



The report, based on the results of two national surveys of public opinion on climate change, was to be released Wednesday by the Public Policy Forum and Sustainable Prosperity and their project partners.



Respondents on both sides of the border were asked their opinion on a range of issues on climate change, starting with whether they believed it was real.



In Canada, 80 per cent believe in the science behind climate change, compared with 58 per cent in the United States.



Alex Wood of Sustainable Prosperity, a research and policy network at the University of Ottawa, says there's a message there for the federal government.



"Canadians continue to believe in very high numbers that climate change is a significant issue," Wood said. "They want to see federal leadership on the issue in terms of a policy regime that will set the course for Canada."



Government responsibility

That sentiment points to another difference discovered by the survey: Just 43 per cent of Americans believe their national government has a great deal of responsibility to address climate change. In Canada, 65 per cent of respondents believe the government has a role to play.



In fact, the poll suggests Canadians want to see all levels of government —from Parliament Hill to provincial capitals to city hall — do something about climate change.



And unlike Americans, Wood says, Canadians are willing to pay for it.



"They believe carbon pricing is part of the necessary policy and they're not scared of it," Wood said.



The poll shows about twice as many Canadians as Americans support both a cap-and-trade system for industry and the idea of paying a carbon tax of up to $50 a month.



The Harper government has said it won't set up a cap-and-trade system without the United States, but Wood says the poll clearly shows Ottawa should reconsider.



The telephone survey was conducted using 916 randomly selected Americans from Nov. 15 to Dec. 9, 2010, and 1,214 Canadian respondents from Jan. 15 to Feb. 4, 2011. The survey's American findings are accurate to within three percentage points and the Canadian survey to within 2.8 percentage points, 19 times out of 20.

The NDP’s national campaign director is warning his troops to be ready to fight an election “in the coming weeks,”

The NDP’s national campaign director is warning his troops to be ready to fight an election “in the coming weeks,” ramping up already overheated speculation that a federal campaign is imminent.



“Stephen Harper has shown little indication that he’s willing to stop the political games,” Brad Lavigne writes in an internal memo to NDP candidates and organizers obtained by The Globe. “He’s shown little indication that he’ll stop the [corporate tax-cut] giveaways to the well-connected.”





The Sunday night missive comes just two days after a meetingbetween Jack Layton and Prime Minister Stephen Harper over the NDP’s demands for next month’s federal budget. It also comes amid a new Nanos poll showing improvements in the national horserace numbers for the NDP.



Clearly, the meeting, in which Mr. Layton presented his budget shopping list, did not go that well – at least not well enough for the NDP to muse about supporting the Harper government’s budget.



Mr. Harper and his team need the support of at least one of the three opposition parties in order for their budget to pass. If the fiscal plan – expected March 22 – is defeated the country will be plunged into a general election.



In his memo, Mr. Lavigne focuses on the issue of the corporate tax cuts – perhaps doing a bit of damage control after weekend stories that the NDP had taken the corporate tax cut issue off the table.



“On Friday, Jack Layton met with Stephen Harper at the Prime Minister’s request,” Mr. Lavigne writes. “Jack Layton’s message to Mr. Harper was clear – it’s time to put the games aside. And it’s time to help Canadian families struggling to get ahead.”



In the meeting, Mr. Layton “stressed that the Liberal/Conservative across-the-board corporate giveaway are wrong for Canada.”



Though Michael Ignatieff has supported tax relief for business in the past, the Liberals now say they cannot support the budget if the government does not roll back this latest round of cuts to corporations.



The NDP opposes the cuts as well, but this was not clear after Mr. Layton’s meeting with Mr. Harper since they were not part of the New Democratic budget wish list. The Liberals jumped on this over the weekend.



“It’s sad to see the NDP abandon the fight for tax fairness without a whimper,” Liberal MP Bob Rae told The Globe. “NDP figures it is losing tax cuts issue to the Liberals, and so needs its own territory. As the Tom Lehrer song says, ‘playing second fiddle’s a hard part, I know, when they won’t give you the bow’.”



Mr. Rae, a former NDP premier of Ontario, believes Mr. Layton’s caucus is divided on whether to try to take down the government over the budget. “If they do join in to the opposition to the budget – because the Tories don’t play ball – they see a small victory. If the Tories play ball – they ‘win’ (according to their theory). People will reward them for gaining concessions.”



The Liberal MP warns, however, that there is a “fatal weakness” to this strategy.



“The first is that everyone can see through it – it simply papers over the split in their caucus, they’ve ceded the tax cut issue to the Liberals (big mistake) and if they support the Tories they’re done for because their base is fiercely anti-Harper. If they don’t support them no one will notice. They are playing a bad hand of cards.”



Mr. Lavigne, meanwhile, told his troops that being ready to fight an election at any time puts the party in a position of strength. “And if Stephen Harper wants to head into an election showing that he is unable to put the needs of Canadians ahead of his own political goals, New Democrats will be ready to fight that election – and win.”