Our Cases

C.A.C.G. v. Canada (Minister of Citizenship and Immigration)  IMM-596-98, October 6, 1998
This is a landmark case in which the Federal Court set out the test to decide when the Immigration and Refugee Board has ignored evidence.  Before this case, it was often assumed that all the evidence had been taken into account, even when it had not been specifically mentioned in the decision.  In this case, the Court formulated a new test that has to do with the importance of the evidence not mentioned in the decision and the extent to which evidence not supporting the claim has been discussed:  “However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact `without regard to the evidence’…  Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.”  This more flexible test has been adopted by the Court in numerous cases since 1998 in setting aside negative Board decisions.

 T.M.P.S.T. v. Canada (Minister of Citizenship and Immigration) 2003 FC 977, August 13, 2003  The visa officer rejected the application for an immigrant visa as a skilled worker, giving zero points for experience because she was not satisfied that the applicant was a qualified computer programmer.  The Federal Court set aside the decision:

“There is nothing in the record, the affidavit of the Visa Officer or in the transcript of her cross-examination on that affidavit to show that she turned her mind to a comparison of the Applicant's experience, as presented at the interview, and outlined in her employment references, and the duties set out in the NOC for a computer programmer job description 2163. In the result, this Court is unable to identify the reason for the Visa Officer's refusal of this application.“

T.A.  v. Canada (Minister of Citizenship and Immigration)   [2003] F.C.J. No. 1424, Court of Appeal Appeal by the Applicant, a citizen of Turkey, of the lower Court’s dismissal of his application to overturn a negative refugee determination. The Court of Appeal overturned the lower Court’s finding, and sent the Applicant’s claim back to the Board for a new hearing. At issue was the fact that the Applicant had sent new evidence to the Board after his hearing, and the Board had not considered this evidence. The Board took the position that it did not have to consider this evidence because the Member had already reached a decision and had already prepared the reasons. The Court of Appeal agreed with the Applicant that, even where the Member has reached a decision and prepared the reasons, the Board has not officially rendered its decision until these reasons are signed and delivered to the registrar. Therefore the Board erred by not considering the Applicant’s new evidence.

M.A.M. v. Canada (Minister of Citizenship and Immigration) IMM-4278-96, December 12, 1997  The Federal Court set aside a negative decision because the Minister’s delegate who had made the decision had not received the applicant’s written submissions.  The Court said “there is much more substance in the applicant's submissions than is to be found in the brief résumé prepared by the Case Management Branch.”

A.H. v. Canada (Minister of Citizenship and Immigration) 2005 FC 803, June 3, 2005   In an application for Mandamus, seeking a Court order that Canada Immigration process the Convention refugee application without delay, the Court found that the processing of the application was unreasonably delayed and granted an order that a decision be rendered within six months.  The Court said:
“This internal scurrying about with no actual progress is not a satisfactory justification for delay.  Furthermore it is not adequate to pass the buck and avoid responsibility by blaming delays on another government organization. An applicant's right to a decision is an obligation on the Government of Canada acting through the responsible minister. It is the Respondent's obligation to cause the necessary steps within government so that the rights under the statute are fulfilled.”
“In summary, there has been excessive delay beyond that which the nature of the process requires, which is not attributable to the Applicant, and for which there is no adequate justification. The Applicant is entitled to an order of mandamus…..  The Respondent will have the 6 months to make its decision, one way or the other.”

D.W.  v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 1155
Application to overturn a negative refugee determination. The Applicant, a citizen of Jamaica, feared domestic violence from her former partner. The Board rejected her claim because the Member did not believe her evidence, and found that the police would protect her from her attacker. The Court held that the Board had erred on both counts: “The reasons given for lack of credibility do not stand up to scrutiny and those regarding state protection deal with a point not in issue.” The Applicant’s case was returned to the Board for a new hearing, and she was accepted as a refugee.

Canada (Minister of Citizenship and Immigration v. Y.A.  2001 F.C.T. 972, August 30, 2001
The applicant was found to be a Convention refugee, but the Minister of Citizenship and Immigration appealed the decision and argued that the Board should have excluded him from refugee protection because of complicity in war crimes or crimes against humanity.  The Federal Court dismissed the appeal and found that the Board did not err in law in finding that the defence of duress applied, as he was forced in the army against his will and had no means to escape without risking his life.

