Singh v. Canada (MCI) 2024 FC 1048
In Singh v. Canada (MCI) Justice Fuhrer examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was an Indian citizen who alleged persecution from the Bharatiya Janata Party (BJP) and police due to speaking out against them. Both the Refugee Protection Division (RPD) and the RAD refused his claim due to a viable internal flight alternative (IFA). While the RPD did not raise any credibility concerns, they were later raised at the RAD when it come to certain documents. Specifically, the RAD had concerns with the inconsistencies between a hospital record and an affidavit from the Applicant’s father (which outlined the injuries that resulted from an attack by the BJP goons). On judicial review, Justice Fuhrer found that the credibility issue was a new issue before the RAD as the RPD found the Applicant to be generally credible and that his documents corroborated his allegations. A new credibility issue required that the Applicant be issued an opportunity to respond to avoid a breach of procedural fairness. Justice Fuhrer also noted that the RAD considered the credibility of certain pieces of evidence in the context of identifying the motivation of the agents of persecution when it came to looking for the Applicant in the proposed IFA. In this regard, the RAD’s assessment to continue to look for particular evidence came off as “a frolic and venture into the record”, the sort cautioned against in Husian, 2015 FC 684. Justice Fuhrer ultimately found that the RAD breached procedural fairness by failing to provide the Applicant with an opportunity to make submissions about specific evidence that the RAD had concerns with. The application for leave was allowed.
Tul Muntaha v. Canada (MCI) 2024 FC 1040
In Tul Muntaha v. Canada (MCI) Justice Gleeson reviewed the Applicants’ cessation decisions. The Applicants (a mother and daughter) were Pakistani citizens who successfully claimed asylum in 2014 due to their fear of persecution as Ahmadi Muslims. The Applicants secured permanent residence in 2017. In 2018, the Applicants renewed their Pakistani passports, and travelled back to care for the mother’s grandmother, who was terminally ill. The trip was for 53 days in total. In 2021, the Minister brought forward a cessation application and the Refugee Protection Division (RPD) granted the application on the basis of reavailment. On judicial review, the Applicants did not challenge the RPD’s determination that their trip was voluntary. However, they alleged that the RPD had unreasonably found that they had intent to reavail and that they actually reavailed themselves of the protection of Pakistan.
Justice Gleeson argued that the Galindo Camayo, 2022 FCA 50 decision did not “change the legal test to be considered in cases of cessation but it does significantly impact the nature of the analysis a decision maker is required to undertake. This is particularly so where, as here, the RPD relies on a presumption to establish an intent to reavail” (par 20). The RPD was not required to refer to Galindo Camayo, 2022 FCA 50, and did, addressing many of the factors raised in Galindo Camayo. However, the RPD failed to address certain factors, such as the severity of the consequences of a cessation decision, which Justice Gleeson found to be a reviewable error. Moreover, the decision fell short when it came to addressing certain key factors, which were not remedied by the blanket statement that all evidence and submissions were considered. For example, the Applicants’ lack of awareness of the consequences of return to Pakistan was significant for their position that the presumption of reavailment had been rebutted. The RPD failed to address the Applicants’ evidence on this point. Similarly, the RPD failed to address the evidence when it came to precautions the Applicants took while in Pakistan. In conclusion, Justice Gleeson found the RPD’s decision to be lacking in intelligibility, justification, and did not reflect the necessary elements of transparency. The application for leave was allowed.
Ali v. Canada (MCI) 2024 FC 1032
In Ali v. Canada (MCI) Justice Gleeson assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant sought asylum in Canada in 2019, but the matter was refused for failing to initiate the claim with 3 days of arriving to Canada (as a merchant seaman). The Applicant proceeded to file a PRRA application. The Applicant claimed that he was a member of the Pashtun Tahaffuz Movement (PTM)- a civil rights movement in Pakistan. The Applicant had been threatened by the military due to his involvement with the PTM and feared that upon return he would be detained and falsely charged with treason or disappear. A senior immigration Officer refused the application. On judicial review, Justice Gleeson found that while the Officer expressed many of their findings when it came to sufficiency, the true basis of the Officer’s concerns lay in credibility. The Officer had a) flagged multiple times what was not addressed in various letters and affidavits; b) highlighted inconsistencies; and c) discounted evidence in family member’s affidavits on the basis that the affiants were not disinterested parties and failed to provide corroborative evidence. The Officer’s focus on what the evidence did not say, rather than what the evidence established, implied that the Officer had credibility concerns with the Applicant’s narrative. In addition, the Officer’s reliance on contradictions, inconsistencies and the interests of other parties was another strong indicator that credibility was the real concern. Justice Gleeson found that, if the evidence was accepted, it would have justified the PRRA application. Given the circumstances and the Officer’s failure to consider the needs for an oral hearing rendered the decision unreasonable. The application for leave was allowed.
