Patel v. Canada (MCI) 2024 FC 711
In Patel v. Canada (MCI) Justice Régimbald examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was an Indian citizen who resided in Gujarat. In 2017, the Applicant had aided a Muslim friend in securing a job at his father’s factory. Shortly after, the police had raided the factory and arrested the Applicant. The Applicant was tortured and questioned by the Gujarat police regarding “Muslim terrorists.” Meanwhile, the police also searched the Applicant’s family home and questioned the Applicant’s father. Later in the year, the police once more raided the Applicant’s home, arresting and torturing him. In August 2017, the Applicant fled India, hoping to enter the United States. However, his plan was not successful, and he was forced to return to India in December 2017. He stayed with his relatives in Mumbai. The Applicant testified that the Gujarat police made attempts to locate him while he resided in Mumbai. The Applicant came to Canada in 2018 and sought asylum but his claim was rejected due to a viable internal flight alternative (IFA) in Mumbai. The RAD upheld the Refugee Protection Division’s (RPD) decision and dismissed the appeal. On judicial review, Justice Régimbald found that the RAD failed to conduct a proper IFA analysis by failing to consider a key piece of evidence: the Applicant’s testimony that the Gujarat police had looked for him in Mumbai. While the RPD had rejected the Applicant’s testimony for credibility reasons, the RAD did not analyze the Applicant’s allegations, and failed to conduct an independent assessment. This rendered the RAD’s decision unreasonable. The application for leave was allowed.
Ramos v. Canada (MPSEP) 2024 FC 687
In Ramos v. Canada (MPSEP) Justice Ahmed reviewed the Applicant’s deferral decision. The Applicant came to Canada in 2021 and unsuccessfully claimed asylum. In 2022, he entered into a common-law relationship. In 2023 the Applicant was attacked outside his home and seriously injured. A medical note advised that the Applicant suffered from a deteriorating cognitive function with attendant health issues. A psychotherapists’ assessment also noted that there was a “high probability” of the Applicant suffering from PTSD. With the Applicant’s decline in health, his partner took over his care. In 2024, the Applicant was scheduled for removal. The Applicant requested deferral of removal, but it was refused. The Applicant thus brought forward the motion to stay his removal pending the determination of his negative deferral appeal.
Justice Ahmed found that the Applicant had established multiple serious issues, satisfying the first part of the tri-partite test for a stay. There was a serious issue with the way the Officer factored evidence when it came to new risk into the decision at the deferral state. There were also serious issues with the Officer’s determination regarding the medical and family support that would be available to the Applicant in Peru. When it came to the second part of the test, Justice Ahmed found that the Applicant had established irreparable harm. There were changes in the Applicant’s circumstances that may adversely affect the risk of removal, risks that have yet been properly assessed. This constituted as irreparable harm and was relevant to the Applicant’s circumstances, considering the serious issues with the Officer’s findings. Lastly, when it came to the third part of the tri-part test, Justice Ahmed found that the Applicant had established that the balance of convenience was in his favour. The stay motion was granted.
Khan v. Canada (MCI) 2024 FC 678
In Khan v. Canada (MCI) Justice Grant assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant feared returning to Bangladesh due to his association with the Bangladesh National Party (BNP). The Applicant was challenging the refusal of his fourth PRRA decision, with the previous three being overturned or quashed by the Court. When rejecting the Applicant’s current PRRA, the Officer accepted that both he and his mother were involved with the BNP while in Bangladesh, and that the “ruling AL government and its supporters have continued to suppress critics, BNP leaders, activists and those perceived to be allied with the opposition.” Nevertheless, the Officer found that there was insufficient evidence to show that the Applicant “fit the profile or could be perceived to fit the profile of those individuals who could be targeted in Bangladesh,” rejecting the PRRA. On judicial review, the determinative issue was the Officer’s assessment of the Applicant’s profile. First, Justice Grant found that the Officer failed to capture the specific nature of the Applicant’s involvement in the BNP. This was important as the documentary evidence drew distinctions between mere supporters, and active members and agents within the organization. Moreover, the Officer’s recognition that the ruling AL party continued with the suppression of political opponents lacked the specificity, clarity and intelligence required when it came to a PRRA decision.
