Tuesday, December 22, 2015
Monday, December 21, 2015
I was quoted in today/s National Post on a very unusual case involving deportation and mental illness.
December 20, 2015
Bipolar man on verge of deportation to a country he left as a baby - 57 years ago
By Tom Blackwell
Len Van Heest is now planning a last-ditch application to the new Immigration minister, John McCallum, for a permanent stay of deportation, said his...
A 57-year-old man who immigrated to Canada as a baby is on the verge of being deported from the only country he's known because of a string of crimes triggered by severe mental illness.
Len Van Heest - diagnosed with bipolar disorder in British Columbia at age 16 - is just the latest, dramatic example of a growing trend, say some immigration lawyers.
Increasing numbers of adult immigrants who came here as small children and developed psychiatric or neurological conditions now face removal after the previous government toughened the law on non-citizen criminals, they say.
The Canada Border Services Agency detained Len Van Heest last Wednesday and plans to send him to the Netherlands, though he doesn't speak Dutch and has not lived there since he was in diapers.
We're just dumping someone in another country
The Vancouver Island man neglected to become a Canadian citizen, so falls under legislation that lets the government expel immigrants who commit serious crimes.
A Federal Court judge has just upheld the denial of Van Heest's application to remain on humanitarian and compassionate grounds - and rejected his claim that deportation to the Netherlands would be cruel and unusual punishment.
"I don't think it's fair at all," said Peter Golden, his Victoria-based lawyer. "I don't think we can treat someone who has these vulnerabilities just like we treat everybody else ...We're just dumping someone in another country."
Golden said he is worried that his client will end up on the streets in Holland, without his required drug treatment. "In all probability, it's a death sentence for him."
Van Heest is now planning a last-ditch application to the new Immigration minister, John McCallum, for a permanent stay of deportation, said his lawyer.
But a spokesman for the Canada Border Services Agency said the decision to remove someone from Canada "is not taken lightly," and that various avenues of appeal are open to those facing deportation.
Van Heest was twice given a reprieve from removal, only to relapse into criminal activity, noted another immigration lawyer."I think in this particular case, as the court notes, there were just too many strikes against this fellow," said Sergio Karas, vice-chair of the Ontario Bar Association's immigration section. What's more, "in the Netherlands, you're going to get perhaps even better (mental-health) support than here."
There were just too many strikes against this fellow
Still, the United Nations' human-rights committee criticized Canada earlier this year for another, similar decision: the 2011 deportation of a 52-year-old Jamaican man who had immigrated as a teenager and committed crimes related to his schizophrenia.
Since the Conservatives tightened the law in 2013, lawyers are seeing more such removal cases, "where people came to Canada as children and developed either mental illness or brain injury due to an accident," Golden said.
The deportation rule now kicks in with a sentence of six months or more - down from two years - and there is no longer a right to appeal to the Immigration Appeal Division.
"Across the board, immigration lawyers would say they have been seeing more of these cases," echoed Jennifer Stone, a lawyer at Neighbourhood Legal Services in Toronto. "This fact scenario is one that I see somewhat commonly, and it's a real problem."But Karas said the six-month rule makes sense, since under the old law many judges were imposing sentences of just below two years solely to avoid deportation.
According to the Federal Court ruling earlier this month, Van Heest arrived in Canada at eight months old and was a teenager when diagnosed with bipolar - where altered brain function triggers occasionally severe and disabling mood swings.
The disease causes manic episodes where he becomes agitated and hostile, harming himself and others, said Justice George Locke. He has a lengthy criminal record - usually racked up when he goes off his treatment - with about 32 police reports filed just in 2012.
Van Heest was first ordered removed from Canada in 2008, but twice won stays on deportation, and each time breached the conditions by getting in more trouble with the law, said the decision. Most recently, he was charged with uttering a threat and possession of a dangerous weapon - which Golden said was a kitchen knife.
He applied for reinstatement of his permanent residence on humanitarian and compassionate grounds, but an immigration officer rejected the request.
Golden says his client is tall, burly and bearded - making him look somewhat threatening - but he has never done serious harm to anyone.
Justice Locke - who could only review whether the immigration officer's decision was reasonable, not retry the case - cited evidence from a Dutch psychiatrist that as a citizen of Holland, Van Heest would receive treatment there, and that most Dutch people speak at least some English.
Tuesday, December 15, 2015
Thai is a rare case discussing the applicant's ability to establish himself economically in Canada after receiving a Saskatchewan Nominee Immigration Program certificate.
Yasmin v. Canada (Minister of Citizenship and Immigration)
Tahira Yasmin, Munayar Hussain Rana, Applicants, and
The Minister of Citizenship and Immigration, Respondent
Tahira Yasmin, Munayar Hussain Rana, Applicants, and
The Minister of Citizenship and Immigration, Respondent
 F.C.J. No. 1416
2015 FC 1346
Heard: November 24, 2015.
