Alajnf v. Canada (MCI) 2023 FC 151
In Alajnf v. Canada (MCI) Justice Norris examined the Office’s decision to refuse the Applicants’ Humanitarian and Compassionate (H&C) application due to lack of evidence of personalized hardship in Libya. On judicial review, Justice Norris found that the Officer had failed to take into consideration of whether the adverse country conditions in Libya could reasonably infer that the Applicants would suffer significant hardship. Furthermore, Justice Norris found that the Officer erred when he unreasonably concluded that H&C relief was not warranted as the Applicants had failed to show that alternate pathways to permanent residence were not available to them in the future. The application for leave and judicial review was allowed.
Ahsan v. Canada (MCI) 2023 FC 146
In Ahsan v. Canada (MCI) Justice McHaffie assed the Officer’s decision to refuse the Applicants’ Humanitarian and Compassionate (H&C) application due to insufficient H&C grounds, relying heavily on the RPD finding that an internal flight alternative (IFA) existed. The Applicants had originally sought refugee protection in 2018 on the grounds of threats faced from Islamist due to their Barelvi Muslim identity and support. While their allegations were accepted, the RPD concluded that an IFA existed, and their claim was refused. They submitted an H&C application, highlighting numerous factors, including the mental conditions of the parents and the eldest son, which were backed up by a variety of psychological evidence. On judicial, Justice McHaffie found that the Officer’s treatment of the psychological evidence was unreasonable on the same grounds as those outlined by the Supreme Court in Kanthasamy. In this case, the mental health concerns were a material part of the application and were supported by professional reports and submissions. Justice McHaffie found that the Officer would not have necessarily reached the same conclusion if a proper analysis of the psychological evidence was done. The application for leave and judicial review was allowed.
Discua v. Canada (MCI) 2023 FC 137
In Discua v. Canada (MCI) Justice Norris reviewed the Refugee Protection Division’s (RPD) decision to reject the Applicants’ claim on the basis of failing to establish their identity and on credibility of the Principal Applicant (PA). On judicial review, the Applicants argued that they had received ineffective assistance from their counsel. Justice Norris proceed to set out the framework to be used to assess the allegations of ineffectiveness of counsel. Firstly, a prerequisite to having the issue considered by the reviewing Court, the former counsel must have had reasonable opportunity to respond to the allegations. Second, on the merits of the allegations, the Applicants must prove that the conduct of the former counsel was negligent or incompetent, and that this resulted in a miscarriage of justice. With respect to the case at hand, Justice Norris found that despite the Applicant’s failure to comply with the above protocols to the letter, the Court was satisfied that it had been complied in substance. When addressing the former counsel’s incompetence, Justice Norris was satisfied that the former counsel had failed to advise the PA about the potential inefficiency of birth certificates as evidence of identity and failed to submit a copy of the PA’s national identity card to the RPD. Justice Norris went on to find that the failings of the former counsel resulted in a miscarriage of justice. If the former counsel had submitted a copy of the PA’s national identity card, there is a reasonable probability that the RPD would not have found that the Applicants had failed to establish their identity. Furthermore, failure to submit evidence which was available to counsel compromised the fairness of the Applicants’ hearing. Justice Norris also stated that while the ineffectiveness of counsel was enough to warrant a new hearing, it was also unreasonable for the RPD to find fault with the PA because she did not attempt to obtain a Honduran passport once in Canada. In essence, the RPD faulted the Applicant for failing to take a step that would have made it materially more difficult for her to establish her claim for asylum in Canada. This was not reasonable grounds for an adverse credibility finding. The application for leave and judicial review was allowed.
Martins v. Canada (MCI) 2023 FC 128
In Martins v. Canada (MCI) Justice Gleeson examined the Officer’s decision to refuse the Applicant’s Humanitarian and Compassionate (H&C) application. The Applicant had several physical, cognitive, and psychological disabilities. The Applicant came to reside with his brother in Canada, in 2011, after their mother became unwilling an unable to care for the Applicant in Portugal. The Applicant continued to reside with his brother, despite the expiry of his visitor status, and put forward an H&C application to regulate his status in Canada. In support of the application, the brother had submitted a detailed affidavit that outlined the Applicant’s circumstances; his physical, cognitive, and behavioural issues; the impact these issues have had on the Applicant’s social development; the challenges that their mother had in caring for the Applicant; the support provided to the Applicant by his brother in Canada; and the role the Applicant played in his brother’s family and business in Canada. The Applicant’s entire lifestyle was dependant on the support and care he received from his brother. Despite the above circumstances, the H&C was refused. On judicial review, Justice Gleeson noted that while the Officer had accepted majority of the Applicant’s evidence without reservation, the Officer failed sufficiently probe the evidence as it related to the Applicant’s disabilities and dependency. This failure to grapple with the evidence undermined the intelligibility of the Officer’s consideration of the identified H&C factors, and thus, the weight assigned to those factors. Additionally, the Officer’s failure to address the Applicant’s dependency on his brother when considering BIOC, resulted in this aspect of the of the Officer’s decision to be unreasonable. Justice Gleeson concluded by stating that the BIOC analysis was requested not due to the age of the Applicant but rather his dependency. In limiting the analysis to just the age, the decision was not responsive to the Applicant’s main submissions. The application for leave and judicial review was allowed.
Bindra v. Canada (MCI) 2023 FC 119
In Bindra v. Canada (MCI) Justice Southcott assessed the Officer’s decision to refuse the Applicant’s Humanitarian and Compassionate (H&C) application. The Applicant is an elderly citizen of India, who was in Canada on a supervisa and put forward an H&C application. The Applicant claimed that her son was her only immediate family in Canada who was able to care for her, coupled with the close bond and attachment she had formed with her grandchildren. In contrast, the Applicant faced isolation in India, with a lack of care and support, and adverse country conditions, should she be forced to return home. On judicial review, Justice Southcott found that when it came to the analysis of the country condition evidence, the Officer solely focused on whether the Applicant was personally targeted in the past and had failed to establish that the Applicant would be targeted in the future. This is not a relevant test for an H&C application. Justice Southcott found the decision to be unreasonable as the Officer had failed to do a broader analysis of the Applicant’s hardship based on country conditions. The application for leave and judicial review was allowed.
Gnanasekaran v. Canada (MCI) 2023 FC 79
In Gnanasekaran v. Canada (MCI) Justice Walker examined the Refugee Appeal Division’s (RAD) decision to refuse the Applicant’s appeal of his refused claim for asylum. The Applicant had initially claimed asylum based on his fear of the Indian authorities as a suspected LTTE supporter, despite himself having no connection to the political party. After the 2019 Easter bombing in Sri Lanka, while the Applicant was in Canada, Indian authorities visited the Applicant’s wife’s home in India and ordered her to hand over the Applicant to the authorities upon his return. The Applicant filed a refugee claim in June 2019, which was shortly after refused. Upon appeal, while the RAD allowed for new evidence to be submitted, the RAD refused the Applicant’s request for an oral hearing and dismissed the appeal. On judicial review, Justice Walker found that the RAD had provided the Applicant with no reason as to why no oral hearing could be held. The RAD had simply stated three legislative criteria in s.110(6) of the IRPA, and stated a peremptory conclusion. Justice Walker concluded that the RAD made a significant error in its omission of reasons for refusing to hold an oral hearing, and in doing so justified the Court’s intervention. The application for leave and judicial review was allowed.