De Campos v. Canada (MCI) 2024 FC 1193
In De Campos v. Canada (MCI) Justice Ahmed examined the Applicants’ Humanitarian and Compassionate (H&C) decision. The Applicants, a couple and their two minor children, were Portuguese citizens who came to Canada in 2014. Their first H&C application was refused in 2021, and their second H&C application was refused in 2023. On judicial review, Justice Ahmed stated that the Federal Court was advised against focusing on a child’s resiliency over their best interests. In the case at hand, Justice Ahmed found that the Officer erred by focusing on the former, using the minor applicants’ abilities to learn a new langue and adapt to the Canadian education system as a sign of their resilience and ability to adapt. Justice Ahmed found this concerning given that the Officer speculated about the Applicant’s Portuguese language abilities. The Officer had inferred that the minor applicants communicated with their grandfather in Portuguese as he had written his letter of support in Portuguese. “This inference is tenuous at best, and a troubling implication that migrant families speak a foreign language at worst” (at para. 23). This was also particularly concerning in light of the evidence submitted that indicated that the children had lost their fluency in Portuguese.
The Court also found that the Officer erred with the establishment analysis. The Officer found the Applicants’ contravention of Canadian Immigration law to be detrimental. However, Justice Ahmed argued that this was an error as an H&C application invariably involves noncompliance with IRPA. Justice Ahmed also found the Officer had erred by using their positive establishment against the Applicants. Justice Ahmed highlighted the Officer’s determination that “relationships are not bound by geographical locations and that [the Applicants] have the option to maintain contact with their family, friends and others in Canada through mail, telephone and via the internet.” In Justice Ahmed’s view “[t]his standard-form “justification” for denying H&C relief is a paltry excuse for an analysis of an applicant’s connection to their friends, family, and community in Canada. The Court has long advised against this line of reasoning when provided without regard to an applicant’s circumstances…an artificially high standard is established when an officer finds that there is a lack of evidence that an applicant cannot maintain contact with friends, family, and community through communication methods upon leaving Canada” (at pars. 27-28). Lastly, Justice Ahmed rejected the argued that the Applicants had to prove their circumstances were “exceptional” to be granted relief- as it was an error to uphold such a standard in H&C claims. The application for leave was allowed.
Ly Dao v. Canada (MCI) 2024 FC 1192
In Ly Dao v. Canada (MCI) Justice Whyte Nowak reviewed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a Vietnamese citizen who was a practitioner of Hoa Hao Buddhism (HH) since October 2018. Due to an act of protest, the Applicant was detained, interrogated, and assaulted by the Vietnamese police. Afterwards, the Applicant left Vietnam and claimed asylum in Canada. The determinative issue before the Refugee Protection Division (RPD) was the Applicant’s inability to show a serious possibility of persecution in the event she went back to Vietnam. The RPD refused the claim and the RAD dismissed the appeal. On judicial review, Justice Nowak found that the RAD made an incorrect implausibility finding when assessing new evidence of risk as well as an improper assessment of the Applicant’s political profile. While the RPD found the Applicant having no political profile, the RAD “subtly elevated the standard to that of a high political profile in order to match its use of the NDP evidence related to serious crimes and cases of national security” (par. 28). Justice Nowak disagreed with the RAD and found that the Applicant did have a political profile- she had distributed flyers criticizing the government and had been interrogated by the police. The RAD made a similar error when assessing objective country evidence. The RAD focused solely on NDP information when it came to arrests and serious crimes (neither which were relevant in this case) and ignored the NDP information that was specific to the treatment of HH Buddhists (which matched the Applicant’s treatment). The application for leave was allowed.
