De Oliveira v. Canada (MCI) 2024 FC 495
In De Oliveira v. Canada (MCI) Justice Fuhrer reviewed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant had originally applied for permanent residence under the Spouse or Common-Law Partner in Canada class. However, due to the relationship breakdown, the Applicant requested that the application be considered on H&C grounds. The Officer refused to accept certain facts without corroboration, including: 1) the violence the Applicant experienced; 2) the therapy sessions attended by the Applicant; 3) the financial demands of her ex-partner and payment she made; and 4) any intervention by law enforcement or other authorities. In addition, the Officer made no remarks on the ex-partner’s alleged threats to withdraw the sponsorship. In the end, the Officer refused the H&C application. On judicial review, Justice Fuhrer found that the Officer’s concerns when in came to lack of corroborative evidence showed a lack of awareness when it came to IRCC’s guidelines and Program Delivery Instructions on domestic violence. In this case, Justice Fuhrer found the Officer’s disregard of the Applicant’s evidence of domestic violence due to lack of corroborative evidence to be unreasonable, giving rise to credibility concerns. The application for leave was allowed.
Moronfulu v. Canada (MCI) 2024 FC 488
In Moronfulu v. Canada (MCI) Justice Sadrehashemi examined the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants, a mother and her two children, sought asylum in Canada. The Refugee Protection Division (RPD) had denied their refugee claim, but granted the claim of the eldest’s daughter, finding that she would be at risk of persecution in Nigeria due to her bisexual orientation. The Applicants had appealed the refusal at the RAD, arguing that they faced new risk due to the mother’s in-laws learning of her eldest daughter’s bisexuality. The RAD refused the appeal due to a viable internal flight alternative (IFA) in Ibadan.
On judicial review, Justice Sadrehashemi found the determinative issue to be the RAD’s refusal to accept the maternal grandmother’s letter of support as new evidence. The letter had alleged that the police in Ibadan came to the grandmother’s home, looking for the Applicants as they were informed that the Applicant had a bisexual daughter. The maternal grandmother also stated that she was required to report in-person to the police on a monthly basis until the Applicants presented themselves.
The RAD found the maternal grandmother’s letter to not be credible on the following two grounds: 1) the Applicants failing to explain how they obtained the letter in the short period of time provided for submissions and new evidence; and 2) the illegibility of the identity documents of the letter’s author. Justice Sadrehashemi found the RAD’s superficial evaluation of the credibility of the new evidence was misaligned with the requirements set out in Vavilov. The RAD’s unstated assumption seemed to be that a letter from Nigeria would not arrive in Canada in a matter of days. The RAD failed to explain this assumption, and the final determination that the letter was insufficiently credible to be admitted as new evidence did not follow from its analysis. Justice Sadrehashemi pointed out that credibility findings in refugee matters must be made clear and use unmistakable terms. This requirement does not go away when deciding on admissibility of new evidence on appeal. Justice Sadrehashemi also noted that the Court was open to the RAD asking for further written submissions on the mode of delivery of the letter and/or the legibility of the identity documents. The application for leave was allowed.
Hossain v. Canada (MCI) 2024 FC 477
In Hossain v. Canada (MCI) Justice Aylen assessed the Applicant’s inadmissibility determination. The Applicant was a citizen of Bangladesh and former member of the Bangladesh Nationalist Party (BNP). The Applicant was found inadmissible pursuant to s.34(1)(f) of IRPA, on the basis that there were reasonable grounds that the BNP engages, had engaged, or will engage in acts of terrorism. On judicial review, Justice Aylen pointed out that some Federal Court decisions held that it was reasonable for decision-makers to concluded that the BNP has engaged in terrorism, while other decisions held that similar findings were unreasonable. In considering these various determinations, Justice Aylen stated that decisions relating to whether or not the BNP engages in terrorism depend on the evidentiary evidence before the decision maker, and the particular findings made by the decision maker on that record. Federal Court decisions “will turn on the specific reasons provided by the decision-maker and whether the decision-maker’s finding of the requisite specific intent is based on an internally coherent and rational chain of analysis that is justified in relation to the factual record that was before them.” (par. 11).
In the case at hand, Justice Aylen found the Officer failed to provide reasonable justification for imputing, to BNP leadership – the requisite specific intent for a terrorism finding. The Officer determined that “the presence of violence is sufficient to infer a specific intent and attribute it” to the BNP. The Officer’s determination failed to address 1) the circumstances in which violent acts resulting in death or serious injury were committed; 2) the internal structure of the organization; 3) the degree of control that was exercised by the leaders over their members; and 4) the leadership’s knowledge of the violent acts and their public denunciation or approval of said acts.
