Sergio R. Karas will Chair a distinguished panel of senior government officials to learn about how Service Canada Foreign Worker Program operates in the new economic reality, on Monday, June 15, 2009 at the Ontario Bar Association. Fo rmore information, please see:
http://www.softconference.com/oba/eventdetails.aspx?userID=910964399233842016132009102821&code=09IMM0615T
Saturday, June 13, 2009
Thursday, May 28, 2009
CANADA: SOME JOBS STILL IN DEMAND
Where the jobs are: skilled professions
TAVIA GRANT
From Thursday's Globe and Mail, Thursday, May. 28, 2009 07:10AM EDT
More Canadians may be searching for work, but a report to be released today suggests some sectors are still having trouble filling certain positions.
Skilled trades, such as carpenters and plumbers, along with sales reps, engineers, technicians and accountants are the jobs employers are having most difficulties filling, a Manpower Canada survey of 1,909 employers shows.
The survey comes as the recession has thrown more than 321,000 Canadians out of work, sending the jobless rate to a seven-year high of 8 per cent. Yet even as joblessness rises, today's list suggests demand remains for some skilled professions.
"These results indicate that while more people may be looking for jobs, they don't generally have the skills that organizations are looking for," the report said.
The survey comes on the heels of a new report on Canada's job market, prepared for the federal and provincial labour ministers and obtained by The Globe and Mail, which detailed inefficiencies in the way the country collects and shares information about employment. That report found, for example, little co-ordinated knowledge about job vacancies across the country, or how many people are graduating from postsecondary training and what skills they have.
The Manpower survey also comes as the federal government is boosting spending on job retraining in response to rising unemployment. Some economists believe the jobless rate will veer into double-digit territory - around 10 per cent - over the coming year.
"As people consider work, they now have the opportunity to look at where the talent shortages exist for Canada, and what would suit them in terms of interest and aptitude," said Nadia Ciani, Manpower's vice-president of human resources.
Compared with previous years, the fastest-growing area for jobs lies in engineering, personal assistants and teachers, particularly at the postsecondary level, Ms. Ciani said.
Canadian companies, many of which have downsized in recent months, are far less concerned about talent shortages than they were a few years ago. Just 24 per cent of employers this year said they have difficulty filling positions, far fewer than in 2006, when 66 per cent of them were worried.
The survey was conducted in January and is part of an annual global Manpower release that polled 39,000 employers. Worldwide, it found that 30 per cent of companies are still having difficulty filling certain positions, and that the most sought-after jobs are much the same as in Canada - skilled trades, sales reps and engineers - along with managers and production operators.
****
Workers wanted
The top 10 jobs Canadian employers are having trouble filling, according to a new survey by Manpower Canada:
1. Skilled trades, such
as carpenters or plumbers.
2. Sales representatives.
3. Engineers.
4. Technicians, such as audio or dental technicians.
5. Secretaries and office support staff.
6. Teachers, particularly at
postsecondary level.
7. Drivers.
8. Accounting and finance.
9. Labourers.
10. Nurses.
Source: Manpower Canada
TAVIA GRANT
From Thursday's Globe and Mail, Thursday, May. 28, 2009 07:10AM EDT
More Canadians may be searching for work, but a report to be released today suggests some sectors are still having trouble filling certain positions.
Skilled trades, such as carpenters and plumbers, along with sales reps, engineers, technicians and accountants are the jobs employers are having most difficulties filling, a Manpower Canada survey of 1,909 employers shows.
The survey comes as the recession has thrown more than 321,000 Canadians out of work, sending the jobless rate to a seven-year high of 8 per cent. Yet even as joblessness rises, today's list suggests demand remains for some skilled professions.
"These results indicate that while more people may be looking for jobs, they don't generally have the skills that organizations are looking for," the report said.
The survey comes on the heels of a new report on Canada's job market, prepared for the federal and provincial labour ministers and obtained by The Globe and Mail, which detailed inefficiencies in the way the country collects and shares information about employment. That report found, for example, little co-ordinated knowledge about job vacancies across the country, or how many people are graduating from postsecondary training and what skills they have.
The Manpower survey also comes as the federal government is boosting spending on job retraining in response to rising unemployment. Some economists believe the jobless rate will veer into double-digit territory - around 10 per cent - over the coming year.
"As people consider work, they now have the opportunity to look at where the talent shortages exist for Canada, and what would suit them in terms of interest and aptitude," said Nadia Ciani, Manpower's vice-president of human resources.
Compared with previous years, the fastest-growing area for jobs lies in engineering, personal assistants and teachers, particularly at the postsecondary level, Ms. Ciani said.
Canadian companies, many of which have downsized in recent months, are far less concerned about talent shortages than they were a few years ago. Just 24 per cent of employers this year said they have difficulty filling positions, far fewer than in 2006, when 66 per cent of them were worried.
The survey was conducted in January and is part of an annual global Manpower release that polled 39,000 employers. Worldwide, it found that 30 per cent of companies are still having difficulty filling certain positions, and that the most sought-after jobs are much the same as in Canada - skilled trades, sales reps and engineers - along with managers and production operators.
****
Workers wanted
The top 10 jobs Canadian employers are having trouble filling, according to a new survey by Manpower Canada:
1. Skilled trades, such
as carpenters or plumbers.
2. Sales representatives.
3. Engineers.
4. Technicians, such as audio or dental technicians.
5. Secretaries and office support staff.
6. Teachers, particularly at
postsecondary level.
7. Drivers.
8. Accounting and finance.
9. Labourers.
10. Nurses.
Source: Manpower Canada
Sunday, May 24, 2009
CANADA; NEW ID REQUIREMENTS CAUSE CONCERN
May 24, 2009
New Requirements on Border ID Stir Worries at Crossings
New York Times
By GINGER THOMPSON
WASHINGTON — After years of delay and hundreds of millions of dollars in preparations, Customs and Border Protection officials said new security measures would go into effect on June 1, requiring Americans entering the country by land or sea to show government-approved identification.