S.D.H. v. Canada (Minister of Public Safety and Emergency Preparedness) [2006] F.C.J. No. 1060. 
Motion for a stay of deportation. The Applicant, a citizen of Jamaica, was scheduled to be deported from Canada, even though his wife had applied to sponsor him and this application had been pending for several months. The Applicant’s wife was expecting a baby, and the Applicant was also a father figure to his step-son, who suffers from several disabilities. The Court concluded:
I have been persuaded that the applicant is of invaluable assistance and primary care [sic] given to the child…The application for an in-land spousal sponsorship is now in the process for some 7 months and could be determined any day now. I am satisfied that there is a serious issue, if removed from Canada there would be irreparable harm.

H.I.L. v. Canada (Minister of Citizenship and Immigration)  2004 FC 1611, November 16, 2004  In this case the Federal Court set aside the Immigration and Refugee Board’s decision that the applicants, who were from Mexico, could be safe in a different area of their country as being “sheer speculation.”  The judge found that the Board had not referred to evidence that the applicants would not be safe in this area.

M.S.D.B. v. Canada (Minister of Citizenship and Immigration) 2004 FC 1060, August 4, 2004  The Federal Court found that there had been unreasonable delay in the processing of an application for permanent residence on humanitarian and compassionate grounds and ordered that a decision be made within three months.  The Court also ordered the government to pay the applicant’s court costs, finding “special reasons” to do so.

O.O.E.P.  v. Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 417
Application to overturn the Board’s decision to declare the Applicant’s refugee claim abandoned. The Applicant, a citizen of Honduras, had submitted his Personal Information Form to the Board late, because he had confused the deadline for submitting the PIF with the deadline for submitting the medical results. He explained the reasons for his error and the Board believed him; the Member nonetheless found that this was not a good enough reason to have missed the deadline, and declared his claim to have been abandoned. The Court overturned this decision, finding:
In order to deny the applicant relief on an abandonment hearing, the Board must have evidence of an intention by the applicant to abandon the claim. I am of the opinion that the Board’s decision was unreasonable as I can find no evidence that the applicant had an intention to abandon his claim.

Canada (Minister of Citizenship and Immigration) v. S.A.B.  2006 FC 146, February 7, 2006  The Federal Court dismissed the Minister’s application for judicial review of a decision staying a permanent resident’s deportation.  The Court said:  “The Minister is merely disagreeing with the Decision and the way the Board exercised its discretion. The Minister feels it was not appropriate to grant a stay before the release plan was finalized. But the Minister's view would make a release plan an absolute requirement. This is not necessary. If the plan is not finalized as anticipated, and if the public is in danger, section 68 of the Act allows the stay to be cancelled, either at the initiative of the Board or the Minister.”

T.M. v. Canada (Minister of Citizenship and Immigration) 2005 FC 911, June 30, 2005  The Federal Court set aside the negative refugee determination of the Immigration and Refugee Board of the claim from Ethiopia.  The Court said:

“I conclude that the RPD substantially distorted the thrust of directly applicable country conditions documentation that was before it in arriving at the decision under review. In the circumstances, I am satisfied that the RPD erred in a reviewable manner.”

J.L.J. v. Canada (Minister of Citizenship and Immigration) IMM-356-97, March 19, 1998  Immigration officers at first approved a family’s application for permanent residence and later tried to take back this decision and reject the application.  The Federal Court found that this was improper, saying:  “It is always embarrassing for public servants to regard themselves as having made an error in the administration of public law. However, unless there be lawful means to erase such an error, it is maladministration simply to purport to reverse that alleged error high-handedly and unilaterally. In any event, given the CRDD's flaws of reasoning and waffling, the first decision is not clearly in error.”

J.I.M.M. v. Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 589
Application to overturn negative Refugee determination. The Applicants, citizens of El Salvador, were rejected by the Board. The Member did not believe their evidence, and found that in any case the police in El Salvador could protect them from the people they feared. In overturning the decision, the Court found that the Board had erred on both counts. With regard to credibility, the Court held:
Based upon the brief forgoing analysis, I am satisfied that each of the bases relied on by the Board in support of its finding against the Applicant’s credibility is flawed in a material respect.

A.B. v. Canada (Minister of Citizenship and Immigration) 2006 FC 123, February 3, 2006   The visa officer refused an application for immigrant visas that were requested on humanitarian and compassionate grounds.  The Court found that the visa officer’s reasons for refusal were inadequate and did not address the issues raised in the application.
“The applicant was extremely thorough in her submissions in support of her application, and was entitled to be given adequate reasons for the refusal of her application for permanent residence on humanitarian and compassionate grounds. In this case, the Officer's letter of February 18, 2005 and the notes in the applicant's CAIPS file cannot be deemed to constitute sufficient and adequate reasons.

