Sesay v. Canada (MCI) 2025 FC 167
In Sesay v. Canada (MCI) Justice Sadrehashemi examined the Applicants’ Refugee Protection Division (RPD) decision and exclusion finding under Article 1E. Out of the five Applicants, four held citizenship in Sierra Leon, as well as permanent resident status in Brazil. The fifth Applicant was solely a citizen of Brazil and held no status in Sierra Leon, making her exempt form the exclusion. The RPD proceeded to apply the same risk assessment to the fifth Applicant regarding forward-looking risk in Brazil under s. 96 and 97 of IRPA, ultimately concluding that none existed. On this basis, the RPD refused the fifth Applicant’s refugee claim against Brazil and found the other four Applicants excluded under s.98 of IRPA and Article 1E.
On judicial review, Justice Sadrehashemi found the RPD’s decision unreasonable, as the RPD made several findings based on weak inferences unsupported by the evidence on record. Justice Sadrehashemi had asked the parties to provide submissions addressing Tshimuangi, 2024 FC 1354, a recent decision that commented on the ability of the RPD or the Refugee Appeal Division (RAD) to consider a claimant’s risk in their country of residence in the context of an exclusion finding under Article 1E and s.98 of IRPA. All parties, including Justice Sadrehashemi, agreed that the RPD applied the appropriate legal framework when it came to exclusion.
When it came to Tshimuangi, Justice Sadrehashemi made several comments, the main concern being the absence of legislative authority for the RPD and the RAD to make risk assessments in relation to a claimant’s country of residence when assessing exclusion under Article 1E. Justice Sadrehashemi referenced MB8-00025, a Jurisprudential Guide on the interpretation of Article 1E where the person alleges mistreatment in their country of residence. In Tshimuangi, both the Minister and the Applicant agreed with the approach outlined in MB8-00025, finding that a risk claim ought to be assessed in the country of residence prior to making an exclusion determination under Article 1E. The Court in Tshimuangi found the above position “indefensible” as the interpretation being advanced required “reading into the text” and resulted in approach that “usurped the role of Parliament.” (par. 20) Justice Sadrehashemi did not share the above concern. Even if the text of Article 1E was considered to be unambiguous, the interpretation of Article 1E is not restricted to text. Justice Sadrehashemi argued that the obiter in Tshimuangi was counter to the demand that “the meaning of the incorporated Articles of the Refugee Convention must be determined in accordance with the Vienna Convention” (at par. 21). Article 31 of the Vienna Convention states that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” In the Jurisprudential Guide, the RAD undertook this interpretive exercise and found that the “RPD and the RAD are required, where a claimant asserts risk in the country of residence, to assess whether the claimant can access protection there before an exclusion finding is made. If a claimant is to be excluded because of the availability of international protection elsewhere, an assessment has to be done to ascertain that this protection is, in fact, forthcoming” (at par. 24).
In this case, the RPD followed the same reasoning as used in the Jurisprudential Guide. Having reflected on Tshimuangi, the parties submissions, and the Jurisprudential Guide, Justice Sadrehashemi found the RPD’s approach to be reasonable in assessing risk in Brazil prior to the exclusion order. The application for leave and judicial review was allowed.
Moradi v. Canada (MCI) 2025 FC 175
In Moradi v. Canada (MCI), Justice Battista reviewed the Applicant’s cessation decision. The Applicant successfully claimed asylum in 2017 and secured permanent residence in 2019. In October 2018 the Applicant applied for an Iranian passport so that she could finalize her divorce. The Applicant proceeded to travel on the passport for a period of 22 days in 2019, to visit her sickly father. On the basis of this trip, the Refugee Protection Division (RPD) allowed the Minister’s cessation application.
On judicial review, Justice Battista found that the RPD made two errors. The first was the misapplication of the reavailment test. The Applicant testified that she was not aware that her return to Iran would jeopardize her status in Canada, and the RPD had no credibility concerns when it came to this assertion. Rather, the RPD assessed the intention factor on what the Applicant “should have know” instead of what the Applicant knew. The RPD also treated the evidence of the Applicant’s passport use as sufficient to establish both intent and “actual reavailment” components of the test.