Currently, Americans crossing borders or arriving on cruise ships can prove their nationality by showing thousands of other forms of identification. But after the start of the Western Hemisphere Travel Initiative, Americans will be required to present a passport or one of five other secure identification cards.
Coming as the summer vacation season starts, the measure is expected to lengthen lines at least temporarily at border crossings and seaports. But the biggest impact is expected along the nearly 4,000-mile border that the United States shares with Canada, which both countries once boasted was the world’s longest undefended frontier.
Before the Sept. 11 terrorist attacks, Americans and Canadians crossing that border were required to do little more than state their nationality. Security has been gradually increased since then, causing longer lines and a steady drop in casual cross-border excursions, according to business and travel associations that monitor border traffic.
Now some local and state officials are concerned that the new measures might further disrupt a major trading relationship for the United States and drive apart border communities that have deep economic and cultural ties.
“We treat Canada like going to Ohio or to Chicago for the weekend,” said Sarah Hubbard of the Detroit Regional Chamber of Commerce. “We have families living on both sides of the border. We have business partnerships on both sides of the border.
“We believe our community is unique because it is bi-national,” Ms. Hubbard added. “It’s seamless in many ways.”
Nearly 20 percent of all land trade between the United States and Canada — valued at an estimated $130 billion — crosses the Ambassador Bridge between Detroit and Windsor, Ontario, according to the Bureau of Transportation Statistics. Ms. Hubbard said some 461,000 trucks, buses and cars crossed the Ambassador Bridge each month.
She said an estimated 4,000 Canadian health care workers commuted into Detroit to work. And the manufacturing industry is so transnational, she said, that a single car can be sent back and forth across the border 12 times before the finished product is ready to be shipped to a dealer.
Still, she said, cross-border traffic has fallen since Sept. 11. Traffic across the Ambassador Bridge is down by nearly 100,000 crossings a month this year compared with last year, Ms. Hubbard said. Representative Louise M. Slaughter, Democrat of New York, said that at border crossings in her state, traffic was down 13 percent to 19 percent this year from what it was last year.
Ms. Hubbard said some of the decline had been caused by the recession. But some of it she attributed to “confusion about documents and hostile treatment by border officials.”
“We have many people who come from Canada and tell us they don’t feel welcome when they cross the border,” she said. “We talk about those complaints with our friends on the border, and they tell us their job is security, not customer service.”
Janet Napolitano, the homeland security secretary who forged her political career on the southern border and plans to travel to the northern border next week, makes no apologies for the tightened security measures, including using unmanned Predator aircraft from Grand Forks Air Force Base in North Dakota to patrol the border with Canada.
Ground sensors were added along the border in Vermont, and towers equipped with cameras and sensors are being built around Buffalo.
“One of the things that I think we need to be sensitive to is the very real feeling among southern border states, and in Mexico, that if things are being done on the Mexican border, they should also be done on the Canadian border,” Ms. Napolitano said at a recent conference on the northern border at the Brookings Institution.
Her comparisons between the northern and southern borders have stirred outrage in Canada, where 80 percent of the population lives within 100 miles of the border and the government considers itself one of America’s most reliable allies.
Seizures of illegal drugs and the detention of immigrants along the northern border are a small fraction of what they are along the southern one, which is considered the busiest transshipment point for illegal immigrants and drugs in the world.
Still, Canadian officials said that their government, like the United States, had become much more sensitive to terrorism threats since Sept. 11. Canada has invested heavily, they said, in improving immigration controls, upgrading security at airports and seaports, sharing intelligence with its allies, and establishing its own homeland security agency, which includes joint American-Canadian border enforcement teams. And Canadian border guards began getting their first weapons in 2007, after years of debate about whether they should be armed.
A Canadian diplomat in Washington said his country’s biggest diplomatic problem had been dealing with the American perception that Canada poses a threat because of its open immigration policy and concerns that it is a haven for terrorists. “We spend a lot of time trying to explain the fact that just because you don’t have the National Guard or a fence along the border, it doesn’t mean it’s not secure,” said the diplomat, who asked not to be identified because of the sensitivity of his comments.
Plans to put the Western Hemisphere Travel Initiative into effect two years ago were postponed because of a significant backlog in passport applications and delays getting sufficient staff and equipment in place.
In a meeting with reporters on Wednesday, Jayson P. Ahern, acting commissioner of Customs and Border Protection, said Congress had allotted $350 million to help the agency resolve those problems.
Mr. Ahern said recent surveys of drivers across the border suggested that more than 80 percent of them had the required identification. The State Department, he said, has issued a million passport cards, wallet-size identification. And at least two million other people have gotten one of the four other kinds of acceptable border crossing cards.
“I don’t expect any major delays or traffic jams as a result of this program,” Mr. Ahern said. “There will be no story on June 1.”
New Requirements on Border ID Stir Worries at Crossings
New York Times
By GINGER THOMPSON
WASHINGTON — After years of delay and hundreds of millions of dollars in preparations, Customs and Border Protection officials said new security measures would go into effect on June 1, requiring Americans entering the country by land or sea to show government-approved identification.
Currently, Americans crossing borders or arriving on cruise ships can prove their nationality by showing thousands of other forms of identification. But after the start of the Western Hemisphere Travel Initiative, Americans will be required to present a passport or one of five other secure identification cards.
Coming as the summer vacation season starts, the measure is expected to lengthen lines at least temporarily at border crossings and seaports. But the biggest impact is expected along the nearly 4,000-mile border that the United States shares with Canada, which both countries once boasted was the world’s longest undefended frontier.
Before the Sept. 11 terrorist attacks, Americans and Canadians crossing that border were required to do little more than state their nationality. Security has been gradually increased since then, causing longer lines and a steady drop in casual cross-border excursions, according to business and travel associations that monitor border traffic.
Now some local and state officials are concerned that the new measures might further disrupt a major trading relationship for the United States and drive apart border communities that have deep economic and cultural ties.
“We treat Canada like going to Ohio or to Chicago for the weekend,” said Sarah Hubbard of the Detroit Regional Chamber of Commerce. “We have families living on both sides of the border. We have business partnerships on both sides of the border.