Bentaher v. Canada (MCI) 2024 FC 1187
In Bentaher v. Canada (MCI) Justice Fuhrer assessed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a Libyan citizen who had served in the Libyan military for over 20 years (which included serving in the navy during Gaddafi’s regime). During his service, he reached the rank of Colonel, and in this role, was responsible from 2008 to 2011 in supervising radar communications at the Tripoli naval base, as well as directing Libyan ships to intercept migrant vessels and transferring illegal migrants over to the Libyan security authorities. After the 2011 revolution that saw Gaddafi overthrown, the Applicant resumed naval duties for a few years. On the basis of this service, particularly in his role from 2008 to 2011, the RAD found the Applicant was excluded under Article 1(F)(a). The RAD argued that there was sufficient evidence that the Libyan security authorities (on land) committed crimes against humanity with respect to the migrants. The RAD determined that there were serious reasons in considering that the Applicant had voluntarily made a knowing and significant contribution to crimes against humanity.
On judicial review, Justice Fuhrer found that the single, central issue was whether the RAD’s finding that recklessness satisfies the “knowing” component of the test for complicity in international crimes, was reasonable in light of the Ezokola, 2013 SCC 40 test. The test for culpable complicity by association, as outlined in Ezokola, considered stare decisis and comity. Justice Fuhrer found the RAD’s determination that recklessness satisfies the “knowing” component was not reasonable. In making the decision, the RAD had relied on Hadhiri, 2016 FC 1284, a case which Justice Fuhrer found misconstrued Ezokola. Justice Fuhrer argued that the RAD should have grappled with the Applicant’s arguments with reference to Ezokola-the binding decision. The RAD’s failure to do so resulted in an unreasonable lack of responsive justification. Justice Fuhrer went on to state that “Ezokola cannot be said to stand for the proposition that the “knowing contribution” in the Canadian test for complicity includes recklessness, regardless of what the Supreme Court observed, arguably in obiter, about one of three forms of the international principle of joint criminal enterprise.” (at par. 40). The application for leave was allowed.
Alba Bravo c. Canada (MCI) 2024 CF 1182
In Alba Bravo c. Canada (MCI) Justice Azmudeh explored the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants were Mexican citizens who feared being kidnapped, beaten or killed by the Los Pelones drug cartel. The Applicants alleged they were targeted by the cartel after failing to pay a sum imposed upon them by the cartel on their business (owned by the female Applicant). While both the Refugee Protection Division (RPD) and the RAD found the claim credible, the matter was dismissed due to a viable internal flight alternative (IFA). On judicial review, Justice Azmudeh found that the RAD had most likely copy pasted from other decisions in such a way that made the reasons unintelligible. As an example, the RAD decision mentioned the Applicants being engaged in agricultural work, which they were not. Moreover, despite the fact that the RPD’s IFA analysis focused on Mexico City and Campeche, the RAD found that IFAs were available in Cancun or Merida. However, Cancun was where the incidents took place, and Merida has never been mentioned as an option. These repeated errors undermined Justice Azmudeh’ s confidence that the decision maker adequately considered the issue. Lastly, the Applicants were entitled to make submissions when it came to the proposed IFAs and were not awarded that opportunity. The application for leave was allowed.
Yusuf v. Canada (MCI) 2024 FC 1180
In Yusuf v. Canada (MCI) Justice Fuhrer examined the Applicants’ Humanitarian and Compassionate (H&C) decision. The Applicants were a Nigerian couple with three minor children. All Applicants were citizens of Nigeria, with the exception of the youngest child, who was born in the United States. The Applicants also had an adult son residing in Nigeria, and another child who was a Canadian citizen. The Applicants looked to appeal their H&C refusal. On judicial review, Justice Fuhrer found the determinative issue to be the Officer’s best interests of the child assessment (BIOC). The Principal Applicant’s (PA) affidavit contained details on all the children, but the Officer failed to consider them individually, despite the guidance of the Federal Court. In addition, it was unreasonable for the Officer to speculate that as the children had not been educated long enough in Canada, they would not face any challenges in relocating back to Nigeria. Moreover, the fact that the adult applicants had been educated in Nigeria without any obstacles, was in no way indicative of the obstacles their children may face with their education- this was unreasonable. Lastly, the determination that the family’s reunion with their adult son in Nigeria was in the best interest of the minor children was wholly unfounded and speculative. The application for leave was allowed.
