Sharma v. Canada (MCI) 2023 FC 1034
In Sharma v. Canada (MCI), Justice Aylen assessed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant originally sought asylum in Canada based on fear of persecution by a Hindu-nationalist paramilitary organization, the Rashtriya Sangh [RSS] and the police. The Refugee Protection Division (RPD) denied the claim, and the RAD dismissed the appeal due to availability of internal flight alternatives (IFA) in Chennai and Trivandrum, India. The RAD argued that the RSS lacked the lacked the motivation to search and pursue the Applicant in the IFA locations. This determination was based of an inconsistency in the Applicant’s evidence regarding an attack on his family. On judicial review, Justice Aylen found the RAD’s reasoning for the RSS’ lack of motivation to pursue the Applicant constituted as a new issue, which the RAD had failed to allow the Applicant to respond to. Justice Aylen found this to be a denial of procedural fairness. The application for leave was allowed.
Bhuchung v. Canada (MCI) 2023 FC 1009
In Bhuchung v. Canada (MCI), Justice Norris examined the Applicant’s vacation of status decision. The Applicant had successfully made a refugee claim in 2006 in which he identified himself as a Bhuchang, a citizen of Tibet, who was born in Dhungri, Tibet in July 1967. His claim was based on fear of persecution in China as a result of his Buddhist faith and support for a free Tibet. In 2019, the Minister filed a vacation of Convention refugee status application on grounds of misrepresentation of personal and national identity. The Minister had argued that the Applicant was a Nanang Chhokle Sherpa, a citizen of Nepal who was born in Kathmandu, Nepal in June 1975. The Refugee Protection Division (RPD) found the new evidence provided by the Applicant to establish his identity to be inadmissible and allowed the Minister’s vacation application. On judicial review, Justice Norris found that the RPD’s determination was based on erroneous application of principals governing the evidence. Referencing to Bafakih, 2022 FCA 18, Justice Norris noted that the Federal Court of Appeal held that while new evidence is not permitted under s. 109(2) of IRPA to uphold the original determination, it is permitted under s.109(1)of IRPA to show that no misrepresentation occurred. Justice Norris acknowledged that the RPD did not have the benefit of Bafakih, this decision confirmed the well established principles governing evidence. The Applicant was entitled to put forth evidence that was responsive to the Minister’s allegations. The application for leave was allowed.
Tuz v. Canada (MCI) 2023 FC 1001
In Tuz v. Canada (MCI), Justice Strickland reviewed the Applicants’ Refugee Appeal Division (RAD) decision. The Principal Applicant (PA) and his family were citizens of Mexico who feared persecution by the Los Zetas, as the PA refused an extortion demand. The PA was also of Mayan descent. The Refugee Protection Division (RPD) found that the Applicants’ claim was not aligned with a Convention ground, nor had they established fear of persecution for any other Convention ground. The RAD also found that the Applicants had a viable internal flight alternative (IFA) in Durango, Mexico. On judicial review, Justice Strickland found that the RAD had failed to consider the relevant evidence when determining whether the Applicants would experience discrimination in the IFA, given the evidence to the contrary. The RAD had also failed to consider documentary evidence provided by the PA that supported his claim that he would face discrimination in accessing employment in the IFA due to his ethnicity. Moreover, Justice Strickland found that the RAD failed to engage with the Applicants’ submission regarding the minor applicants and the discrimination they would be subject to in the IFA. Given that the RAD failed to engage with certain evidence regarding ethnic discrimination in the IFA, Justice Strickland deemed the decision unreasonable. The application for leave was allowed.
Maheswaran v. Canada (MCI) 2023 FC 1003
In Maheswaran v. Canada (MCI), Justice Pentney explored the Applicant’s Humanitarian and Compassionate (H&C) Application decision. The Applicant was a Tamil from the North of Sri Lanka, whose claim for asylum was denied in 2011. Since then, the Applicant had lived and worked in Canada under various work permits. In 2019, the Applicant submitted an H&C application, which was ultimately refused. The Officer had given strong positive weight to the Applicant’s length of time in Canada, clean civil record, and compliance with Canadian immigration laws. The Officer also highlighted the Applicant’s full-time and seasonal work, as well as his commitment to personal development. Nevertheless, the Officer noted that the Applicant did not show that he would be unable to secure employment in Sri Lanka, nor did he address a gap in his employment history. Based on the aforementioned, the Officer assigned little weight to the Applicant’s employment history. On judicial review, Justice Pentney found that the determinative issue was that of the employment gap, and how such a relatively short gap could outweigh all the positive establishment factors. Justice Pentney concluded that the decision was marred by this unexplained leap of logic, rendering the decision unreasonable. The application for leave was allowed.
Arora v. Canada (MCI) 2023 FC 1002
In Arora v. Canada (MCI), Justice Sadrehashemi assessed the Applicants’ Humanitarian and Compassionate (H&C) Application decision and whether the Officer reasonably addressed the best interests of the children (BIOC). On judicial review, Justice Sadrehashemi found that the Officer failed to grapple with the BIOC issues raised by the Applicants, minimizing the Applicants’ concerns rather than dealing directly with the submissions and evidence. Justice Sadrehashemi noted that the Officer had distorted the BIOC test, asking whether the adverse county conditions in India “automatically equate to a significant detriment to the best interests of the child.” Phrasing the question in such a way narrowed the Officer’s consideration of relevant factors. Furthermore, the approach that no country is without crime or negative factors that could affect a child, only highlighted the lack of genuine engagement by the Officer. The Officer’s failure to give due consideration to BIOC factors rendered the decision unreasonable. The application for leave was allowed.