“We believe our community is unique because it is bi-national,” Ms. Hubbard added. “It’s seamless in many ways.”
Nearly 20 percent of all land trade between the United States and Canada — valued at an estimated $130 billion — crosses the Ambassador Bridge between Detroit and Windsor, Ontario, according to the Bureau of Transportation Statistics. Ms. Hubbard said some 461,000 trucks, buses and cars crossed the Ambassador Bridge each month.
She said an estimated 4,000 Canadian health care workers commuted into Detroit to work. And the manufacturing industry is so transnational, she said, that a single car can be sent back and forth across the border 12 times before the finished product is ready to be shipped to a dealer.
Still, she said, cross-border traffic has fallen since Sept. 11. Traffic across the Ambassador Bridge is down by nearly 100,000 crossings a month this year compared with last year, Ms. Hubbard said. Representative Louise M. Slaughter, Democrat of New York, said that at border crossings in her state, traffic was down 13 percent to 19 percent this year from what it was last year.
Ms. Hubbard said some of the decline had been caused by the recession. But some of it she attributed to “confusion about documents and hostile treatment by border officials.”
“We have many people who come from Canada and tell us they don’t feel welcome when they cross the border,” she said. “We talk about those complaints with our friends on the border, and they tell us their job is security, not customer service.”
Janet Napolitano, the homeland security secretary who forged her political career on the southern border and plans to travel to the northern border next week, makes no apologies for the tightened security measures, including using unmanned Predator aircraft from Grand Forks Air Force Base in North Dakota to patrol the border with Canada.
Ground sensors were added along the border in Vermont, and towers equipped with cameras and sensors are being built around Buffalo.
“One of the things that I think we need to be sensitive to is the very real feeling among southern border states, and in Mexico, that if things are being done on the Mexican border, they should also be done on the Canadian border,” Ms. Napolitano said at a recent conference on the northern border at the Brookings Institution.
Her comparisons between the northern and southern borders have stirred outrage in Canada, where 80 percent of the population lives within 100 miles of the border and the government considers itself one of America’s most reliable allies.
Seizures of illegal drugs and the detention of immigrants along the northern border are a small fraction of what they are along the southern one, which is considered the busiest transshipment point for illegal immigrants and drugs in the world.
Still, Canadian officials said that their government, like the United States, had become much more sensitive to terrorism threats since Sept. 11. Canada has invested heavily, they said, in improving immigration controls, upgrading security at airports and seaports, sharing intelligence with its allies, and establishing its own homeland security agency, which includes joint American-Canadian border enforcement teams. And Canadian border guards began getting their first weapons in 2007, after years of debate about whether they should be armed.
A Canadian diplomat in Washington said his country’s biggest diplomatic problem had been dealing with the American perception that Canada poses a threat because of its open immigration policy and concerns that it is a haven for terrorists. “We spend a lot of time trying to explain the fact that just because you don’t have the National Guard or a fence along the border, it doesn’t mean it’s not secure,” said the diplomat, who asked not to be identified because of the sensitivity of his comments.
Plans to put the Western Hemisphere Travel Initiative into effect two years ago were postponed because of a significant backlog in passport applications and delays getting sufficient staff and equipment in place.
In a meeting with reporters on Wednesday, Jayson P. Ahern, acting commissioner of Customs and Border Protection, said Congress had allotted $350 million to help the agency resolve those problems.
Mr. Ahern said recent surveys of drivers across the border suggested that more than 80 percent of them had the required identification. The State Department, he said, has issued a million passport cards, wallet-size identification. And at least two million other people have gotten one of the four other kinds of acceptable border crossing cards.
“I don’t expect any major delays or traffic jams as a result of this program,” Mr. Ahern said. “There will be no story on June 1.”
Monday, May 4, 2009
CBSA UNDER SCRUTINY ON ADMISSIONS
Border guards break rules allowing criminals into country: report
The Canadian Press
17 hours ago
OTTAWA — Border guards have been breaking rules in allowing hundreds of serious criminals to come to Canada, says an internal review.
The Canada Border Services Agency allowed 535 people convicted of serious crimes to enter the country last year for compassionate or economic reasons, under so-called temporary resident permits.
And a sample of about half those cases found a litany of problems, including failure to get the required permission from the immigration minister's designated officials.
The internal review also found the files frequently lacked key information about exactly why some criminals were given a pass into the country - some for repeat visits.
A draft copy of the report was obtained by The Canadian Press under the Access to Information Act.
The findings confirm and expand upon a critical examination of the border service last year by the federal auditor general, who also found incomplete documentation and sloppy standards.
Under Canada's immigration rules, border guards can issue temporary resident permits to people who would otherwise be barred from Canada, whether for medical reasons or past criminality.
Exceptions are supposed to be made only for humanitarian or compassionate reasons, or for the economic benefit of Canada.
The review cites one example in which a hunter with a criminal past might be allowed into the country because a Canadian outfitter would otherwise lose money.
The permits, which cost $200, are valid for between a day and three years, depending on the decisions of individual officers.
Canada has no exit controls, relying instead on the honour system. Expiry dates on the permits are neither monitored nor enforced unless the ex-offender comes to the attention of authorities for unrelated reasons, such as a fresh crime.
Most permits related to criminality are issued to Americans with drunk-driving offences. But each year hundreds of permits are also handed to persons convicted of "serious" crimes, defined as offences that, if committed in Canada, would be punishable by a maximum prison sentence of at least 10 years.
Agency investigators last fall visited nine border offices - including the airports in Vancouver, Calgary, Ottawa, Montreal and Halifax - where they examined 628 files for permits issued to people convicted of past criminal activity.
The land borders visited were at Coutts, Alta., Landsdowne, Ont., Fort Frances, Ont., and Lacolle, Que. All locations were chosen because of the high number of such permits issued over the previous two years to people with past criminality.
The list of crimes included child molestation, fraud, automobile homicide, burglary, bank theft, arson, cocaine trafficking, handgun possession and other offences.
