Mason v. Canada (MCI) 2023 SCC 21
In Mason v. Canada (MCI), Justice Wagner C.J., Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, and O’Bonsawin J.J. explored the statutory interpretation of provisions under s.34(1)(e) of IRPA. Under this provision, permanent residents and foreign nationals are found inadmissible to Canada on “security grounds” for “engaging in acts of violence that would or might endanger the loves or safety of persons in Canada.” The key point of discord between the administrative decision makers and the Courts was whether “acts of violence” listed as “security grounds” in s.34(1)(e) of IRPA required a link to national security or the security of Canada, or whether s.34(1)(e) of IRPA applied to acts of violence more broadly. Both administrative decision under review interpreted s.34(1)(e) of IRPA as not requiring the acts of violence to have a link to national security and the security of Canada. The Federal Court allowed the applications, ruling that it was unreasonable to interpret s.34(1)(e) of IRPA as applying to acts of violence without a connection to national security. The Federal Court of Appeal (FCA) allowed both applications, ruling that is was reasonable for the administrative decision maker to interpret s.34(1)(e) of IRPA as not requiring a connection to national security.
The Supreme Court identified that the first issue was what standard of review should have applied when reviewing administrative decisions. Justice Jamal concluded that the standard of review for the administrative decisions was reasonableness; The standard of review is presumptive reasonableness, with none of the established exceptions applying in this case, and the certified question regime under IRPA not displacing the presumption. The second issue was how the standard of review should have been applied. The Supreme Court found that the IAD failed to: 1) consider critical points of statutory context; 2) address the potentially broad consequences of its interpretation; and 3) interpret and apply s.34(1)(e) in compliance with international human rights instruments. The IAD’s failure to consider these three legal constraints rendered the decision unreasonable. The Supreme Court allowed both appeals, setting aside the decision of the FCA, and quashing the administrative decisions. Concurrently, Justice Côté agreed that s.34(1)(e) requires a connection between the relevant act of violence and national security.. However, Justice Côté would have reviewed the decisions on a standard of correctness and would have recognized a new category of correctness review: when appellate Courts decide a “serious question of general importance” certified under s. 74(d) of IRPA.
Mabuya v. Canada (MCI) 2023 FC 1290
In Mabuya v. Canada (MCI), Justice O’Reilly reviewed the Applicant’s sponsorship refusal. The Applicant and her sister were dependants on their mother’s permanent residence application. Due to the Applicant’s HIV-positive status, there were delays in processing, and the mother removed the Applicant from her application in 2011. The mother was able to successfully obtain permanent residence. In 2018 the Applicant’s mother attempted to sponsor the Applicant, but the Officer refused the application: 1) finding the Applicant not to be a member of the Family Class; 2) the Humanitarian and Compassionate (H&C) factors to be unpersuasive; and 3) for failing to provide biometric information and a police certificate.
The Applicant’s H&C factors included: 1) significant hardship due to prolonged separation, which was exacerbated by the inability to travel during COVID; 2) if the Applicant was found medically inadmissible and remained on the application, the Applicant’s mother’s permanent residence application would not be successful; 3) HIV positive persons in Zimbabwe experience widespread discrimination and stigma; 4) Zimbabwe is plagued by unstable economic and political conditions; and 5) The Applicant’s sister has grown up with limited opportunities to get to visit or get to know the Applicant.
On judicial review, Justice O’Reilly found that the Officer’s decision failed to properly grapple with the H&C factors raised by the Applicant. The Officer’s decision heavily relied on the fact that the Applicant’s mother had removed her from the 2008 permanent residence application- suggesting that the separation was a result of voluntary choice. However, the decision was the result of the duress of the circumstances- the Applicant’s mother had to proceed alone to succeed with her permanent residence application. Regardless, the hardship of separation was no less acute because it had resulted from a difficult choice. The Officer’s decision also discounted other relevant factors, including best interests of the Applicant’s younger sister. This reasoning did not align with the Officer’s obligation to give substantive weight to the best interests of the child and be sensitive to them. As a result of the unreasonable treatment of the H&C factors, the decision was set aside. The application for leave was allowed.