Singh. v. Canada (MCI) 2024 FC 1020
In Singh. v. Canada (MCI), Justice Azmudeh explored the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was an Indian citizen of Sikh faith. The Applicant was accused by the local police of withholding information regrading targeted killings after he attended an event to commemorate the Golden Temple attack. Two months afterwards, the Applicant was questioned by the police about cybercrimes and pro-Khalistan activities. Four weeks after, when the Applicant was returning from holiday, he was detained by airport police who accused him of meeting anti-national elements in Malaysia. A Punjab counter-intelligence team raided his home, took him to an unknown location, accused the Applicant of being involved in narco-terrorism, arms smuggling, and beat him to extract a confession. They released him after he paid a bribe. The Applicant was not formally charged with any crimes. Since coming to Canada, the Applicant has been active on a referendum for an independent Khalistan. The Refugee Protection Division (RPD) rejected the Applicant’s claim due to a viable internal flight alternative (IFA) in Mumbai, and the RAD upheld the decision.
On judicial review, the Applicant submitted that the RAD failed to analyze his prospective risk in Mumbai. The Applicant’s pro-Khalistan political stance was only analyzed in a sur place claim context, and the RAD found that, on a balance of probabilities, the Indian authorities were not aware of the Applicant’s stance. The RAD failed to engage with the key question of whether the Applicant would be able to express his political opinion freely in Mumbai without a serious probability of persecution. At the RAD, the Applicant submitted evidence of his activities in Canada and argued that he would not be able to do them in India. While the Applicant may have been able to live safely in Mumbai if maintaining his silence (with respect to his political opinion), Justice Azmudeh disagreed that the first prong of the IFA test contemplates that one must live against their conscience or opinion in order to be free of persecution. Safety in the IFA does not contemplate forced self-censorship. The application for leave was allowed.
Murillo Arboleda c. Canada (MCI) 2024 FC 1016
In Murillo Arboleda c. Canada (MCI), Justice Ngo examined the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants’ appeal was refused on the grounds of a viable internal flight alternative (IFA). On judicial review that Applicants argued that the Principal Applicant’s (PA) fear (risk associated with his profile as a social/union leader) was not assessed by the RAD when it came to the proposed IFA, resulting in an omission of a key issue when it came to the IFA analysis. Justice Ngo found that the Applicant’s profile and the characteristics of the agents of persecution are important in the IFA analysis. The RAD’s reasons had to be sufficiently clear to understand how these factors were assessed. Justice Ngo found that the decision was unreasonable due to the RAD failing to assess the risk of persecution based on the PA’s profile, a key argument before the RAD. The risk assessment was relevant in the context of the IFA. As a result, the decision failed to meet the requirements of the reasonableness standard. The application for leave was allowed.
Merenyi v. Canada (MCI) 2024 CanLII 59709
In Merenyi v. Canada (MCI) Justice Fuhrer reviewed the Applicant’s stay motion application. The Applicant was a Hungarian citizen who brough forward a stay, requesting that his removal be halted until a decision had been made on the application for leave and judicial review of his negative Pre-Removal Risk Assessment (PRRA) application. Justice Fuhrer found that the Applicant had met the threshold for establishing a serious issue and his application for leave was not frivolous or vexatious. This was borne out of various parties having different views of whether the PRRA Officer had made a credibility versus insufficiency of evidence determination, as well as the due to the nuanced approach taken to resolving the issue in the applicable jurisprudence. Justice Fuhrer also found that the Applicant had established irreparable harm. The Applicant and his Canadian wife had a son (4 years old) who was experiencing language delays, separation anxiety (especially where the Applicant was concerned), stress-induced vomiting, temper tantrums, repetitive behavioral patterns, rigidity, and a strong resistance to change in routine. While the medical report descried the son’s mannerisms as “mild features of autism” he was referred for an Autism Spectrum Disorder (ASD) assessment. Justice Fuhrer found that the impact the Applicant’s removal would have on his son would be beyond the “usual consequences of deportation” to constitute irreparable harm. Even if the Applicant’s family were to accompany him back to Hungary, it was clear that the child would be negatively affected by the dramatic and sudden changes to his routines. Justice Fuhrer granted the stay as the balance of convenience was in the Applicant’s favour.