Brar v. Canada (MCI) 2024 FC 1176
In Brar v. Canada (MCI) Justice Sadrehashemi reviewed the Applicant’s Refugee Protection Division (RPD) decision. The Applicant’s claim was deemed abandoned after the Applicant failed to show for his hearing. Two months later, the Applicant applied to re-open the claim, arguing that he had not received the notices for the RPD hearing or the abandonment proceeding. He acknowledged that he had inadvertently failed to update his address with the Immigration and Refugee Board (IRB), however, he had updated his address with Canada Border Services Agency (CBSA) and Immigration, Refugees and Citizenship Canada (IRCC). The Applicant assumed that his address would be automatically updated with the IRB once he notified IRCC. In addition, the Applicant argued that there was a breach of natural justice as the RPD failed to email him at the email address provided. The RPD dismissed his request to re-open the claim. On judicial review, Justice Sadrehashemi found that the RPD had failed to address the Applicant’s argument regarding his email, despite it being the key basis for his request to re-open the matter. The RPD Rules identify email as a means of contact, along with phone number and mailing address. The application for leave was allowed.
Soto Leandro v. Canada (MCI) 2024 FC 1241
In Soto Leandro v. Canada (MCI) Justice Go assessed the Applicant’s Refugee Protection Division (RPD) decision. The Applicant was a Cuban citizen who took part in anti-government protests in July 2021 and as a result, received warning at work. The Applicant was also stopped by the authorities on the street and was questioned at his home. The Applicant left Cuba in 2022, travelling through several countries (including the US) until arriving in Canada and making a refugee claim. The RPD refused the claim due to insufficient credible and trustworthy documentation in support of his claim. On judicial review, Justice Go found that the RPD made several errors. First, the RPD failed to assess the Applicant’s corroborative evidence prior to making its negative credibility findings. This alone rendered the decision unreasonable. Second, the RPD failed to question the Applicant about a critical incident that involved the Applicant receiving a summons and failed to address this incident anywhere in the decision. The application for leave was allowed.
Exavier v. Canada (MCI) 2024 FC 1240
In Exavier v. Canada (MCI) Justice Tsimberis explored the Applicant’s Refugee Protection Division (RPD) decision. The Applicant was a Haitian citizen who married a Chilean citizen. The Applicant had a Chilean stepdaughter and stepson with his wife. The Applicant left Haiti in 2013 for better employment prospects. He met his wife in 2015 and the two had a son born in 2016. The Applicant secured a nine-month temporary residence status from the Chilean government, but his status was not renewed upon expiry. In 2019, the Applicant’s neighbours threw stones at his home as they were hostile to Haitian migrants. The Applicant left Chile in 2019, travelling through multiple countries, until he arrived at the United States (US) in January 2021. He was deported back to Haiti in February 2021. The Applicant remained in Haiti until April 2021. During this time, he joined a local citizen’s committee, was threatened by a masked man for allegedly introducing foreign political views to Haiti and was attacked by a masked men who beat him and threatened his life. The Applicant left Haiti for Mexico in 2021, then crossed into the US and made his way to Canada. The RPD refused his claim, finding that he was excluded under Article 1E on the basis of Chile as a country of reference.
On judicial review, Justice Tsimberis found the RPD unreasonably determined that there was no need to assess the Applicant’s risk in Haiti as the RPD had already determined that the Applicant faced no risk in the country of reference. Whether the Applicant could or could not go back to Chile, the Applicant was seeking asylum from his home country, Haiti, and the RPD failed to do the Zeng assessment. In this case, the second and third prong of the Zeng assessment was required; this included the requirement to asses risk in the Applicant’s home country. While the RPD had a myriad of reasonable credibility findings, this did not absolve the RPD for reasonably conducting a complete assessment of the third prong of the Zeng test. The application for leave was allowed and the matter was to be remitted by a different panel on the redetermination of the third prong test.