Justice Ahmed noted that the Officer may have used the term “supress” to mean something less serious than the forms of mistreatment outlined in ss.96 and 97 of IRPA. On the other hand, the Officer could also have used the term “supress” as a synonym for persecution but found the Applicant to lack the sufficient profile to attract mistreatment. Both interpretations were unreasonable. The documentary evidence clearly stated that BNP supporters, especially those (like the Applicant) who had held official positions in the party, may be subjected to unlawful arrest, abuse, torture, disappearance, and extra-judicial killings. Given the above, none which was referenced by the Officer, it was insufficient and distorting to state that the government continued to “suppress” the opposition. It was also unreasonable for the Officer to conclude that the Applicant lacked the profile, or perceived profile, of a person who could be targeted in Bangladesh. The evidence reflected that the Applicant had a higher-level profile with the BNP than the Officer acknowledged, and the documentary evidence contained multiple references to the arrest, detention and mistreatment of many opposition supporters. It was important for the Officer to take this evidence into consideration when determining the application, which the Officer failed to do.
In conclusion, by making the determination that the Applicant lacked forward-looking risk, the Officer found that the Applicant no longer had the desire to participate in political activity based on the fact that he was not very active with the BNP in Canada, and based on his testimony that he did not want to be in politics anymore. Justice Grant found both findings to be unreasonable. The Applicant’s testimony was that he remained active with the BNP to the extent that his work obligations allowed him to, anything beyond that was difficult. Based on this testimony, Justice Grant saw no basis to infer that the Applicant did not want to re-engage in political activity in Bangladesh. In addition, the Applicant stated that he did not want to be politically involved due to threats and violence associated with his past involvement (which he anticipated with any future involvement). Justice Grant stated, “it should go without saying that refraining from legitimate political activity because of the fear of persecutory treatment can not ground a finding that an individual lacks a forward-looking fear of persecution” (at par. 30).” The application for leave was allowed , with the matter remitted back for redetermination with the following instructions: 1) given that the previous PRRA Officer accepted the Applicant’s evidence with regards to his involvement with the BNP, this aspect of the profile not be reconsidered (unless there are new reasons to doubt it’s veracity); and 2) should credibility remain an issue, in any aspect, a new oral hearing be conducted.
Kokeny v. Canada (MPSEP) 2024 FC 675
In Kokeny v. Canada (MPSEP) Justice Ahmed examined the Applicant’s stay decision. The Applicant was seeking stay of removal based on the determination of this underlying leave of his negative Pre-Removal Risk Assessment (PRRA) decision. The Applicant was a 21-year-old citizen from Hungary, who had come to Canada (as a child) with his parents in 2009 and claimed asylum. Their claim was refused in 2012, and the Applicant and his family returned to Hungary. In 2022, the Applicant returned to Canada and made a PRRA application on the basis of his father being a Roma activist and politician. This led to animosity and mistreatment of his family, including a recent incident where the Applicant was stabbed by a member of a racist extremist group. The applicant submitted a hospital report and photographic evidence of his injuries. Nevertheless, his PRRA application was refused.
At this stay motion, Justice Ahmed found that there were multiple serious issues with the PRRA decision. First, the Officer did not take into consideration the clear evidence of vicious persecutory acts as a result, in part, to the Applicant’s perceived sexual orientation. There were serious issues with the Officer’s treatment of “all the risk factors put forward by the Applicant, cumulatively.” Second, there were serious issues with the Officer’s lack of explanation, based on the Applicant’s extensive evidence of mistreatment as a result of his Roma ethnicity, why the discrimination did not amount to persecution. In addition, there was a serious issue with the Officer’s treatment of the Applicant’s statements when it came to his stabbing – with the Officer making veiled authenticity findings. Justice Ahmed was satisfied that the Applicant had established irreparable harm, given the evidence before the Court and the numerous serious issues with the Officer’s risk assessment in the PRRA decision. Lastly, Justice Ahmed found that the balance of convenience was in the Applicant’s favour. The stay motion was granted.