Judgment: December 4, 2015.
Heard: November 24, 2015.
Judgment: December 4, 2015.
JUDGMENT AND REASONS
1 ANNIS J.:-- This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] of a decision made by an immigration officer of the High Commission of Canada [the Officer] refusing the Applicants' permanent residence as members of the Provincial Nominee Class. The Applicants are seeking to have the decision set aside and referred back to a different officer for redetermination.
2 For the reasons that follow, the application is dismissed.
3 The Principal Applicant, Tahira Yasmin, a citizen of Pakistan, was named in a certificate issued by the province of Saskatchewan for a permanent resident visa application as a member of the Provincial Nominee Class as someone who may become a permanent resident on the basis of their ability to become economically established in Canada pursuant to section 87 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the IRPR or Regulations].
4 The Saskatchewan Immigration Nominee Program [SINP] concluded that the Principal Applicant demonstrated an ability to economically establish herself in Saskatchewan based upon the Province's low unemployment rate and availability of more than 14,000 jobs, many of which were related to the Applicant's education and experience.
5 It also relied upon the fact that the Principal Applicant had an offer of permanent full-time employment from an employer who verified that she had the skills required to perform the job, being that of a cashier working in a gas station.
6 After exchanges with the SINP and a fairness letter being sent to the Applicants, the Officer acting pursuant to section 87(3) substituted his criteria for those of the SINP. It concluded that in order for the Applicants to become economically established, it is expected that they will be able to obtain employment in Canada and already have the abilities, education and work experience which will enable them to procure employment.
7 Based on the foregoing criteria, the Officer concluded that the Applicant did not have the English language skills to be able to perform the duties required for the position of a cashier.
8 This refusal is the decision currently under judicial review.
II. Impugned Decision
9 The Officer noted the Applicants' sufficient settlement funds, but concluded that this in itself was an insufficient indicator of the Applicants' ability to become economically established.
10 The Officer considered the prospective employer's letter indicating, amongst other considerations, that the Principal Applicant's language abilities were similar to those of other employees of his who successfully carried out their duties. The Officer nonetheless concluded that it was reasonable to expect a cashier to require at least moderate English language abilities to work in Saskatoon. Based upon the Applicant's most recent International English Language Testing System [IELTS] results placing her English language abilities below basic for listening, and at the basic level for reading, writing and speaking, she did not have the required level of English proficiency.
11 The Officer indicated to the Principal Applicant that with the level of English language ability she had demonstrated, he was not satisfied that she would be able to perform the tasks of a cashier.
III. Statutory Provisions
12 The relevant subsections of section 87 of the IRPR, SOR/2002-227 in force at the time are as follows:
· 87. (1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.
A foreign national is a member of the provincial nominee class if
subject to subsection (5), they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the Minister; and
they intend to reside in the province that has nominated them.
If the fact that the foreign national is named in a certificate referred to in paragraph (2)(a) is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada.
An evaluation made under subsection (3) requires the concurrence of a second officer.
* * *
· 87. (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des candidats des provinces est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada.
Fait partie de la catégorie des candidats des provinces l'étranger qui satisfait aux critères suivants :
· a) sous réserve du paragraphe (5), il est visé par un certificat de désignation délivré par le gouvernement provincial concerné conformément à l'accord concernant les candidats des provinces que la province en cause a conclu avec le ministre;
· b) il cherche à s'établir dans la province qui a délivré le certificat de désignation.
Si le fait que l'étranger est visé par le certificat de désignation mentionné à l'alinéa (2)a) n'est pas un indicateur suffisant de l'aptitude à réussir son établissement économique au Canada, l'agent peut, après consultation auprès du gouvernement qui a délivré le certificat, substituer son appréciation aux critères prévus au paragraphe (2).
Toute décision de l'agent au titre du paragraphe (3) doit être confirmée par un autre agent.
13 This application raises the issue as to whether the Officer's assessment of the Principal Applicant's permanent resident under the Provincial Nominee Program was reasonable.
V. Standard of Review
14 The applicable standard of review in this application is one of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9).