Overall, Justice Aylen found that that Officer failed to explain why the violent acts disclosed in the source documents were attributed to the BNP leadership. The Officer never explicitly found that the BNP intended to cause death or serious injury. Justice Aylen concluded by stating that “the Officer’s finding that hartals have resulted in deaths and serious injury is reasonable based on the evidence that was before them. However, results and intent are distinct concepts and the only finding of intention made by the Officer relates to violence and “criminal activities.” While the Respondent urges the Court to find that the Officer’s reference to violence and criminal activities is synonymous with death and serious injury, I am not satisfied that such a finding is warranted. In considering the issue of terrorism, “[v]violence cannot be indiscriminately confused with causing death or serious injury” and to accept the Respondent’s suggestion would have the improper effect of lowering the fault requirement.” (par. 20) The application for leave was allowed.
Alabi v. Canada (MCI) 2024 FC 475
In Alabi v. Canada (MCI) Justice Ahmed analyzed the Applicants’ Pre-Removal Risk Assessment (PRRA) application. The Officer had refused the Applicants’ PRRA, finding that there was insufficient evidence to establish that they would face persecution or other risk of harm. In addition, the Officer found that the country condition evidence indicated “no more than generalized risk for the applicants” which was not sufficient under s.96 or s.97 of IRPA. On judicial review, Justice Ahmed found that the Officer unreasonably required the Applicants to establish that the alleged persecution they faced was not generalized (under s.96). “[R]equiring an applicant to establish that a risk of persecution is “individualized” impermissibly imports a threshold from a section 97 of the IRPA analysis into a section 96 analysis” (at para. 16). The Officer failed to engage in the requisite analysis to make a determination under s.96 of IRPA. Furthermore, the Officer failed to provide separate reasons for requiring corroborative evidence to support the statements in the Principal Applicant’s (PA) sworn affidavit. By requesting corroborative evidence, the Officer implicitly and without justification, rejected the contents of the PA’s affidavit. Justice Ahmed concluded by stating that “it is an error to fail to provide reasons to reject the presumed truthfulness of evidence in an applicant’s sworn affidavit in PRRA applications” (at par. 19). The Application for leave is allowed.
Ma v. Canada (MCI) 2024 FC 471
In Ma v. Canada (MCI) Justice Fuhrer reviewed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of China who feared persecution from the Chinese authorities after having protested against under-compensation for land expropriation which involved her pig farm business, and those of her neighbours. The Refugee Protection Division (RPD) rejected her claim and the RAD dismissed her appeal. The Applicant successfully appealed her RAD refusal at the Federal Court (Ma, 2022 FC 1043) and the matter was sent back for redetermination. On redetermination, the RAD once more rejected the Applicant’s appeal, upholding the finding that the authorities were pursuing the Applicant due to having broken a law, and not due to her political opinion.
Justice Fuhrer noted that “whether participation in a protest and resultant police action involve the expression of political opinion met with persecution will depend on the particular facts.” (Par. 21.) The RAD had accepted the Applicant’s evidence and country conditions that addressed the serious possibility of persecution by local government and police. Justice Fuhrer found that the RAD’s speculation that the government’s interest in the Applicant would be limited to her attendance of an illegal gathering to be unreasonable. The RAD failed to explain this stance, despite the Applicant’s evidence that the police accused her of taking the lead in anti-government action, slander of government officials, and sabotaging social order. In addition, the RAD’s determination did not directly address the Applicant’s credibility. Justice Fuhrer found that the RAD’s decision was “reverse engineered” to align with the outcome in Lin, 2012 FC 1454 (another expropriation prosecution/persecution case). However, Vavilov specifically discourages such decision making. Justice Fuhrer ultimately found the RAD’s decision lacking in explanation why it was likely that the government’s interest would be limited to her attendance of an illegal gathering. The application for leave was allowed.
Yakubu v. Canada (MCI) 2024 FC 428
In Yakubu v. Canada (MCI) Justice O’Reilly examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was unsuccessful in claiming asylum, with the Refugee Protection Division (RPD) finding that he had failed to prove his identity. At the RPD hearing, the Applicant stated that he did not have a copy of his Ghanaian passport. On appeal, however, the Applicant was finally able to provide a copy of the passport. He explained that he was only able to secure a copy of his passport after the RPD hearing. The RAD rejected the copy of the passport as new evidence and dismissed his appeal. In essence, the RAD seemed to disbelieve the Applicant’s assertion that he was only able to secure a copy after the RPD proceedings but the RAD provided no explanation for this adverse credibility finding. Moreover, the RAD failed to properly assess the RPD’s treatment of the Applicant’s birth registration certificate as evidence of identity. Justice O’Reilly found that as the RAD’s attestation of the RPD’s decision on the issue of identity was unreasonable, the Court did not need to decide whether an oral hearing should have been held. However, Justice O’Reilly noted that this was a live issue that the RAD failed to consider, given the negative credibility finding regarding the passport, which was relevant to the central issue of the Applicant’s identity. The Application for leave was allowed.