Torres v. Canada (MPSEP) 2024 CanLII 7632
In Torres v. Canada (MPSEP) Justice Southcott examined the Applicant’s stay of removal request. The Applicant claimed asylum in Canada, in part due to his bisexual orientation. Unfortunately, the Refugee Protection Division (RPD) rejected his claim, finding that the Applicant failed to provide sufficient probative evidence when it came to his sexual identity. The Applicant’s appeal at the Refugee Appeal Division (RAD) was also dismissed as it was not perfected on time. The Applicant received a Direction to Report, with CBSA scheduling the Applicant’s removal to Colombia for February 7, 2024. On February 2, 2024, the Applicant’s current counsel submitted a deferral request based on the Applicant’s desire to file a Pre-Removal Risk Assessment application (PRRA). In support of the Deferral request, the Applicant submitted a sworn affidavit that attested to him being in a same sex relationship since July 2023. The Applicant’s partner also swore an affidavit. The Applicant’s sworn statement enclosed the Applicant’s chat history that dated back to 2021, intending to show the development of the relationship. However, the Officer relied on the RPD’s finding that the Applicant had not established his sexual orientation, and agued that the Applicant had ample time to present evidence to the RPD. The Deferral request was refused. The Applicant sought stay of removal pending the determination of the application for leave of the negative Deferral decision. The Applicant stressed that he was not in a same sex relationship at the time of the RPD decision, as such, he did not have an opportunity to submit evidence of a more definitive nature. On judicial review, Justice Southcott found that the Applicant had presented serious issues when it came to the reasonableness of the Officer’s analysis. The existence of the serious issue of whether the Officer erred by refusing deferral to allow for a PRRA application associated with new sexual orientation evidence, coupled with country condition evidence on the persecution of sexual minorities in Mexico and Colombia, supported the finding that the Applicant would suffer irreparable harm returning to either country prior to a determination of whether his risk had been properly assessed. Justice Southcott was also satisfied that that the balance of convenience favoured the Applicant. Stay was granted pending the determination of the leave of the negative deferral decision.
Alhadje Issa c. Canada (MCI) 2024 CF 154
In Alhadje Issa c. Canada (MCI) Justice Azmudeh assessed the Applicant’s sponsorship refusal. The Principal Applicant (PA) and her three children were sponsored by her husband, who was a permanent resident of Canada. During processing, a DNA test revealed that one of the three children was not the biological child of the PA’s husband. The application was refused for misrepresentation, and the PA and her children were found to be inadmissible to Canada. The PA argued that the situation was a matter of an innocent mistake, not misrepresentation, as she did not know the child was not her husbands. On judicial review, Justice Azmudeh found that the Officer had failed to contextualize the evidence, leading to the faulty conclusion that the PA knew or ought to have known her husband was not the child’s biological parent. This assumption, without further investigation, rendered the decision unreasonable. There was no evidence to suggest that the PA knew that her husband was not the biological father. The fact that she had sexual relationships with more than one man did not also provide an objective basis for her to conclude that her husband was not the father of her children. The couple’s marriage was long lasting, and they had children together. The child in question was viewed as the husbands, both by their community and based on what the parents believed when they obtained the child’s birth certificate (an event that took place prior to the sponsorship application). Justice Azmudeh found that the Officer should have exercised more procedural fairness towards the PA rather than assuming that she must have known that her husband was not her child’s father. Moreover, as the finding of misrepresentation against the children was indirect and arose from an unreasonable finding against their mother, it could not be sustained. The application for leave was allowed.
Vanovac v. Canada (MPSEP) 2024 FC 148
In Vanovac v. Canada (MPSEP) Justice Fuhrer reviewed the Applicant’s admissibility decision. The applicant was a citizen of Bosnia and Herzegovina. Prior to coming to Canada and obtaining permanent residence in 1994, the Applicant was the president of the Central Commission of the Exchange of Prisoners for the Bosnian Serb regime from 1992 to 1993. The Bosnian Serb regime was subsequently designated pursuant to s.35(1)(b) of IRPA, which refers to senior officials in service of a government that, in the Minister’s opinion, had engaged in terrorism, human rights violations, genocide, war crimes, or crimes against humanity. The Immigration Division (ID) found the Applicant inadmissible to Canada pursuant to s.16 of the IRPR, and moreover, the Bosnian Serb’s regime’s designation covered the period when the Applicant held his position. The Applicant challenged the ID’s finding, in particular with the argument that his position fell within ss.16(c), (d), and (f) of IRPR, instead of just ss.16(c). While Justice Fuhrer dismissed the Applicant’s application for leave, the Court did certify one of the Applicant’s proposed questions: Does the duty of procedural fairness owed to an applicant in the context of potential inadmissibility under paragraph 35(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27, require detailed notice about the specific nature of the allegations against an individual in respect of the broad, non-exhaustive categories of a “prescribed senior official” under section 16 of the Immigration and Refugee Protection Regulations, SOR/2002-227?