The second error resulted due to the mistreatment of the Applicant’s precautionary measures evidence. The Applicant argued that her measures demonstrated that she did not intend to entrust her protection to Iran. Despite no adverse credibility finding, the RPD found that the Applicant had “not remained in hiding.” This finding was contradictory to the direct evidence on file. It was unclear to Justice Battista whether the RPD overlooked or misunderstood the precautionary measures evidence, resulting in an unintelligible finding. Lastly, the Applicant relied on the from Galindo Camayo, 2022 FCA 50 principles when it came to her precautionary evidence, that noted that evidence of precaution is relevant to an intention to reavail. While the RPD did not disbelieve the evidence, the RPD failed to explain its impact on the Applicant’s submissions regarding her lack of intent to reavail. This too rendered the decision unintelligible. The application for leave and judicial review was allowed.
Nyamondo v. Canada (MCI) 2025 FC 149
In Nyamondo v. Canada (MCI) Justice Ahmed assessed the Applicant’s Humanitarian and Compassionate (H&C) application refusal. The Applicant, a Tanzanian citizen, had been in Canada since 2019. The Applicant had three minor children in Kenya, whom she was supporting financially as a single parent. In 2023, the Applicant’s H&C was refused. On judicial review, Justice Ahmed found that the Officer made a reviewable error by using the Applicant’s non-compliance with Canada’s immigration laws to diminish an otherwise laudable establishment. The Officer diminished the Applicant’s establishment due to her lack of status and lack of evidence on her assertion that she would not be able to return to Tanzania as she would become destitute. Justice Ahmed found that “this is simply a hardship analysis in place of an establishment analysis and a mischaracterization of the relevant legal test” (at par. 21). Moreover, the Officer’s best interests of the child (BIOC) assessment was heavily flawed. The Officer argued that the BIOC favoured the negative decision as the Applicant’s removal would result in the Applicant being closer to her children. This statement failed to consider the individualized interests of each child or take into account the evidence that the Applicant relied on her Canadian income to support her three minor children. It was not open to the Officer to speculate that the Applicant’s removal would be in the best interest of the children, considering evidence was provided to the contrary. Justice Ahmed found that the Officer’s BIOC assessment was void of compassion. The application for leave and judicial review was allowed.
Nanan v. Canada (MPSEP) 2024 FC 138
In Nanan v. Canada (MPSEP), Justice Grammond probed the Applicant’s inadmissibility finding. The Applicant was a citizen of Cote d’Ivoire who was seeking judicial review of his Immigration Division (ID) decision, which found him inadmissible under ss.34(1)(c) of the IRPA. The ID found that there were reasonable grounds to believe that the Applicant was a member of the Congres panafricain des jeunes patriotes (COJEP), an organization that had engaged in terrorist acts during the 2010 presidential elections.
On judicial review, Justice Grammond found the ID’s decision to be reasonable, and that the Tribunal clearly understood that the specific intent to cause death, or serious injury is essential for a terrorism finding. With the evidence on hand, it was open to the ID to find that there were reasonable grounds that the COJEP had such intent during the violent events that occurred during the 2010 elections. Justice Grammond also found that the ID’s determination that the Applicant was a member of COJEP to be reasonable and supported by evidence.
Justice Grammond noted that there is consensus that “proof of specific intent to cause death or serious bodily injury is an essential element of the definition of terrorism” (at par. 19). It is not sufficient to show general intent to use violence, as such, the burden of proof is different from that of a criminal trial. “The belief that a terrorist act has been or will be committed must therefore have “an objective basis . . . which is based on compelling and credible information”: Mugesera at paragraph 114” (at par. 22). Applying the above can be problematic in the context of allegations that an organization has engaged in terrorism and on this point Federal Court members have adopted different approaches. In the case at hand, Justice Grammond set out his own understanding of the matter. Justice Grammond argued that when considering whether an organization has engaged in terrorism, it is the mental state of the organization’s directing minds that is relevant (at par. 23). To prove the mental state, it is possible to rely on circumstantial evidence, but the consequences of an act do not suffice to prove specific intent (at par. 24). Rather, the decision maker must analyze the full context to see if there are reasonable grounds to believe that the leaders of the organization had the intent to cause death or serious bodily harm. In M.N., 2019 FC 796, Justice Grammond had proposed four non-exhaustive factors that may be relevant to this analysis: (1) the circumstances in which violent acts resulting in death or serious bodily harm were committed; (2) the internal structure of the organization; (3) the degree of control exercised by the organization’s leadership over its members; and (4) the organization’s leadership’s knowledge of the violent acts and public denunciation or approval of those acts (at par. 25).