Ceki v. Canada (MCI) 2023 FC 1284
In Ceki v. Canada (MCI), Justice Strickland examined the Applicant’s cessation decision. The Applicant came to Canada in 2017 and successfully claimed asylum on the grounds that she feared persecution in Turkey due to being a politically active Alevi Kurd. The Applicant became a permanent resident in 2019. In 2021, the Minister brough a cessation application against the Applicant. In support of the cessation application, the Minister submitted evidence that included that the Applicant had entered Canada on June 26, 2017 (originally), on August 27, 2020, and on January 10, 2021. On August 27, 2020, the Applicant had used a Turkish passport that was issued in 2019 by the Turkish Consulate in Toronto and was in possession of a new Turkish National ID, as well as a marriage certificate that indicated her being married in March 2020 at the Turkish Embassy in Kiev, Ukraine. On January 10, 2021, when the Applicant was returning from Turkey, she was also in possession of a new Turkish National ID and Turkish Driver’s License. The RPD granted the Minister’s application.
On judicial review, Justice Strickland found the determinative issue was whether the RPD had erred by failing to consider the state of the Applicant’s knowledge with respect to cessation provisions. The audio recording of the cessation hearing indicated that the Applicant provided evidence that none of her lawyers had informed her that she could lose her permanent resident status should she obtain a Turkish National ID, passport, or return to Turkey. The Applicant testified that she only became aware of the risks in 2021. Justice Strickland argued that the RPD was required to consider all available evidence on this but did not do so. Although no one factor is necessarily dispositive, the RPD’s failure to consider the Applicant’s evidence on this factor rendered the decision unreasonable. The application for leave was allowed.
Daly v. Canada (MIRC) 2023 FC 1251
In Daly v. Canada (MIRC), Justice Sadrehashemi reviewed the Applicant’s Pre-Removal Risk Assessment (PRRA) application. The Applicant had been residing in Canada since he was one. For most of his adult life, the Applicant had been homeless and struggled with addiction to crack cocaine. After being convicted of several serious criminal offences, the Applicant now faced deportation to Jamaica. The Applicant submitted a PRRA application, which was refused. On judicial review, Justice Sadrehashemi found the determinative issue to be the Officer’s analysis of the Applicant’s risk in Jamaican prisons. The Applicant had argued that he faced risk in Jamaica due to him: 1) returning to Jamaica as a deportee; 2) being homeless; 3) without family; 4) living with a mental illness; and 5) living with an addiction to drugs. The Officer did not raise any concerns with the Applicant’s argument that because of these factors the Applicant would most likely end up in the Jamaican prison. However, the Officer gave minimal weight to the risk the Applicant would face. Justice Sadrehashemi argued that given the Officer’s findings on the nature of human rights violations in prisons, including life threatening conditions for those with the Applicant’s profile, the Officer’s conclusion that this should be given minimal weight due to the Jamaican authorities being “aware of the problem” was incoherent. The application for leave was allowed.
Castro Ramirez v. Canada (MCI) 2023 FC 1243
In Castro Ramirez v. Canada (MCI), Justice Ahmed assessed the Applicants’ Stay of Removal application. The Principal Applicant (PA) was a citizen of Columbia. She has a 13-year-old son and 19-year-old daughter. In 2014, the PA and her then husband and children moved to the United States (US). The PA alleged that she suffered abuse from her then husband, filed a restraining order against him in 2018, and he was deported in 2019. They had divorced, but the PA claimed that her ex-husband continued to contact her and threaten her, that his family was involved in criminal activity, and that he planned to retaliate against her in Colombia. While in the US, the PA had remarried, but the spouse was also physically abusive. The PA then took her children to Canada, as she believed this would be a safe place for victims of domestic violence. However, their claim was ineligible due to the Safe Third Country Agreement, so they submitted a Pre-Removal Risk Assessment (PRRA) Application. The PA submitted evidence of a history of abuse by the ex-husband, which included police reports, photos of injuries, medical reports, as well as country condition evidence. The PRRA was refused. The PA appealed the refusal and brought a motion to Stay their removal until an underlying decision on the appeal was made.
Justice Ahmed found that there were serious issues to be tried. The underlying appeal raised issues surrounding the Officer’s assessment of the evidence relied upon in the decision. Second, Justice Ahmed was not persuaded that the PA would not face irreparable harm between her return to Colombia and the disposition of her appeal. The PA had provided more than enough evidence to establish risk of harm in Colombia, including evidence showing that her ex-husband continued to seek her out. Moreover, it was inappropriate to brush aside evidence demonstrating that the PA had contemplated suicide considering the years of abuse faced from her ex-husband- a man located in the country she was being returned to, and who continued to look for her. Justice Ahmed was satisfied that the Applicants had established irreparable harm. Finally, the PRRA decision was the Applicants’ first substantive risk assessment, weighing the balance of convenience in their favour. The Applicants’ stay was granted, pending the final disposition of the underlying appeal.