Velazquez Jimenez v. Canada (MPSEP) 2024 FC 1235
In Velazquez Jimenez v. Canada (MPSEP) Justice Grant examined the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant was a Cuban citizen whose PRRA was refused due insufficient corroborative evidence to substantiate his allegations of risk. The Officer had accepted that the Applicant had participated in political protests and that Cuba engaged in widespread acts of political persecution. Nevertheless, the Officer found that the Applicant failed to establish how his situation rendered him at a higher risk than the rest in Cuba. The decision under review was the only risk assessment that the Applicant received, as he was ineligible to seek asylum due to his immigration history with the United States. The PRRA Officer, Justice Grant found, did not directly question any of the factual claims made by the Applicant regarding his participation in the protest, his arrest and detention, or the interrogations, abuse, intimidation, and other consequences he faced.
On judicial review, Justice Grant found that the Officer did not need to accept these sworn factual claims, but if there were credibility doubts, a hearing was likely required. In the absence of a hearing and lack of a clear credibility finding, the Officer was obligated to consider the Applicant’s risk on the basis of the facts. Justice Grant noted that in some cases, claimed facts may not be enough to establish, on a balance of probabilities, broader questions of risk. However, it is not generally reasonable for an Officer to find that an uncontested factual claim is insufficient to establish that very fact- and that is exactly what the Officer did. The Office had misapprehended, disregarded, or mischaracterized the evidence in a way that was contrary to the Officer’s conclusion, rending the decision unreasonable.
Justice Grant also found the Officer made two distinct errors when it came to s.96 and s.97 of IRPA. The first was finding the Applicant faced more than generalized risk of harm. This was another example of the Officer’s disregard of the evidence, which was replete with the authorities’ specific, repeated, and individualized targeting of the Applicant. The evidence on record also further suggested that political protestors who had participated in the same protest as the Applicant (especially those identified by the authorities) faced far greater risk than the general population. Rather than looking to see how this evidence might relate to the Applicant, the Officer used it for the purposes of establishing how that human rights were widespread in Cuba and support the determination that the Applicant failed to adequately establish how his situation placed him at a greater risk than then general populus. The only conclusion that Justice Grant could draw from the Officer’s findings was that the Officer misunderstood the term “generalized” in the s.97 context, or that the determination was made in disregard of the evidence on hand. The second error that the Officer made was conceptual, with the decision suggesting that the Officer unreasonably confused the s.96 and s.97 analysis. The application for leave was allowed.
Mannsbach v. Canada (MPSEP) 2024 FC 1179
In Mannsbach v. Canada (MPSEP) Justice Go examined the Applicant’s deferral request refusal. The Applicant had sought deferral of his removal due to a number of factors, one of which was to support his aunt during her final days battling a terminal illness. The deferral request was refused, but in March 2023, the Applicant was successful in securing a Stay of removal until a determination of his judicial review. On judicial review, Justice Go found that the Officer erred in finding that there was not enough information to establish the aunt’s imminent passing. The applicant had submitted numerous documents concerning his aunt’s terminal illness, including a sworn affidavit from his cousin (the aunt’s daughter) that described the aunt’s condition as worsening and the fact that she had been transitioned to palliative care. By finding that there was insufficient information regarding the aunt’s imminent passing, the Officer made no mention of the cousin’s affidavit; this was an error.
In addition, Justice Go was not convinced that Forde, 2018 FC 1029, established a hard temporal limit for an enforcement officer’s discretion to defer removal. “[T]he Court in Forde did not impose an exact outside limit. ‘[A] few months or so,’ with all due respect, is too imprecise a standard to be implied to all deferral requests, each of which must be determined based on the facts before the enforcement officer” (at par. 18). Justice Go found that “pending deaths can permissibly influence removal, even under the narrowest interpretation of s.48 of IRPA. No matter how limited the discretion may be to defer removal, “there is nothing to stop an enforcement officer from exercising their discretion with an element of compassion and understanding. When dealing with an applicant facing the pending passing of a loved one, rather than focusing on requiring absolute proof of when that day may come, an officer could consider granting a short deferral, and if necessary, request timely updates” (at par. 26). The application for leave was allowed.