Of the 628 permits examined, 282 went to people convicted of serious criminality.
The review team found that officers failed to get permission from senior officials delegated by the immigration minister for 31 of those serious criminals, as required under the rules.
That's 11 per cent of all such cases and, if consistent for the entire year, would mean about 59 people convicted of serious crimes were not properly vetted before they were allowed to enter the country in 2008.
"Given that concurrence is a requirement for all serious criminality cases, there is need for some improvement," says the report.
The files also lacked key documentation in more than half the cases that would justify these decisions.
Investigators were also concerned that about a third of the permits they examined allowed the person to re-enter Canada, rather than having to re-apply for permission.
The report questioned why such persons should not be required to re-apply abroad each time they intended to visit Canada.
A spokeswoman for the Canada Border Services Agency did not respond to requests for comment.
http://www.google.com/hostednews/canadianpress/article/ALeqM5hKcAmlgxBHomvnrcIofIcaezQldQ
The Canadian Press
17 hours ago
OTTAWA — Border guards have been breaking rules in allowing hundreds of serious criminals to come to Canada, says an internal review.
The Canada Border Services Agency allowed 535 people convicted of serious crimes to enter the country last year for compassionate or economic reasons, under so-called temporary resident permits.
And a sample of about half those cases found a litany of problems, including failure to get the required permission from the immigration minister's designated officials.
The internal review also found the files frequently lacked key information about exactly why some criminals were given a pass into the country - some for repeat visits.
A draft copy of the report was obtained by The Canadian Press under the Access to Information Act.
The findings confirm and expand upon a critical examination of the border service last year by the federal auditor general, who also found incomplete documentation and sloppy standards.
Under Canada's immigration rules, border guards can issue temporary resident permits to people who would otherwise be barred from Canada, whether for medical reasons or past criminality.
Exceptions are supposed to be made only for humanitarian or compassionate reasons, or for the economic benefit of Canada.
The review cites one example in which a hunter with a criminal past might be allowed into the country because a Canadian outfitter would otherwise lose money.
The permits, which cost $200, are valid for between a day and three years, depending on the decisions of individual officers.
Canada has no exit controls, relying instead on the honour system. Expiry dates on the permits are neither monitored nor enforced unless the ex-offender comes to the attention of authorities for unrelated reasons, such as a fresh crime.
Most permits related to criminality are issued to Americans with drunk-driving offences. But each year hundreds of permits are also handed to persons convicted of "serious" crimes, defined as offences that, if committed in Canada, would be punishable by a maximum prison sentence of at least 10 years.
Agency investigators last fall visited nine border offices - including the airports in Vancouver, Calgary, Ottawa, Montreal and Halifax - where they examined 628 files for permits issued to people convicted of past criminal activity.
The land borders visited were at Coutts, Alta., Landsdowne, Ont., Fort Frances, Ont., and Lacolle, Que. All locations were chosen because of the high number of such permits issued over the previous two years to people with past criminality.
The list of crimes included child molestation, fraud, automobile homicide, burglary, bank theft, arson, cocaine trafficking, handgun possession and other offences.
Of the 628 permits examined, 282 went to people convicted of serious criminality.
The review team found that officers failed to get permission from senior officials delegated by the immigration minister for 31 of those serious criminals, as required under the rules.
That's 11 per cent of all such cases and, if consistent for the entire year, would mean about 59 people convicted of serious crimes were not properly vetted before they were allowed to enter the country in 2008.
"Given that concurrence is a requirement for all serious criminality cases, there is need for some improvement," says the report.
The files also lacked key documentation in more than half the cases that would justify these decisions.
Investigators were also concerned that about a third of the permits they examined allowed the person to re-enter Canada, rather than having to re-apply for permission.
The report questioned why such persons should not be required to re-apply abroad each time they intended to visit Canada.
A spokeswoman for the Canada Border Services Agency did not respond to requests for comment.
http://www.google.com/hostednews/canadianpress/article/ALeqM5hKcAmlgxBHomvnrcIofIcaezQldQ
Sunday, May 3, 2009
CANADA: SERGIO R. KARAS QUOTED IN HAMILTON SPECTATOR
Shaky refugee system let in killer
Shaky refugee system let in killer
Paul Morse
The Hamilton Spectator
(May 2, 2009)
As the mystery of how a convicted double killer managed to enter Canada as a refugee deepens, experts say our overburdened refugee system is likely partially to blame.
"At this point, the system is close to collapse," said Sergio Karas, a Toronto immigration lawyer and past chair of the International Bar Association Immigration and Nationality Committee.
The 1990s "was the time of the highest influx of refugees, because we had people coming from China, because of Tiananmen Square, the Balkan crises and war in Latin America in Nicaragua and El Salvador."
It was also the time of the breakup of the Soviet Union, he said.
"The system was overtaxed at the time, and the system continues to be overtaxed."
Canada's Immigration and Refugee Board (IRB) says it cannot make any information public about the case of Elvir Pobric, 37, a Bosnian landed immigrant arrested this week in Calgary on a Canada-wide immigration warrant.
According to authorities, Pobric shot two foreign-currency dealers to death and robbed them of large sums of money in a small village in northeastern Bosnia on April 4, 1992, just days before the outbreak of ethnic violence between Bosnian Serbs and Muslims.
Pobric was caught and sentenced to 20 years in prison. According to Interpol, Pobric broke out of prison in 1996 and disappeared from view.
Pobric entered Canada as a refugee under his own name sometime between 1996 and 1999, living first in Ottawa and then moving to Hamilton, where he became an aluminum siding contractor. Now married with a young family, the Bosnian immigrant set up a permanent home in Grimbsy.
Two years ago, he began working in Calgary and commuted home to Grimsby every month or so. Hamilton police and the Canada Border Services Agency began to hunt for him when Hamilton police Chief Brian Mullan received two letters from the daughter of one of his victims. She said Pobric was in Hamilton and begged Mullan to return him to prison.