I.H.  v. Canada (Minister of Citizenship and Immigration)[2005] F.C.J. No. 261
Application to overturn a negative refugee determination. The Applicant feared political persecution in Albania. The Member found that he was not credible, based on alleged inconsistencies and omissions in his testimony. The Court found that the Board had made a number of serious errors in reaching this conclusion, and held: “I cannot say with any certainty that it would have come to the same conclusion, had these errors not been made.”

S.S. v. Canada (Minister of Citizenship and Immigration) 2005 FC 2, January 5, 2005  In this case, the Federal Court found that a Pre-Removal Risk Assessment officer had made errors in “ignoring evidence showing that he was not safe anywhere in Bangladesh.”

T.A.O. v. Canada (Minister of Citizenship and Immigration) 2003 FC 1353, November 20, 2003   Canada Immigration refused to grant permanent residence to the applicant who was accepted as a Convention refugee.  He was required to present a passport, but the immigration officer refused to accept his passport because it was issued in Canada and did not pre-date the refugee claim.  The Court stated that the immigration officer had no discretion to refuse to accept the valid and unexpired passport.
 “Since the applicant had a "valid and subsisting" passport at the time of his application, which is no longer disputed by the respondent, it was not within the officer's discretion to determine if the issuance of this document was satisfactory. The "satisfactory" test applies only to identity documents other than passports and if a person has a "valid and subsisting" passport or travel document, then the person will have satisfied the identity part of the requirement to become landed. In this case, there was no question of the authenticity or the validity of the passport, and it bore both the name and the photograph of the applicant. Hence, the officer erred in law when she rejected the passport submitted by the applicant on the grounds that it was issued after his entry into Canada.“

A.V.P.  v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 247
Application to overturn a negative refugee determination. The Applicant feared political persecution in Belarus. The Board concluded that he was not credible, because he had not provided any documentary evidence to confirm that he had been politically involved. The Board overlooked a key document, however – a newspaper article that the Applicant had submitted that corroborated the difficulty of obtaining this type of proof from Belarus. In overturning this decision, the Court held that it was not open to the Board “to simply ignore” this evidence.

M.R.M. v. Canada (Minister of Citizenship and Immigration)  IMM-570-99, July 29, 1999 
The Federal Court set aside the decision of an immigration officer that the applicant had a foreign criminal conviction that made him inadmissible to Canada.  The Court found that there was not enough evidence to say that what the applicant had done would have been a crime in Canada.

R.T.M.B. v. Canada (Minister of Citizenship and Immigration) IMM-1234-99, December 8, 1999
The visa officer rejected the application for an immigrant visa as a skilled worker, giving zero points for experience, because she was not satisfied that he had completed the full range of duties as an Editor.  The Federal Court set aside the decision, saying:

“A review of all of the evidence in the record, including the visa officer's notes, refusal letter and affidavit, confirms that she ignored or failed to appreciate the totality of the evidence concerning the applicant's experience as an editor. … The visa officer was therefore not entitled to ignore the substance of the letter of reference on the basis that it was "...written to help him with his application for permanent residence". Finally, the visa officer found that the applicant's offer of employment as the managing editor of a weekly newspaper in Canada was "not relevant" to the question of his experience. I disagree. The offer of employment related precisely to the occupation in which the visa officer was assessing the applicant and, as such, constituted at least some evidence that he had related experience.”

A.A.R.J. v. Canada (Minister of Citizenship and Immigration) 2004 FC 794, May 31, 2004  In this case, the Federal Court stayed the removal of the Applicant from Canada while she pursued an application for judicial review of a negative Pre-Removal Risk Assessment application.

A.G. v. Canada (Minister of Citizenship and Immigration) 2006 FC 907 Date: July 21, 2006   The Court set aside the Board’s negative refugee determination in the claim from Ethiopia, stating:  “…the Board was impermissibly overzealous in seeking to find [the applicant] not to be credible.  No amount of curial deference warrants allowing the Board's finding of credibility to stand.”

M.E.A. v. Canada (Minister of Citizenship and Immigration)  IMM-243-00, July 17, 2000  The Federal Court decided that refugee hearing had been unfair because certain assumptions were made about the claimant’s sister without allowing her to testify.  The judge concluded:  “I find that it is an error in due process on the facts of this case for the CRDD to intervene to restrict the Applicant’s right to call evidence on the central feature of his claim.”

M.Y. v. Canada (Minister of Citizenship and Immigration) 2003 FCT 131, February 6, 2003  --  The visa officer rejected the application for an immigrant visa as a skilled worker, giving low points for personal suitability.  The Court found that the visa officer erred by basing his decision on evidence that was not in the record.  “It is not open to a visa officer to fail to ask questions of a general nature, arrive at a conclusion in the absence of evidence to support it, or arrive at a conclusion based on unrelated evidence, and then say that the fault lies with the applicant because the onus lies there.  Here, the visa officer arrived at a conclusion in the absence of evidence to support it. The conclusion is therefore patently unreasonable.”