Singh v. Canada (MCI) 2024 FC 43
In Singh v. Canada (MCI) Justice Grammond analyzed the Applicant’s right to appeal a removal order. The Applicant was a foreign national who was in Canada a temporary foreign worker, securing a permanent resident visa that was valid from February 28, 2018, to October 15, 2018. On Marach 1, 2018 he presented himself at the border to get landed but was found to have child pornography on his cell phone. The Applicant was eventually convicted of a criminal offence in relation to the child pornography and was sentenced to six months less as day in jail and three years’ probation. Due to the conviction, the Applicant was referred to the Immigration Division (ID), which issued a removal order against him, finding him inadmissible due to serious criminality. The Applicant attempted to appeal the division before the Immigration Appeal Division (IAD), but the IAD found that he did not have rights to appeal. The Applicant applied for leave of the IAD’s decision. On judicial review, Justice Grammond found the first step of the IAD’s analysis to be reasonable. The first step was to determine whether the visa had expired when the exclusion report was filed, or the notice of appeal was filed. If the visa had expired, then one inquiry was to determine if there were any special circumstances that allowed for the appeal rights to be preserved. The second step of the IAD’s analysis was also reasonable. At this point, the issue was whether the information discovered by the examination affected the validity of the visa. The third step of the IAD’s analysis, however, was concerning. The IAD had concluded that the validity of the visa had been affected by the facts, leading to the Applicant’s conviction that took place before he sought to enter Canada. Justice Grammond found this reasoning to be illogical and unreasonable. The removal order was based on s.36(1)(a) of IRPA, which addresses criminal offences committed in Canada. Under this provision, inadmissibility only arises upon a conviction. Therefore, the IAD could not make a finding that the basis for inadmissibility existed prior to the Applicant entering Canada. Justice Grammond also found that the IAD had also overlooked the Federal Court jurisprudence that suggested a subsequent criminal conviction was a circumstance that did not affect the validity of the visa. The application for leave was allowed.
Gomez Hernandez v. Canada (MCI) 2024 FC 35
In Gomez Hernandez v. Canada (MCI) Justice Heneghan examined the Applicants’ exclusion decision. The Principal Applicant (PA) and her husband were citizens of Venezuela who obtained permanent resident status in Panama and lived there since 2014 until coming to Canada. In 2019, the PA had lost her Venezuelan passport and permanent resident card from Panama due to her purse being stolen. According to her Basis of Claim form, her permanent residence had likely expired after being absent for over two years from the country. Her husband’s Venezuelan passport expired in 2021, and his status in Panama likely expired by 2021 too. In May 2021, the Applicants claimed asylum in Canada on the basis of fear of political persecution by the current Venezuelan government. The Refugee Protection Division (RPD) refused their claim on the grounds of s.98 of IRPA, as well as Article 1E of the Refugee Convention. The Refugee Appeal Division (RAD) confirmed the finding of the RPD that had the Applicants failed to prove, on a balance of probabilities, that they could not obtain passports from Venezuela in order to regain permanent resident status in Panama.
On judicial review, the Applicants’ main argument was that the RAD had not reasonably assessed the second element of the Zeng test. To be more exact, the Applicants argued that the RAD had ignored objective documentary evidence when it came to the necessary steps to be taken to reacquire permanent resident status is Pana, which included the presentation of the expired Panamanian permanent resident card as well as a notarized copy of an applicant’s passport. Justice Heneghan agreed with the Applicants, finding the RAD’s reasoning when it came to their ability to regain status in Panama not having the hallmarks of a reasonable decision. Furthermore, the RAD failed to address the Applicants’ argument that going to the Venezuelan Consulate to obtain passports would constitute reavailment of the country from which they were seeking protection. The application for leave was allowed.