Nguyen v. Canada (MCI) 2023 FC 845
In Nguyen v. Canada (MCI) Justice Southcott examined the Applicant’s Refugee Appeal Division (RAD) refusal. The Applicant was a citizen of Vietnam who had claimed asylum in Canada based on persecution due to his support of human rights organizations. Unfortunately, his claim was not successful, with the RAD dismissing the Applicant’s appeal as the evidence regarding his political profile was found to be inconsistent. The RAD also had concerns with the Applicant’s other documentary evidence, which included a warrant and summons. The determinative issue before Justice Southcott was the assessment of the Applicant’s credibility. On judicial review, Justice Southcott found that the RAD’s analysis was flawed when it came to the warrant. Given the potential probative value of the document, the RAD would not have dismissed the Applicant’s claim on credibility had it not erred in their assessment. The Application for leave was allowed.
Nwanze v. Canada (MCI) 2023 FC 844
In Nwanze v. Canada (MCI) Justice Elliot assessed the Applicants’ Refugee Appeal Division (RAD) refusal. The Applicants were a family of five hailing from Nigeria, who sought asylum in Canada after they were being actively sought out by a traditional ruler from their town who had attempted to force their minor daughter (at that time) into marriage. The Applicants had submitted evidence that the ruler was still actively seeking out their daughter, to marry her, and was offering a reward to anyone who could help him locate her and her family. While the RPD accepted that the ruler intended to marry the daughter, the RPD noted that an Internal Flight Alternative (IFA) existed in Benin City. The RAD had considered a new issue at the appeal, whether there was objective basis for the Applicants’ claim. The RAD concluded that the RPD had erred in finding that the ruler would not locate the Applicants in Benin City, however deemed this as not a determinative issue as no objective basis for the Applicants’ claim was established. On judicial review, Justice Elliot found that the RAD had failed to carefully consider the country condition evidence, including an NDP document that had stated the consequences of refusing forced marriages. While the RAD had cited this document as evidence that child marriage were illegal, it failed to reference and address the consequences of refusing such a marriage. Considering the facts of the claim, Justice Elliot found the RAD’s finding that there was insufficient evidence of the ruler’s intention to harm the daughter to be lacking in logic and transparency. Moreover, Justice Elliot found that the RAD failed to address the daughter’s distinct risk, separate from her family. The Application for leave was allowed.
Ortiz De La Cruz v. Canada (MCI) 2023 FC 827
In Ortiz De La Cruz v. Canada (MCI) Justice Elliot reviewed the Officer’s decision to refuse the Applicant’s Humanitarian and Compassionate (H&C) application. The Applicant was a citizen of Dominican Republic who had fled to Canada in 2014 due to severe domestic abuse from her former partner. She had left behind her 5-month-old son with the care of her mother. She arrived in Canada on a study permit. In 2017 she welcomed a second child, as a single mom. In 2019, the Applicant had submitted an H&C, which was rejected. On judicial review, the best interests of the child (BIOC) was the definitive issue. Justice Elliot noted that the Officer took the hardship- centric approach and cited a lack of hardship several times in the context of BIOC. Justice Elliot noted that the Officer’s BIOC analysis was undermined by errors, including speculation that any hardships faced by the child would be mitigated by their young age, and that the child’s half-brother and grandmother would be able to provide support. The Application for leave was allowed.
Garces v. Canada (MPSEP) 2023 FC 798
In Garces v. Canada (MPSEP) Justice Grammond examined the Applicants’ ineligibility finding, pursuant to s. 101(1)(c.1) of IRPA. The Applicants were unaccompanied minors (ages 14 and 11), who had signed forms to claim refugee status in the United States (US). There was no indication of a designated representative on file, or that their mother participated in the process. In 2018, the Applicants had withdrawn their US claim, to be reunited with their mother in Canada (the following year). The Minister had found them ineligible to make their claim due to their prior claims in the US. On judicial review, Justice Grammond found that the Minister’s counsel had failed to explain how two minors, who lacked legal capacity, could make a claim pursuant to s. 101(1)(c.1) of IRPA. Relying on international law, which Justice Grammond accepted as relevant, the Applicants highlighted the vulnerable position of unaccompanied minors, and that the solution provided by Canadian law, was the appointment of a designated representative. This was relevant to the interpretation and application of s. 101(1)(c.1) of IRPA, as it was part of the legal landscape that constrained the decision maker. Justice Grammond found that the Minister failed to address the issue of the Applicants’ legal capacity to make the claim, despite legal constraints placed on the Applicants’ decision-making power. This rendered the decision unreasonable. The Application for leave was allowed. Justice Grammond had also declined to certify a proposed question.
Li v. Canada (MCI) 2023 FC 792
In Li v. Canada (MCI) Justice Ahmed assessed the Refugee Protection Division’s (RPD) cessation decision pursuant to 108(1)(a) of IRPA. The Applicant was a citizen of China who was granted refugee protection in 2010. The Applicant had fled China fearing persecution from the Public Security Bureau (PSB) due to his spiritual practices of Guan Yi Method (GYM). The RPD found that the Applicant had reavailed himself of his protected person status by returning to China on several occasions and obtaining a Chinese passport. On judicial review, the Applicant had argued that the RPD had failed to properly assess his lack of knowledge of the implications and consequences of returning to China. Justice Ahmed agreed. Justice Ahmed found the RPD’s failure to meaningfully engage with the issue made the decision unreasonable. Referencing the Federal Court of Appeal decision in Galindo Camayo, Justice Ahmed cited that the Applicant’s knowledge is a “key factual consideration that the RPD must either weigh in the mix with all the other evidence, or properly explain why the status excludes its consideration.” (par. 70) Justice Ahmed also disagreed with the Minister’s presumption that the Applicant should have been aware of the consequences, given the Applicant’s sophistication and education. Galindo Camayo (par.67) had rejected this similar argument and found it to be “missing the point”. The same reasoning in Galindo Camayo was applied to this decision by Justice Ahmed. The Application for leave was allowed.