Pinilla Sanchez v. Canada (MCI) 2024 FC 1065
In Pinilla Sanchez v. Canada (MCI) Justice Aylen assessed the Applicants’ Refugee Protection Division (RPD) decision. The Applicants (wife, husband, and minor daughter) were citizens of Colombia who sought asylum in Canada based on the allegations that the Principal Applicant (PA-wife) received threats to her life from the Black Eagles. The threats began due to the PA’s volunteer work with the local community action board (Board). As part of her volunteer work, the PA would report incidents of children at risk for domestic abuse, or recruitment by gangs, to the Board and the child welfare authorities. This interfered with the gang’s interests. The Applicant alleged that the threats culminated in an attempted assassination in which the PA’s father-in-law was shot. The RPD refused the claim on credibility grounds.
On judicial review, Justice Aylen found the determinative issue to be the RPD’s failure to provide a rational chain of analysis when it came to the finding that all the Applicants were not credible as a result of misrepresentation by the Associate Applicant (husband). The RPD found the Associate Applicant to not be credible as he had attempted to conceal his employment as an officer with the Colombian police. As a result, the RPD drew a negative inference against the overall credibility for all Applicants. However, the RPD failed to provide ample reasoning as to how the Associate Applicant’s omission was material to the Applicants’ collective narrative. Their narrative did not depend on any threats made to the Associate Applicant or his status as a police officer. The RPD had identified three reasons why the Associate Applicant’s omission was material, however, Justice Aylen found them primarily related to the materiality of the omission to his claim rather than to the Applicants’ collective claim. Justice Aylen found the RPD’s negative credibility finding against the PA and the minor applicant (daughter) to be unreasonable. The application for leave was allowed.
Bolies v. Canada (MCI) 2024 FC 1063
In Bolies v. Canada (MCI) Justice Ngo explored the Applicant’s Immigration Division (ID) decision. The Applicant originally came to Canada as a child in 1967 and secured permanent residence. In 1995, she was convicted of fraud and embezzlement from an employer. The Applicant was sentenced to three years in prison and ordered to pay restitution. Due to this conviction, the Applicant was found inadmissible for serious criminality and had a deportation order issued against her. However, the Applicant filed an appeal, and her removal was stayed in 2001. Twenty years later, in 2021, the Applicant was once again convicted of fraud and embezzlement from an employer. She was sentenced to three years imprisonment and ordered to pay restitution. While serving her sentence, she received a procedural fairness letter from Canada Border Services Agency (CBSA), advising her that a report under s.44(1) of IRPA would be issued. The Applicant submitted her response to the procedural fairness letter. The Applicant was also informed that CBSA had referred the report to the ID, pursuant to s.44(2) of IRPA. The Applicant’s counsel sent in a request to CBSA for reconsideration of the s.44(2) referral. A Minister’s Delegate denied the request and the Applicant applied for judicial review of the negative reconsideration decision.
On judicial review, Justice Ngo found the reconsideration decision was close to a reiteration and justification of the previous decision and failed to grapple with the Applicant’s submissions. The reconsideration decision stated that the Applicant should have been aware of the serious immigration consequences due to previous removal proceedings she faced after her initial conviction. However, the immigration legislation in effect in 1995 was different from the legislation applicable to her 2021 conviction. Justice Ngo was not satisfied that the reconsideration decision addressed either the “interests of justice” or the “unusual circumstances of the case” as the bulk of the decision simply addressed the merits of the previous decision. The fact that the Minister’s Delegate stated that “all factors have been taken into consideration” was not sufficient. Justice Ngo stated that “the Delegate’s choice to not exercise their discretion must actually grapple with the circumstances of the case” (at par. 31). The application for leave was allowed.