But members of Pobric's family say the contractor had been interned in Serbian "detention camps" and was under the eye of the International Committee of the Red Cross (ICRC) until his legal release in November 1996.
Relatives yesterday handed over a document to the Canadian Red Cross in Hamilton with an ICRC stamp on it that lists Pobric's release from prison on Nov. 6, 1996.
Canadian Red Cross officials say they are checking the veracity of Pobric's story with ICRC delegations in Washington and Geneva.
During the Balkan conflict, refugees entered Canada either by arriving in the country and claiming refugee status or through Canada's government sponsored resettlement program, which fast-tracked refugees in war-torn regions and transported them to Canada.
Morteza Jafarpour, executive director of Hamilton's Settlement and Integration Services Organization (SISO), said it was not uncommon for refugees to use fake documents to escape horrific genocide or persecution so they could make a better life in Canada.
"Whether (Pobric) escaped from prison or was released is irrelevant," said immigration expert Karas.
"The only thing that is relevant from an immigration point of view is, first, does he have a criminal history, and, two, how come nobody picked it up?"
http://www.thespec.com/News/Local/article/558939
Shaky refugee system let in killer
Paul Morse
The Hamilton Spectator
(May 2, 2009)
As the mystery of how a convicted double killer managed to enter Canada as a refugee deepens, experts say our overburdened refugee system is likely partially to blame.
"At this point, the system is close to collapse," said Sergio Karas, a Toronto immigration lawyer and past chair of the International Bar Association Immigration and Nationality Committee.
The 1990s "was the time of the highest influx of refugees, because we had people coming from China, because of Tiananmen Square, the Balkan crises and war in Latin America in Nicaragua and El Salvador."
It was also the time of the breakup of the Soviet Union, he said.
"The system was overtaxed at the time, and the system continues to be overtaxed."
Canada's Immigration and Refugee Board (IRB) says it cannot make any information public about the case of Elvir Pobric, 37, a Bosnian landed immigrant arrested this week in Calgary on a Canada-wide immigration warrant.
According to authorities, Pobric shot two foreign-currency dealers to death and robbed them of large sums of money in a small village in northeastern Bosnia on April 4, 1992, just days before the outbreak of ethnic violence between Bosnian Serbs and Muslims.
Pobric was caught and sentenced to 20 years in prison. According to Interpol, Pobric broke out of prison in 1996 and disappeared from view.
Pobric entered Canada as a refugee under his own name sometime between 1996 and 1999, living first in Ottawa and then moving to Hamilton, where he became an aluminum siding contractor. Now married with a young family, the Bosnian immigrant set up a permanent home in Grimbsy.
Two years ago, he began working in Calgary and commuted home to Grimsby every month or so. Hamilton police and the Canada Border Services Agency began to hunt for him when Hamilton police Chief Brian Mullan received two letters from the daughter of one of his victims. She said Pobric was in Hamilton and begged Mullan to return him to prison.
But members of Pobric's family say the contractor had been interned in Serbian "detention camps" and was under the eye of the International Committee of the Red Cross (ICRC) until his legal release in November 1996.
Relatives yesterday handed over a document to the Canadian Red Cross in Hamilton with an ICRC stamp on it that lists Pobric's release from prison on Nov. 6, 1996.
Canadian Red Cross officials say they are checking the veracity of Pobric's story with ICRC delegations in Washington and Geneva.
During the Balkan conflict, refugees entered Canada either by arriving in the country and claiming refugee status or through Canada's government sponsored resettlement program, which fast-tracked refugees in war-torn regions and transported them to Canada.
Morteza Jafarpour, executive director of Hamilton's Settlement and Integration Services Organization (SISO), said it was not uncommon for refugees to use fake documents to escape horrific genocide or persecution so they could make a better life in Canada.
"Whether (Pobric) escaped from prison or was released is irrelevant," said immigration expert Karas.
"The only thing that is relevant from an immigration point of view is, first, does he have a criminal history, and, two, how come nobody picked it up?"
http://www.thespec.com/News/Local/article/558939
Monday, April 6, 2009
CANADA: OTTAWA SUED OVER MARRAIGE FRAUD
Marriage Fraud Targeted
Lawsuit Filed; Group seeks immigration changes
John Ivison, National Post
Reena Bhandari, a psychiatric nurse from Ottawa, feels she's been let down by Canada's immigration system.
She married an Indian widower called Manjeet Singh Bagga in August, 2001, after meeting him through a Sikh match-making Web site. Mr. Bagga and his daughter from his previous marriage arrived in Canada the following July, having been sponsored by Ms. Bhandari. But Ms. Bhandari said it was a marriage of convenience for Mr. Bagga, who was only interested in her money and the opportunity to gain Canadian citizenship.
She is part of a 100-member class-action lawsuit filed by an organization called Canadians Against Immigration Fraud that has been lodged against the federal government for failing to deport foreigners who misrepresent themselves and lure Canadians into marriage.
A lawyer for the case that has commenced at Federal Court, Julie Taub, wants the government to tighten up the Immigration and Refugee Protection Act so that it more closely mirrors laws in countries such as Australia and the United States. In Canada, there are no conditions that state the spouses even have to live together, while in other countries the authorities follow up to see if the marriage is genuine.
In Australia, permanent visas are not issued until a waiting period of two years and the spouses have to have been in a relationship for a year before lodging an application. The United States issues conditional permanent residence status, which requires spouses to prove that they did not get married to evade immigration laws after a two-year period. "It highlights a problem in the legislation that would be so easy to remedy to prevent a non-stop infusion of fraudsters," said Ms. Taub.
The government claims in its defence that it has 600 files involving immigration fraud and only a limited number of officers to process them.
In Ms. Bhandari's case, the marriage quickly descended into acrimony -- "I felt like I was being used as a bank machine. He was not interested in me -- money was his only priority," she said. The relationship eventually ended in April 2004, when Mr. Bagga said he had to return to India to deal with a court case. He had told Ms. Bhandari that his first wife had died in a car accident but she said she subsequently found Indian court papers that showed Mr. Bagga and three members of his family were charged, and later acquitted, of attacking his wife with acid, causing injuries from which she died.