Norsang v. Canada (MCI) 2023 FC 998
In Norsang v. Canada (MCI), Justice Go examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was born in India in 1993 and was a Tibetan citizen of China. His mother was born in India in 1966 and his father was born in Tibet. The Applicant sought asylum in Canada, based on fear of persecution in China. However, the Refugee Protection Division (RPD) rejected the Applicant’s claim after determining that the country of reference was India, not China, as citizenship was available for acquisition to the Applicant. On appeal at the RAD, the Applicant argued that his access to Indian citizenship hindered on the citizenship of his parents and was therefore out of his control. The RAD argued that the Applicant’s mother was an Indian citizen by birth, and in accordance with Indian law, the Applicant was a citizen of India both by birth and his mother’s citizenship. The RAD did not accept the Applicant’s argument that his access to Indian citizenship was out of his control. On judicial review, Justice Go found that the determinative issue was whether the RAD’s finding that India was the appropriate country of reference was reasonable. Justice Go found that the RAD had made two reviewable errors. First, the RAD had relied on selective parts of the Applicant’s mother’s affidavit, ignoring evidence in the same document that was contradictory, namely the mother’s failed attempts to acquire Indian citizenship. Second, the RAD misapplied the test in Tretsetsang, which stated that the decision maker must first consider if there are any impediments that prevent the Applicant from exercising their rights to citizenship. By finding that the Applicant’s access to citizenship was “within his control” the RAD overlooked the evidence of his mother’s failed attempts to acquire citizenship, which constituted as a “significant impediment.” By failing to address this matter, the RAD could not have made the assessment of whether the Applicant acted reasonably by not applying for citizenship. The application for leave was allowed.
Talukder v. Canada (MCI) 2023 FC 991
In Talukder v. Canada (MCI), Justice Ahmed reviewed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant sought asylum based on fear of persecution from the Awami League (AL) and Jama’atul Mujahideen Bangladesh (JMB). The Applicant’s claim was rejected because of significant inconsistencies, discrepancies, and vagueness of the Applicant’s testimony. The Refugee Protection Division (RPD) found that the corroborative evidence was insufficient to outweigh the credibility concerns and noted the availability of fraudulent documents in Bangladesh. On appeal, the RAD upheld the RPD’s decision. On judicial review, Justice Ahmed found that the RAD had erred in their decision by failing to consider the Applicant’s medical and corroborative evidence. Justice Ahmed noted that “It is illogical to find that the evidence speaking to the Applicant’s forgetfulness and inability to recall details of events is irrelevant to the credibility findings because the latter were based on contradictions and inconsistencies. An inability to recall certain details and the forgetfulness resulting from anxiety and depression are directly connected to the Applicant being unclear or providing inconsistent information about how certain events transpired. The medical evidence explicitly speaks to the Applicant’s inability to recall details when recalling the events that transpired in Bangladesh, and a dismissal of this issue reflects a “failure to meaningfully grapple with key issues,” rendering this finding unreasonable” (at para. 33). Moreover, Justice Ahmed found that testifying before the RPD was entirely different trial for the Applicant than being assessed by a psychotherapist. It was unintelligible for the RAD to equate the psychotherapist’s report to the RAD finding that the symptoms associated with the Applicant’s mental health did not explain the inconsistencies in his narrative. Justice Ahmed also found that the RAD failed to examine the Applicant’s corroborative evidence independent of credibility concerns. Moreover, the availability of fraudulent documents in Bangladesh was not sufficient to cast doubt on the credibility of the Applicant’s documentary evidence. The application for leave was allowed.
Sanmugarasa v. Canada (MCI) 2023 FC 974
In Sanmugarasa v. Canada (MCI), Justice Go explored the Applicant’s Refugee Protection Division (RPD) decision. The Applicant was a citizen of Sri Lanka whose asylum claim was rejected. On judicial review, Justice Go found that the RPD made several unreasonable credibility findings. Firstly, the RPD erred by calling into question the Applicant’s testimony due to his inability to recall exactly when he began to accompany his mother to demonstrations for missing Tamils. Second, the RPD erred in finding inconsistencies where there were none (regarding the army’s visits to the Applicant’s home). Third, the RPD erred by making an unfound implausibility finding when it stated that “given the alleged significant interest in the claimant, the Sri Lankan authorities made no attempt to locate him at Mullaitivu despite knowing that he was living and fishing there, on the balance of probabilities.” The Applicant had given evidence that he was not registered in Mullaitivu, with his registered address remaining to be Trincomalee. The RPD did not clarify why it was unbelievable, or “outside the realm of what could be reasonable expected”, that the authorities would search for him at his registered address. Finally, the RPD erred by making credibility findings on marginal issues and minute inconsistencies. The application for leave was allowed.