The Applicant argued that the ID failed to apply the specific intent test when making the determination that the COJEP had engaged in terrorism in 2010-2011. Justice Grammond disagreed. There was no doubt that the ID’s determination in this regard was supported by the evidence. With respect to the evidence, it was reasonable for the ID to reach a different conclusion when it came to the events of 2004-2006 and those of 2010-2011. Justice Grammond found that the ID rightly drew the distinction between violent demonstrations that got out of control, and an organized campaign of killings designed to terrorize a population. Justice Grammond also did not have an issue with the ID’s treatment of acquittals of certain persons at the International Criminal Court as a different standard of proof applied. When it came to the intent of the COJEP, Justice Grammond referred back to the factor in M.N.. In Foisal, 2021 FC 404, Justice Grammond added that it is possible to draw inspiration from the principles governing the criminal liability of organizations, particularly the principle that this liability is associated with that of their directing mind (at par. 45). In the case at hand, the ID’s decision showed the correct application of the relevant principles to conclude that the COJEP engaged in terrorism. Lastly, Justice Grammond dismissed the Applicant’s “armed conflict exception” argument, as it was not raised before the ID.
Justice Grammond also considered whether the Applicant was a member of COJEP. The Applicant submitted that his membership in COJEP had to be assessed according to the test set out in Ezokola, 2013 SCC 40. However, in Kanagendren, 2015 FCA 86, the Federal Court of Appeal held that the Ezokola test is not applicable to the definition of membership in an organization for the purposes of s.34 of the Act (at par. 57). Justice Grammond was aware that the flexible approach to establishing membership for the purposes of s.34 has given rise to criticism; it has been suggested that removing individuals who have only slight links to terrorist organizations may violate the non-refoulement principle arising from the Refugee Convention and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (at par. 58). Justice Grammond stated that the Federal Court of Appeal may wish to reconsider Kanagendren, particularly in light of Canadian Council for Refugees, 2023 SCC 17, and Mason, 2023 SCC 21. In the meantime, however, Justice Grammond remained bound by Kanagendren. Based on the evidence at hand, Justice Grammond found no basis to intervene with the ID’s findings that the Applicant was a member of COJEP during the relevant period. The application for judicial review was dismissed and Justice Grammond certified the following question:
Was the legal and analytical framework applied by the Immigration Division in this case to establish COJEP’s specific intent to cause death or serious injury reasonable?
Mortezaei v. Canada (MCI) 2025 FC 4
In Mortezaei v. Canada (MCI) Justice Zinn examined the Applicant’s request to reopen a decision that refused to consider him for inclusion (with a Humanitarian and Compassionate exemption) on his mother’s application for permanent residence under the Protected Persons class. In February 2021, with the aid of a representative, the Applicant’s mother attempted to amend her permanent residence application to include the Applicant as a dependent. At the time, the Applicant was 33 years old and no longer qualified as a dependent child. In the request, counsel indicated that they would be seeking an exemption from the age requirement pursuant to s.25(1) of IRPA. In September 2021, the Officer refused to add the Applicant as a dependant, and the next day counsel responded, reiterating the request to include the Applicant on H&C grounds. In October 2021, the Officer issued a formal refusal, without giving the Applicant an opportunity to make H&C submissions. Counsel had made a request to re-open the application to make H&C submissions, but the Officer confirmed the refusal and denied the request.
On judicial review, there were two questions raised: 1) Whether the Officer’s breached procedural fairness failed to follow the procedures outlined in “OP 24 Overseas Processing of Family Members of In-Canada Applicants for Permanent Residence” [OP24] when processing the applicant’s request to be added as a dependent to his mother’s application for permanent residence; and 2) Whether the Officer’s refusal to reopen was reasonable when he treated a procedural fairness-based reopening request as a merit-based reconsideration. Justice Zinn found that the Officer breached the duty of fairness. OP 24 brought about a legitimate expectation about procedures for overseas family members, which was breached in this case. The Applicant was denied an opportunity to have his H&C considerations and eligibility assessed in accordance wit OP 24. This procedural flaw was determinative of the application. The application for judicial review was allowed and the matter was to be sent for reconsideration. Specifically, the Applicant was to be permitted to put forward evidence on the H&C grounds for his inclusion in his mother’s application, notwithstanding his age.