Mr. Bagga said that he and his family were all cleared after a thorough investigation. "There was no conviction," he said late last week from Ottawa. However, Ms. Bhandari said that Mr. Bagga did not disclose that there were charges pending against him when he applied for permanent resident status, answering "no" to the question that asked him if he'd been charged with any crime in any country.
Ms. Bhandari said she tried to bring this to the attention of the Immigration department before Mr. Bagga was able to get full Canadian citizenship but that her efforts were ignored.
Mr. Bagga said Ms. Bhandari filled in the form for him. "I wasn't used to filling in these forms and so signed whatever she put in," he said. He denied that he had entered into the marriage in bad faith just to get into Canada. "My marriage was never a fraud. I never wanted to come here--it was her idea. I had a good life and good job in India," he said.
The two have divorced. Mr. Bagga has since been granted Canadian citizenship.
Lawsuit Filed; Group seeks immigration changes
John Ivison, National Post
Reena Bhandari, a psychiatric nurse from Ottawa, feels she's been let down by Canada's immigration system.
She married an Indian widower called Manjeet Singh Bagga in August, 2001, after meeting him through a Sikh match-making Web site. Mr. Bagga and his daughter from his previous marriage arrived in Canada the following July, having been sponsored by Ms. Bhandari. But Ms. Bhandari said it was a marriage of convenience for Mr. Bagga, who was only interested in her money and the opportunity to gain Canadian citizenship.
She is part of a 100-member class-action lawsuit filed by an organization called Canadians Against Immigration Fraud that has been lodged against the federal government for failing to deport foreigners who misrepresent themselves and lure Canadians into marriage.
A lawyer for the case that has commenced at Federal Court, Julie Taub, wants the government to tighten up the Immigration and Refugee Protection Act so that it more closely mirrors laws in countries such as Australia and the United States. In Canada, there are no conditions that state the spouses even have to live together, while in other countries the authorities follow up to see if the marriage is genuine.
In Australia, permanent visas are not issued until a waiting period of two years and the spouses have to have been in a relationship for a year before lodging an application. The United States issues conditional permanent residence status, which requires spouses to prove that they did not get married to evade immigration laws after a two-year period. "It highlights a problem in the legislation that would be so easy to remedy to prevent a non-stop infusion of fraudsters," said Ms. Taub.
The government claims in its defence that it has 600 files involving immigration fraud and only a limited number of officers to process them.
In Ms. Bhandari's case, the marriage quickly descended into acrimony -- "I felt like I was being used as a bank machine. He was not interested in me -- money was his only priority," she said. The relationship eventually ended in April 2004, when Mr. Bagga said he had to return to India to deal with a court case. He had told Ms. Bhandari that his first wife had died in a car accident but she said she subsequently found Indian court papers that showed Mr. Bagga and three members of his family were charged, and later acquitted, of attacking his wife with acid, causing injuries from which she died.
Mr. Bagga said that he and his family were all cleared after a thorough investigation. "There was no conviction," he said late last week from Ottawa. However, Ms. Bhandari said that Mr. Bagga did not disclose that there were charges pending against him when he applied for permanent resident status, answering "no" to the question that asked him if he'd been charged with any crime in any country.
Ms. Bhandari said she tried to bring this to the attention of the Immigration department before Mr. Bagga was able to get full Canadian citizenship but that her efforts were ignored.
Mr. Bagga said Ms. Bhandari filled in the form for him. "I wasn't used to filling in these forms and so signed whatever she put in," he said. He denied that he had entered into the marriage in bad faith just to get into Canada. "My marriage was never a fraud. I never wanted to come here--it was her idea. I had a good life and good job in India," he said.
The two have divorced. Mr. Bagga has since been granted Canadian citizenship.
Saturday, March 7, 2009
CANADA: SUPREME COURT RESTORES DEPORTATION ORDER AGAINST STREET RACER
The Supreme Court of Canada yesterday restored the deportation against a street racer found guilty of manslaughter, who had argued that he should be allowed to remain in Canada based on "humanitarian and compassionate" reasons. His apparently "light" criminal conviction sparked outrage in British Columbia at the time.
Here is a summary of the decision. For those interested in the full text, it can be found at:
http://scc.lexum.umontreal.ca/cgi-bin/print.pl?referer=http://scc.lexum.umontreal.ca/en/2009/2009scc12/2009scc12.html
Canada (Citizenship and Immigration) v. Khosa
Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the federal court of appeal
K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14. In 2002, he was found guilty of criminal negligence causing death and received a conditional sentence of two years less a day. A valid removal order was issued to return him to India.
K appealed the order, but the majority of the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied “special relief” on humanitarian and compassionate grounds pursuant to s. 67(1)(c) of the Immigration and Refugee Protection Act (“IRPA”). A majority of the Federal Court of Appeal applied a “reasonableness” simpliciter standard and set aside the IAD decision. It found that the majority of the IAD had some kind of fixation with the fact that the offence was related to street‑racing. On the issue of the “possibility of rehabilitation”, the majority of the IAD merely acknowledged the findings of the criminal courts in that regard, which were favourable to K, and did not explain why it came to the contrary conclusion. In the end, that court concluded that the majority of the IAD had acted unreasonably in denying relief.