R.P. v. Canada (Minister of Citizenship and Immigration) 2001 FCT 426, May 2, 2001  The Federal Court decided that there was a reasonable apprehension that an immigration adjudicator was biased because she had decided certain issues against the applicant in previous proceedings.  The judge said:  “This would indicate a possible prejudgment with respect to the very issues to be determined at the inquiry. When coupled with the remark about the applicant's counsel, I am of the opinion that an apprehension of bias exists with respect to the adjudicator, therefore, the adjudicator should have recused herself from sitting on the inquiry. The decision of the adjudicator is hereby set aside and the inquiry should be reheard before a different adjudicator.”

H.V. v. Canada (Minister of Citizenship and Immigration) 2005 FC 415, March 29, 2005
The Federal Court set aside the negative decision of the Immigration and Refugee Board in the refugee claim from Albania.  The Court said:
“…it is insufficient, as a matter of law, for the RPD to simply state that it considered the applicants' evidence to be incredible. The RPD is obliged to give reasons in clear and unmistakable terms for rejecting a claim on the ground of credibility.  After a careful reading of the RPD reasons as a whole, I can find no portion of the reasons that complies with the requirement to give reasons for credibility findings in clear and unmistakable terms. Clear reasons were particularly required in view of the finding of the RPD that Mr. V[….]'s uncontradicted testimony was "essentially corroborated" by another witness.

R.G.P. v. Canada (Minister of Citizenship and Immigration) 2003 FC 1462, December 12, 2003  The Federal Court set aside a negative refugee decision because the Board had not properly taken into account evidence that people similarly situated to the applicant had been persecuted in his home country.  The Board had defined the group of others similarly situated too narrowly.

H.A v. Canada (Minister of Citizenship and Immigration) IMM-2174-96, March 25, 1997   The Federal Court set aside the negative refugee determination of the Immigration and Refugee Board.  The Court said:
“I am satisfied the Board erred when it decided that the applicant was not a national of Ethiopia. The Board made this decision because she presented no identity documents from Ethiopia and the Board placed little weight on the letter from the Ethiopian Association and the witness called for the purpose of establishing her identity.  It is clearly evident that the applicant was from Ethiopia and that she speaks the Amharic language and that she referred to dates in the Ethiopian calendar. She also spoke of Ethiopia in general. In addition, the applicant spoke of the Ethiopian Orthodox Church and that she attends this church”

G.A.D.S. v. Canada (Minister of Citizenship and Immigration)  2006 FC 838, June 29, 2006  Finding that the Immigration and Refugee Board had made unreasonable assumptions about how guerrilla organizations operate in foreign countries, the Federal Court set aside a Colombian community activist’s negative refugee decision, saying:  “A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu.”

E. D. v. Canada (Minister of Citizenship and Immigration)  2001 FCT 21, February 5, 2001  The Federal Court decided that the Immigration and Refugee Board had made a number of errors in rejecting an Albanian applicant’s refugee claim on grounds of credibility.

R.J.G. v. Canada (Minister of Citizenship and Immigration) 2006 FC 419, March 30, 2006   The Federal Court decided that the Immigration and Refugee Board had breached the rules of procedural fairness by deciding a claim in part based on an issue that had not been raised at the hearing.

A.S. v. Canada (Minister of Citizenship and Immigration)  IMM-1179-97, January 6, 1998  “The Court is loath to interfere with credibility determination made by tribunals and it is very unusual to do so. However, in my view, this is one of those unusual cases. The panel finds `on a balance of probabilities that the demands for money by the guards in 1994 did not take place’. In assessing the probabilities, the panel had to take account of the evidence before it. In this case, the panel's assessment of the probabilities was based on at least three significant factual errors in the evidence….With the elapse of some 18 months after the bulk of the evidence was given to the date of the credibility decision, it is not surprising the panel made a number of factual errors.”

M.E.T. v. Canada (Minister of Citizenship and Immigration)  2005 FC 509, April 15, 2005  The Federal Court set aside a decision by the Minister that the applicant’s presence in Canada was detrimental to the national interest due to security concerns.  The Court found that the Minister’s decision was not supported by the evidence.

