Tkabo v. Canada (MCI) 2023 FC 15
In Tkabo v. Canada (MCI), Justice Elliott examined both the Refugee Protection Division’s (RPD) and the Refugee Appeal Division’s (RAD) decisions to refuse the Applicant’s claim based on lack of credibility with respect to the Applicant’s identity. On judicial review, Justice Elliot found that the RAD failed to take into consideration several identity documents provided, as well as the Applicant’s testimony. Justice Elliot also observed the RAD chose to single out specific information with respect to identity from the National Document Package (NDP), that was in favour of their finding. Justice Elliot concluded by finding that the above errors were sufficiently serious in their shortcomings, making the RAD’s decision unreasonable. The application for Leave and Judicial Review was allowed.
Izumi v. Canada (MCI) 2023 FC 1
In Izumi v. Canada (MCI), Justice Ahmed assessed the Officer’s decision to refuse the reconsideration of the Applicant’s Humanitarian and Compassionate (H&C) Application on the grounds lack of inadequate psychological evidence. The Applicant was a domestic violence survivor. She suffered years of abuse at the hands of her own father, who was now deceased. After undergoing psychological assessment, the Applicant was diagnosed with a stressor-related disorder with prolonged duration, with dissociative and stress-response symptoms, requiring ongoing mental health treatment. On judicial review, Justice Ahmed noted that while the Officer had indicated that they had given “substantive weight” to the psychological assessment, the decision reflected a lack of consideration to the true extent of the impact of the abuse on the Applicant, and therefore contained gaps in reasoning. Justice Ahmed argued that the Officer had undermined the psychological evidence due to the assessment being based of one visit and performed at the request of the counsel. Justice Ahmed found that this fact was irrelevant to the assessment of the risk to the Applicant’s health should she be forced to return to her home country. Furthermore, Justice Ahmed took issue with the Officer’s assertion that the psychologist’s opinion of the Applicant’s mental health being negatively affected by removal was speculative. Firstly, this finding unfairly undermined the credibility of the report as it was based on unsupported claim. Secondly, this finding constituted “a failure to account for the foundation of the Applicant’s claim and reflects a narrow lens of the effects of domestic abuse on survivors, unfairly assuming that a risk to a survivor’s wellbeing is strictly connected to the risk of further physical harm” (at para. 41) Justice Ahmed concluded that the Officer’s reasoning resulted in an unfair preposition that the lasting impact of abuse is reserved for continued threat of physical violence, and thereby ignoring the significant psychological impact that abuse leaves behind. Justice Ahmed found this to be an unreasonable line of reasoning and it failed to address the consequences of removal of the applicant. The application for Leave and Judicial Review was allowed.
Ganeswaran v. Canada (MCI) 2022 FC 1797
In Ganeswaran v. Canada (MCI) Justice Sadrehashemi examined the Refugee Protection Division’s (RPD) decision to proceed with the Minister’s application to vacate the Applicants’ Convention refugee status. The Applicants arrived in Canada in 2007, and the following year were accepted as Convention refugees through expedited processing. A month after the decision, immigration officials discovered that the family had not directly travelled from their country of origin, but had resided for many years in Switzerland, where all their children were born. An immigration officer had indicated their intent to request vacation of status, but no subsequent steps were taken. The Applicants had filed an application for permanent residence, and while no decision was made on their application, neither had they been contacted about their refugee status for almost 10 years. It was not until 2018 that the Minister filed an application to vacate their status. The RPD found that although no reason was provided for the 10-year delay, the application could still proceed as the Applicants had failed to show significant prejudice due to the delay, and because any prejudice they might experience did not outweigh public interest in proceeding with the vacation application. The RPD granted the Minister’s application. On judicial review, Justice Sadrehashemi addressed the main issue of procedural fairness and whether there had been an abuse of process to proceed with the application despite the Minister’s almost 10-year delay. When examining the matter of procedural fairness, Justice Sadrehashemi focused not on the merit of the vacation decision but rather “whether the RPD would bring the administration of justice into disrepute by proceeding with the vacation application where there has been delay in bringing the application” (at para. 25). Justice Sadrehashemi referred to Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 in his decision, a case that held that in the administrative context, where delay has not affected the fairness of the hearing, the following three steps determine whether delay amounts to an abuse of process: 1) the delay must be inordinate; 2) the delay must have caused significant prejudice; and 3) where the first two requirements are met, the court or tribunal should conduct a final assessment as to whether abuse of process is established. Considering the above, Justice Sadrehashemi agreed with the RPD that the delay was inordinate, and the Minister failed to provide adequate reasons for why it took almost a decade to bring forward this application. Furthermore, Justice Sadrehashemi confirmed that the Minister’s inordinate delay resulted in significant prejudice. While Justice Sadrehashemi found that the Applicants did not make out significant prejudice due to legislative change, with respect to the grounds of family integration, the prejudice resulted directly from the Minister’s delay and that the benefit of the family remaining in Canada and the prejudice faced were tied together and directly proportional. Finally, Justice Sadrehashemi found that the inordinate delay in this case was manifestly unfair to the Applicants and brought the administration of justice into dispute. “The Minister brings the administration of justice into disrepute by not proceeding for almost ten years, while the minor Applicants grew up in Canada, and then, based on no new information and without explanation as to the timing, deciding to bring an application to vacate their refugee status. It is unacceptable. In my view, the only appropriate remedy to the abuse of process in this case is to quash the vacation decision and not remit it for redetermination, which amounts to a stay of proceedings” (at para. 61). In conclusion, Justice Sadrehashemi found that allowing this application to vacate would cause more harm to public interest than permanently staying the decision. The Application for judicial review was granted and the RPD’s decision to vacate the Applicant’s status was quashed.
Pantoja v. Canada (MCI) 2022 FC 1790
In Pantoja v. Canada (MCI) Justice Lafrenière examined the Refugee Appeal Division’s (RAD) decision to refuse the Applicant’s appeal due to the exitance of a viable IFA. The Applicants had unsuccessfully sought asylum from persecution and threats faced from the Jalisco Nueva Generación Cartel (CJNG). On judicial review, Justice Lafrenière focused on the determinative issue of whether the RAD reasonable determined that the Applicants’ agents of persecution lacked the means and motivation to locate them in the proposed IFAs. Justice Lafrenière found that the RAD failed to consider their own Response to Information Request (RIF) Report on the ability of the CJNG group to track people and the strategic alliance they held with groups in other regions. Justice Lafrenière concluded that the RAD either misapprehended or selectively read the evidence, disregarding the evidence of the CJNG’s alliance with various groups in various locales. The Application for judicial review was granted and the matter was sent back for redetermination.