Held (Fish J. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ.: This Court’s decision in Dunsmuir, which was released after the decisions of the lower courts in this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision makers in matters that relate to their special role, function and expertise. A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication. These general principles of judicial review are not ousted by s. 18.1 of the Federal Courts Act which deals essentially with grounds of review of administrative action, not standards of review. [25]
A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters. [51]
Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision makers who operate in different decision‑making environments under different statutes with distinct grants of decision‑making powers. [28][33]
The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Despite a difference in the meaning of the English and French versions in the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court’s appreciation of the respective roles of the courts and the administration as well as the circumstances of each case. The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir. [36]
Dunsmuir establishes that there are now only two standards of review: correctness and reasonableness. No authority was cited suggesting that a “correctness” standard of review is appropriate for IAD decisions under s. 67(1)(c) of the IRPA, and the relevant factors in a standard of review inquiry point to a reasonableness standard. These factors include: (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1)(c) a power to grant exceptional relief and this provision calls for a fact‑dependent and policy‑driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy. These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. [53‑54][56‑57]
Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes. In this case, the question whether K had established “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts. [4][59]
The IAD reasons, both the majority and dissent, disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of K’s expression of remorse. This is the sort of factual dispute which should be resolved by the IAD not the courts. The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the circumstances of this case, discretionary relief should be refused. While the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), were properly noted, the IAD had a mandate different from that of the criminal courts. The issue before it was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other relevant factors, they warranted special discretionary relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence and it did so. [64‑66]
In light of the deference properly owed to the IAD under s. 67(1)(c) of the IRPA there was no proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case. It cannot be said that this decision fell outside the range of reasonable outcomes. [60][67]
Per Rothstein J.: Where a legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge. With respect to s. 18.1(4) of the Federal Courts Act, the language of para. (d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”. By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language, as it has in para. (d) regarding facts. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context. [70] [72] [113] [117]
While recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the Federal Courts Act. Courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis. The Dunsmuir standard of review should be confined to cases in which there is a strong privative clause. Excepting such cases, it does not apply to s. 18.1(4). The application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis. [70] [74] [106] [136]
The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system. The creation of expert administrative decision makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas, but it was only with the enactment of privative clauses, which marked the area of tribunal expertise that the legislature was satisfied warranted deference, that a legislature indicated an intent to oust, or at the very least restrict, the court’s review role. Whereas tribunal expertise was a compelling rationale for imposing a privative clause, it was not a free‑standing basis for deference. The approach of judicially imputing expertise which followed, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise. [79][82‑84][87]
There is no dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision makers on questions of fact and on questions involving mixed fact and law, where a legal issue cannot be extricated from a factual or policy finding. However, where a legal issue can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. It is not for the court to impute tribunal expertise on legal questions absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed. Recognizing expertise as a free‑standing basis for deference on questions that reviewing courts are normally considered to be expert on departs from the search for legislative intent that governs this area. [89] [90] [91] [93]
Concerns regarding the rigidity of the legislated standards are misplaced. A review of the Federal Courts Act makes clear that the focus of the analysis should be on the nature of the question under review and not on the type of administrative decision maker. Even given this legislative focus on the nature of question under review, not all administrative decision makers will be subject to the same standards of review. Where a decision maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted. [109‑110]
Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial review. The remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies which is wholly distinct from the common law of standard of review analysis. Reliance upon this discretion contained in s. 18.1(4) to support the view that it opens the door to the Dunsmuir standard of review analysis is inappropriate. [131] [135] [136]
The IAD’s decision not to grant relief in this case should be upheld. The application of the Ribic factors to the case before it and its exercise of discretion is fact‑based. The IAD’s factual findings were not perverse or capricious and were not made without regard to the evidence. [137]
Per Deschamps J.: There is agreement with Rothstein J. that since s. 18.1(4) of the Federal Courts Act sets legislated standards of review, those standards oust the common law. [138]
Per Fish J. (dissenting): The standard of review applicable is "reasonableness", and the IAD’s decision does not survive judicial scrutiny under that standard. The IAD’s task was to look to "all the circumstances of the case" in order to determine whether "sufficient humanitarian and compassionate considerations" existed to warrant relief from a removal order. The IAD placed the greatest weight on three factors: K’s remorse, rehabilitation, and likelihood of reoffence. Despite abundant evidence that K was extremely unlikely to reoffend and had taken responsibility for his actions, the IAD focussed on a single fact — K’s denial that he was “street racing” — and based its refusal to grant relief largely on that fact alone. While K’s denial may well evidence some “lack of insight”, it cannot be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. The IAD’s cursory treatment of the sentencing judge’s favourable findings on remorse and the risk of recidivism are particularly troubling. While a criminal court’s findings are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the sentencing judge’s decision. K’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence. The IAD’s conclusion that there was "insufficient evidence" upon which a determination could be made that K does not represent a risk to the public is not only incorrect, but unreasonable. Decisions of the IAD are entitled to deference, but deference ends where unreasonableness begins. [139‑40] [145] [147] [149‑151] [153‑154] [160]
Here is a summary of the decision. For those interested in the full text, it can be found at:
http://scc.lexum.umontreal.ca/cgi-bin/print.pl?referer=http://scc.lexum.umontreal.ca/en/2009/2009scc12/2009scc12.html
Canada (Citizenship and Immigration) v. Khosa
Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the federal court of appeal
K, a citizen of India, immigrated to Canada with his family in 1996, at the age of 14. In 2002, he was found guilty of criminal negligence causing death and received a conditional sentence of two years less a day. A valid removal order was issued to return him to India.
K appealed the order, but the majority of the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board, after considering the Ribic factors and the evidence, denied “special relief” on humanitarian and compassionate grounds pursuant to s. 67(1)(c) of the Immigration and Refugee Protection Act (“IRPA”). A majority of the Federal Court of Appeal applied a “reasonableness” simpliciter standard and set aside the IAD decision. It found that the majority of the IAD had some kind of fixation with the fact that the offence was related to street‑racing. On the issue of the “possibility of rehabilitation”, the majority of the IAD merely acknowledged the findings of the criminal courts in that regard, which were favourable to K, and did not explain why it came to the contrary conclusion. In the end, that court concluded that the majority of the IAD had acted unreasonably in denying relief.
Held (Fish J. dissenting): The appeal should be allowed.