M.M. v. Canada (Minister of Citizenship and Immigration)  2003 FC 1342, November 13, 2003  The Court was highly critical of a negative refugee decision, saying:  “The Board found the applicant vague as to where he was during the course of the demonstration in 1999. On the contrary, given that the protestors were marching, and were joined by other protestors from side streets, his evidence was cohesive and clear no matter whom the questioner. He was not holding a ticket to the theatre - Row G, seat 7.”  The Court continued:  “It may well be that the applicant was lying, and was not at the July 2000 demonstration. Perhaps his demeanour gave him away. However, if he was a two-bit thespian flubbing his lines the Board should have said so. It did not. The Board claims to have applied the principle …that there is a rebuttable presumption that a claimant has sworn the truth. However, this is a case of do as I do, not do as I say. The Board must give valid reasons for discrediting testimony…. Here, the Board failed to do so.  This clearly is a case where the Board may have got it wrong. The finding with respect to credibility was not based on any evidence. The applicant is entitled to a new hearing.”

M.A.I. v. Canada (Minister of Citizenship and Immigration)  IMM-2831-98, March 11, 1999  The Federal Court found that a negative refugee decision was flawed and must be set aside because the Board had failed to refer to supporting personal documents.

M.H. v. Canada (Minister of Citizenship and Immigration) 2006 FC 908, July 21, 2006, The Court set aside the Board’s negative refugee determination in the claim from Ethiopia, stating that the Board’s decision to deny the claim was patently unreasonable.

B.G. v. Canada (Minister of Citizenship and Immigration) 2002 FCT 679, June 14, 2002   The Court set aside the Board’s negative refugee determination in the claim from Ethiopia.  It found that the Board erred in law by ignoring the testimony of a witness whose evidence corroborated that of the claimant

S.S.M.v. Canada (Minister of Citizenship and Immigration) IMM-4064-98
The application for an immigrant visa as a skilled worker was denied because the visa officer refused to award points for a bachelor degree to the applicant because his bachelor degree was only a 2 year degree.  The Court found that the visa officer erred in law and the applicant was entitled to the full points for his bachelor degree.

“There are several considerations that lead me to conclude that counsel for the applicant's argument is the better one. The text of the criteria that are to be addressed under the education factor in Schedule I of the Regulations refers to a first-level university degree that "requires at least three years of full-time study". This suggests that not all first-level university degrees require three years of full-time study. Also, "three years of full-time study" in the Canadian context means three eight-month periods with four months off between each period. In addition, as noted, while the reference under the occupational factor to the NOC only indirectly brings in a reference to a bachelor's degree, subsection (1)(f), the education and training factor of Schedule I of the Regulations refers directly to "a university degree at the bachelor's level", not as under the education factor to "a first-level university degree that requires at least three years of full-time study." When different terminology is used in the same legislative document, one usually assumes that the difference has been noticed by the drafters, that there is a reason for the two different formulations, and that they are not intended to carry the identical meaning.”

A.S. v. Canada (Minister of Citizenship and Immmigration 2001 FCT 404, April 27, 2001 
The application for an immigrant visa as a skilled worker from Malaysia was denied because the visa officer awarded zero points for work experience.  The Federal Court held that the visa officer used the wrong approach in assessing the applicant’s work experience, and the “error in assessing experience was fundamental and the law is well-settled in this regard.”  The Court awarded $1,000 in costs to the applicant

M.M.H. v. Canada (Minister of Citizenship and Immigration) FCTD No. IMM-4162-99, July 21, 2000 
The refugee claim was denied because the applicant’s evidence was found to be not credible.  The Federal Court overturned the Board’s decision, finding that the Board made a number of factual errors in its decision and stated:

“…in this case, the errors are numerous and their cumulative effect is unknown. There comes a point at which the sheer number of errors, whether material or not, leaves one with little confidence in the soundness of the other conclusions reached by the Tribunal. It is clear that the CRDD based its decision on findings of fact made without regard to the material before it. For that reason, the decision must be set aside and the matter remitted to another panel for determination.”

N.A.T. v. Canada (Minister of Citizenship and Immigration), 2001 FCT 540 IMM-559-00
The refugee claim from Pakistan was denied by the Immigration and Refugee Board.  The Federal Court overturned the Board’s decision, because the Board erred in law by applying too high of a burden of proof on the applicant:

“In the present case, the Board stated that it highly doubted that the father had much to fear. What did the Board mean by the words "highly doubt"? Was it that the applicant faced "slightly more than a mere possibility" of persecution? I do not know what the Board meant as there is no explanation in the decision. If the words "highly doubt" mean the same as "slightly more than a mere possibility", then the applicant has established that he has good grounds or a reasonable chance for fearing prosecution. I therefore conclude that the Board has made an error in failing to clearly state what standard of proof it had applied in order to determine the refugee status of the applicants.”

Last updated: January 2007