15 There was some discussion during the hearing concerning the appropriate interpretation of the requirements of demonstrating an ability to become economically established in Canada. The Applicant referred to the decision of Rezaeiazar v Canada (Minister of Citizenship and Immigration), 2013 FC 761 [Rezaeiazar] where at paragraph 77 Justice Russell considered the meaning of becoming economically established in Canada pursuant to paragraph 85 (3) (b) as follows:
·  This brings up the issue of the relationship between the point system and economic self-sufficiency. The Applicant says that, in order to meet the requirements necessary to come to Canada pursuant to the skilled worker class, she must meet the points requirements set out in paragraph 85(3)(b) of the Regulations and demonstrate that she can become economically established in Canada. That is, that she can become economically self-sufficient within a reasonable amount of time upon her arrival in Canada. Given that the Applicant has already surpassed the points requirement by three points in this case, she says that the only issue is whether or not there is an additional requirement that she be able to establish herself economically in the occupation in which she qualified.
· [Emphasis added]
16 Based on the criterion in Rezaeiazar of the Applicant becoming "economically self-sufficient within a reasonable amount of time upon her arrival in Canada" and the employer's letter indicating other employees with similar language deficits were successfully employed, I think it fair to conclude that the Applicant would have the ability to become economically established within a reasonable time after arrival in Canada.
17 The Officer did not apply a test based on reasonably acquiring the abilities in a reasonable time period after arriving in Canada. Instead, the Officer required that the Applicants demonstrate that "they will be able to obtain employment in Canada and already have the abilities, education and work experience which will enable them to procure employment." [Emphasis added]
18 I am satisfied that the Officer applied an appropriate definition of the "the ability to become economically established" for the purpose of section 87 (3) of the Regulations. I find that the circumstances before Justice Russell are distinguishable from those in this matter. In Rezaeiazar, the applicant had "already surpassed the points requirement" and therefore, her abilities, education and work experience were not in issue.
19 It is understandable that the Regulations would require that persons arriving in Canada to occupy positions already possess the necessary abilities, education and work experience to discharge their duties. Otherwise the granting of permanent residency would be based upon a contingent outcome in the future. Once accepted as a permanent resident under the program, the foreign national maintains that status, even if it proves that she is unable to perform in the position, or leaves the Province to live somewhere else in Canada.
20 It is therefore a reasonable policy that an employer's representation of the future successful outcome of someone in the position offered should not outweigh an objective reasonable conclusion that an Applicant who cannot perform the tasks of the position offered is not able to participate sufficiently in the Canadian labour market to economically support herself.
21 Accordingly, I accept the Officer's implicit interpretation of the requirement of becoming economically established in Canada that applicants must demonstrate upon arrival in Canada that they already have the abilities, education and work experience which will enable them to procure employment.
22 On this basis, I also reject the Applicant's argument that in engaging considerations beyond those relied upon by the SINP, the Officer was basing his decision on irrelevant considerations. The Officer acknowledged that deference was owed to the factors underpinning the Province's nomination of persons for the Provincial Nominee Class. Nevertheless, by section 87(3) of the IRPR, it remains the mandate of the Minister to determine whether the Principal Applicant can support herself economically. Accordingly, it is reasonable that the Principal Applicant must be able to demonstrate that she is capable of performing the job offered which includes the communication and related language skills to perform in the position.
23 With respect to the substance of the Officer's decision, I furthermore find it reasonable to conclude that for a position that has tasks of complexity that range from basic to moderate, the Principal Applicant should have at least, moderate English language proficiency. The Principal Applicant possessed only "Extremely limited user" for listening skills, and only basic abilities in reading, writing and speaking in English. These abilities improved slightly on the second test.
24 Additionally, while the employer's statement that he may be prepared to keep persons in a position even though the person does not possess the skills to perform the position because of a shortage of available workers to otherwise perform the tasks, the employer nevertheless did not explain how someone could be a cashier who cannot understand customers, or provide services or maintain or prepare reports with only basic reading, writing and speaking skills.
25 I similarly agree with the Officer's conclusion that the employer's response that the language ability required for the position is "not high" does not explain how the Principal Applicant would be able to perform her duties with only basic and below basic English language abilities except by the employee learning on the job.
26 An employer's representation of the future successful outcome of someone in the position offered does not outweigh an objective reasonable conclusion that an applicant who cannot perform the tasks of the position offered is not able to participate sufficiently in the Canadian labour market to economically support herself.
27 I also conclude that the decision of Sran v Canada (Minister of Citizenship and Immigration), 2012 FC 791 cited by the Applicants where it was found that the officer was applying the criteria from the skilled worker class is distinguishable inasmuch as there is no suggestion here that a language skill is not relevant to being able to perform the job, whether or not it is also a factor for a skilled worker NOC evaluation.
28 Given the deference owed to the decision-maker, including applying his own statute if this could be considered an interpretation issue, I find the evidence sufficient to support the Officer's conclusion that the Applicant does not have the English language skills to be a cashier. As such, the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
29 The application is dismissed and no question will be certified for appeal.
THIS COURT'S JUDGMENT is that the application is dismissed and no question is certified for appeal.