Krishnan v. Canada (MCI) 2025 FC 547
In Krishnan v. Canada (MCI) Justice Saint-Fleur examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was an Indian citizen, who sought asylum in Canada on the basis of his sexual orientation. The Applicant feared harassment, discrimination, and persecution by the police and general society in India as a gay man. Prior to arriving in Canada, the Applicant experienced persecution by the hands of the local police in his hometown due to his sexual orientation.
While the Applicant had established his sexual orientation before the Refugee Protection Division (RPD), which the RAD also accepted, the RPD refused the claim due to viable internal flight alternatives (IFA) in Mumbai and New Delhi. When it came to the first prong of the IFA test, the RAD found there was insufficient evidence that the police continued to have interest in the Applicant or motivated to search for the Applicant. For the second prong of the test, the RAD found that not enough evidence was submitted on the language barrier that would amount to undue hardship. Lastly, the RAD acknowledged that the Applicant would face some level of discrimination and/or harassment as a result to his sexual orientation, but based on country condition evidence, this could be mitigated in large urban centers such as Mumbai and New Delhi. The RAD concluded by finding that the Applicant had not demonstrated that he would need to conceal his sexual orientation to remain safe in Mumbai or New Delhi.
On judicial review, Justice Saint-Fleur found the RAD’s first-prong analysis to be unreasonable. The RAD failed to consider the effects of cumulative discrimination the Applicant would face in the proposed IFAs. The RAD’s finding when it came to the first prong test was solely based on lack of evidence of a continued police interest or motivation to seek the Applicant out. Given the allegations of harassment, discrimination, and persecution made by the Applicant because of his sexual orientation, the RAD should have considered the effects of cumulative discrimination in its first prong test analysis. Asa result, the RAD conflated the first and second branches of the IFA test. The application for judicial review was allowed.
Shams v. Canada (MCI) 2025 FC 544
In Shams v. Canada (MCI) Justice Fuhrer assessed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was a widow, residing with the family of one of her two sons. Both sons were Canadian citizens. The eldest son, who had unsuccessfully attempted to sponsor his mother, passed away from cancer in 2021. This was the Applicant’s second permanent residence application on H&C grounds.
On judicial review, Justice Fuhrer found that the Applicant’s most recent H&C decision was unreasonable for three key reasons. Firstly, the Officer made speculations about whether the Applicant would be accepted under an alternative, temporary program. The decision placed disproportionate weight on the potential availability of a parent/grandparent super visa. Justice Fuhrer noted that the Applicant was without status when she submitted her current application, meaning there was no certainty that a future application for a parent/grandparent super visa would be granted. Justice Fuhrer found that the Officer made assumptions and displayed “a singular lack of empathy” for the Applicant’s situation. Moreover, the Officer unreasonably focused on what the evidence was lacking, rather than was it addressed,
The second error was the application of the “exceptionality” threshold. Reading the decision as a whole, Justice Fuhrer found that the Officer analyzed the Applicant’s situation through the lens of “exceptional circumstances.” Justice Fuhrer found that the Officer’s references to “exceptional circumstances”, in light of the finding that the Applicant’s situation was comparable to that of many others seeking to live with their children in Canada, and that her circumstances were not deemed exceptional, pointed to a reviewable error. The Officer’s decision reflected that an exceptional level of hardship relative to others was required in order to warrant H&C relief, rather than considering the Applicant’s particular circumstances that would make removal from Canada more difficult for them.
The third error was the Officer’s unreasonable best interest of the child (BIOC) assessment. Justice Fuhrer found that the Officer focused on what the evidence was lacking, versus what it did say when it came to the grandchildren. Despite four of the Applicant’s eleven grandchildren providing letters of support, the interests of those grandchildren were not defined, let alone well defined, nor examined with a great deal of attention. Rather, the Officer stated that the well being of the eleven grandchildren was examined collectively. It was not clear what this meant and gave rise to concerns with transparency. The decision reflected the Officer’s unreasonable focus on whether the Applicant’s presence was mandatory for their wellbeing. Lastly, the Officer belittled and discounted this factor by speculating that the Applicant may opt to extend her stay in Canada as a temporary resident. The application for judicial review was allowed.
In Tung v. Canada (MCI) Justice Aylen reviewed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was a 64-year-old Chinese citizen who submitted a second H&C application. The application was based on a) twenty-three years of establishment in Canada; b) best interests of the child; and c) hardship faced upon return to China.
On judicial review, Justice Aylen found that the Officer’s reasons lacked what weight, if any, was assigned to establishment and hardship factors. In light of the above, Justice Aylen was uninformed on whether a proper assessment was made when it came to various factors, and whether a global assessment was made. Justice Aylen states that if the Court was to assume (which it should not have to) that the Officer’s silence was to imply that no weight was assigned to establishment, this was just as concerning. It was hard to comprehend how the Officer determined that almost a quarter century in Canada was not worth positive weight. A “no weight” finding was also problematic in light of Justice Fuhrer’s criticisms at the judicial review of the applicant’s first negative H&C application. The application for judicial review was allowed.
In Kazadi c. Canada (MCI) Justice Saint-Fleur analyzed the Applicant’s Convention Refugee Abroad or Humanitarian Protected Person Abroad class decision. The Applicant was a citizen of the Democratic Republic of Congo, residing in South Africa, where she was granted refugee status. Her husband and daughter were granted permanent resident status in South Africa. The Applicant filed an application for Canadian permanent residence for her and her family under the Convention Refugee Abroad or Humanitarian Protected Person Abroad class, which was ultimately refused.
On judicial review, Justice Saint-Fleur found that the decision was unreasonable due to the Officer’s failure of taking into consideration the personal circumstances of the Applicant and her family when assessing the issue of a durable solution. The application relied on Kediye, 2021 FC 888 wherein Justice Grammond found that the Officer did not take into account the applicant’s personal circumstances and living conditions, focusing solely on the fact that the applicant held rights comparable to those of citizens. This was also true in this case. The Officer failed to take into account the Applicant’s claims regarding her family’s living conditions and chose to rely on general findings when it came to discrimination, xenophobia, and healthcare, compared to the situation in Canada. The Officer did not consider a) an incident where in her daughter was threatened with violence; b) the daughter’s treatment at school; and c) the Applicant’s allegation that she had lost a pregnancy as a result of the discriminatory treatment by medical personnel. The application for judicial review was allowed.