Per McLachlin C.J. and Binnie, LeBel, Abella and Charron JJ.: This Court’s decision in Dunsmuir, which was released after the decisions of the lower courts in this case, recognized that, with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision has been allocated to administrative decision makers in matters that relate to their special role, function and expertise. A measure of deference is appropriate whether or not the court has been given the advantage of a statutory direction, explicit or by necessary implication. These general principles of judicial review are not ousted by s. 18.1 of the Federal Courts Act which deals essentially with grounds of review of administrative action, not standards of review. [25]
A legislature has the power to specify a standard of review if it manifests a clear intention to do so. However, where the legislative language permits, the court (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based in part on Dunsmuir including a restrained approach to judicial intervention in administrative matters. [51]
Resort to the flexibility of the general principle of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision makers who operate in different decision‑making environments under different statutes with distinct grants of decision‑making powers. [28][33]
The language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Despite a difference in the meaning of the English and French versions in the relevant language of s. 18.1(4), the provision should be interpreted to permit a court to exercise its discretion in matters of remedy depending on the court’s appreciation of the respective roles of the courts and the administration as well as the circumstances of each case. The discretion must be exercised judicially, but the appropriate judicial basis for its exercise includes the general principles dealt with in Dunsmuir. [36]
Dunsmuir establishes that there are now only two standards of review: correctness and reasonableness. No authority was cited suggesting that a “correctness” standard of review is appropriate for IAD decisions under s. 67(1)(c) of the IRPA, and the relevant factors in a standard of review inquiry point to a reasonableness standard. These factors include: (1) the presence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation — the IAD determines a wide range of appeals under the IRPA and its decisions are reviewable only if the Federal Court grants leave to commence judicial review; (3) the nature of the question at issue before the IAD — Parliament has provided in s. 67(1)(c) a power to grant exceptional relief and this provision calls for a fact‑dependent and policy‑driven assessment by the IAD itself; and (4) the expertise of the IAD dealing with immigration policy. These factors must be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. [53‑54][56‑57]
Where, as here, the reasonableness standard applies, it requires deference. Reviewing courts ought not to reweigh the evidence or substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of reasonable outcomes. In this case, the question whether K had established “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order was a decision which Parliament confided to the IAD, not to the courts. [4][59]
The IAD reasons, both the majority and dissent, disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of K’s expression of remorse. This is the sort of factual dispute which should be resolved by the IAD not the courts. The majority considered each of the Ribic factors, reviewed the evidence and decided that, in the circumstances of this case, discretionary relief should be refused. While the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), were properly noted, the IAD had a mandate different from that of the criminal courts. The issue before it was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other relevant factors, they warranted special discretionary relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence and it did so. [64‑66]
In light of the deference properly owed to the IAD under s. 67(1)(c) of the IRPA there was no proper basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case. It cannot be said that this decision fell outside the range of reasonable outcomes. [60][67]
Per Rothstein J.: Where a legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge. With respect to s. 18.1(4) of the Federal Courts Act, the language of para. (d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”. By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language, as it has in para. (d) regarding facts. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context. [70] [72] [113] [117]
While recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the Federal Courts Act. Courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis. The Dunsmuir standard of review should be confined to cases in which there is a strong privative clause. Excepting such cases, it does not apply to s. 18.1(4). The application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis. [70] [74] [106] [136]
The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system. The creation of expert administrative decision makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas, but it was only with the enactment of privative clauses, which marked the area of tribunal expertise that the legislature was satisfied warranted deference, that a legislature indicated an intent to oust, or at the very least restrict, the court’s review role. Whereas tribunal expertise was a compelling rationale for imposing a privative clause, it was not a free‑standing basis for deference. The approach of judicially imputing expertise which followed, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise. [79][82‑84][87]
There is no dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision makers on questions of fact and on questions involving mixed fact and law, where a legal issue cannot be extricated from a factual or policy finding. However, where a legal issue can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. It is not for the court to impute tribunal expertise on legal questions absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed. Recognizing expertise as a free‑standing basis for deference on questions that reviewing courts are normally considered to be expert on departs from the search for legislative intent that governs this area. [89] [90] [91] [93]
Concerns regarding the rigidity of the legislated standards are misplaced. A review of the Federal Courts Act makes clear that the focus of the analysis should be on the nature of the question under review and not on the type of administrative decision maker. Even given this legislative focus on the nature of question under review, not all administrative decision makers will be subject to the same standards of review. Where a decision maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted. [109‑110]
Section 18.1(4) confers on the Federal Courts the discretion to grant or deny relief in judicial review. The remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies which is wholly distinct from the common law of standard of review analysis. Reliance upon this discretion contained in s. 18.1(4) to support the view that it opens the door to the Dunsmuir standard of review analysis is inappropriate. [131] [135] [136]
The IAD’s decision not to grant relief in this case should be upheld. The application of the Ribic factors to the case before it and its exercise of discretion is fact‑based. The IAD’s factual findings were not perverse or capricious and were not made without regard to the evidence. [137]
Per Deschamps J.: There is agreement with Rothstein J. that since s. 18.1(4) of the Federal Courts Act sets legislated standards of review, those standards oust the common law. [138]
Per Fish J. (dissenting): The standard of review applicable is "reasonableness", and the IAD’s decision does not survive judicial scrutiny under that standard. The IAD’s task was to look to "all the circumstances of the case" in order to determine whether "sufficient humanitarian and compassionate considerations" existed to warrant relief from a removal order. The IAD placed the greatest weight on three factors: K’s remorse, rehabilitation, and likelihood of reoffence. Despite abundant evidence that K was extremely unlikely to reoffend and had taken responsibility for his actions, the IAD focussed on a single fact — K’s denial that he was “street racing” — and based its refusal to grant relief largely on that fact alone. While K’s denial may well evidence some “lack of insight”, it cannot be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. The IAD’s cursory treatment of the sentencing judge’s favourable findings on remorse and the risk of recidivism are particularly troubling. While a criminal court’s findings are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the sentencing judge’s decision. K’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence. The IAD’s conclusion that there was "insufficient evidence" upon which a determination could be made that K does not represent a risk to the public is not only incorrect, but unreasonable. Decisions of the IAD are entitled to deference, but deference ends where unreasonableness begins. [139‑40] [145] [147] [149‑151] [153‑154] [160]
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