It's been an interesting last couple of months. I've been honoured to have been asked to speak and contribute my thoughts in a number of venues, including for the Calgary Herald, for Law Matters (on the TWU matter); at CIVITAS; at the CBA National Conference in May; and the Human Rights Forum at GlobalFest.
I heard Justice Diner speak at the Conference, and appeared before him just a couple of weeks later on a judicial review of a H&C refusal. Unfortunately, from my point of view we are visiting the sins of the father upon an innocent child, but I understand the fetters that bind courts on judicial review.
Summer officially started off with a Vacate hearing to determine whether my client is excluded from the refugee definition by virtue of Article 1F(b). The Minister's application was allowed; we are in the midst of seeking judicial review against that decision (for the second time, as this is not the first time a vacate application has been allowed against this particular client).
Federal Court registry staff let us know that our firm had the majority of the immigration hearings scheduled this summer in Calgary, and it definitely felt like it. Justice Shore was the Presiding Justice for two of the JRs in June; and while unusual, both resulted in the right result. Justice Zinn managed a similar splitting of the baby for the hearing I had before him and I think that was also the right solution to that particular problem.
July was busy with hearings in Edmonton (a successful spousal appeal) combined with meetings with Nepalese temporary foreign workers that, unfortunately, after the earthquakes that devastated Nepal, may not have homes to return to. It was the month where I drove up to do a full day hearing on a spousal appeal in Edmonton and then drove back to do one the next day.
It was also my pleasure to call my second articling student to the bar at the beginning of the month.
I was happy to get a positive result for my JR of mid-August. My client had requested relief under s.25 of the Act and in support, we had filed a detailed psychological assessment by Dr. Hap Davis. The officer dismissed the report and the application; we sought judicial review and it was heard before Justice Southcott, a recent appointment to the Court. The facts were most unfortunate, but ultimately it's a good decision as it underscores the fact that immigration officers have to treat psychological assessments fairly and not dismiss them as "speculative" or lacking objectivity without explaining their reasons to do so. Download FC decision
Later in August, I dealt with two IAD spousal appeals. Both were allowed after hearing from the parties to the marriage on consent of the Minister. The first involved a man, getting married for the third time (to a woman with children of her own); and the second involved a sponsor (woman) that was 22 years older than her husband. In both cases, we were dealing with speculation and conjecture rather than proper inference by the visa officers, who seemed to rely on stereotypes in arriving at their decisions.
An ADR was scheduled for a breach of a residency obligation by a permanent resident. I can't quibble about the result, which is that the matter has to be heard by way of a full hearing. Another ADR, one dealing with a medical inadmissibility was also not able to be resolved and put over to a full hearing. An ADR serves a number of functions, one of which is to get the appellant prepared for questioning and the typical areas of concern. It also ensure that the appellant gets his/her disclosure and ducks in a row.
I wrapped up the month appearing before Justice Gascon to argue the refusal of a post-graduate work permit. There's not a lot of case law on this issue, and unfortunately, the result is not going to be of assistance as it reinforces the program's inflexibility.
Coming up are two IAD hearings dealing with misrepresentation. In one, the appellant obtained status in Canada directly as a result of the misrepresentation; in the other, the misrepresentation was more in the lines of non disclosure. In both cases, the individuals involved have their lives in Canada, and children here. Both cases will require the IAD to exercise their equitable jurisdiction. The Board will look to their establishment in Canada, their hardship in return, their family here and the best interests of any children affected by the decision.
Interspersed with those hearings will be two more Federal Court hearings, one, in particular, dealing with a live-in caregiver (or nanny's) non-compliance with the Act.
Litigation is difficult and time consuming; it is however, incredibly rewarding.
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