Palagot v. Canada (MCI) 2023 FC 214

In Palagot v. Canada (MCI) Justice Petney examined the Refugee Protection Division’s (RPD) decision to refuse to re-opening the Applicant’s asylum claim. With the aid of a fraudulent consultant, the Applicant had initially sough asylum, but due to an incorrect address disclosed on the forms, the Applicant missed vital communication from the Immigration and Refugee Board (IRB) and the claim was deemed abandoned. With the aid of new counsel, the Applicant attempted to re-open the matter, but the request was dismissed as at the time the IRB had also contacted the Applicant by phone, and the Applicant had failed to provide the correct address information then. The Applicant’s counsel submitted a second request that the matter be reopened anew, submitting  an affidavit from the Applicant that stated that the Applicant a) did not understand the forms he was signing as they were not translated to him, b) while acknowledging that he spoke with an IRB agent, he had a hard time understanding the agent due to a heavy accent and lack of Spanish translation; and that c)the Applicant did not understand that he had to send his address and email by fax. On judicial review, Justice Petney, found the key issue was the RPD failing to explain its reasoning in doubting the Applicant’s ability to understand English, especially given the conflicting evidence on record. The RPD relied on the Applicant’s signed attestation in the Basis of Claim (BOC), as him understanding the English language, despite the fact that it was completed by a fraudulent consultant. Moreover, the RPD failed to explain why no credence was given to the Applicant’s sworn affidavit, where he attested that he did not understand English. Justice Petney found this to be unreasonable. While the decision maker had good reasons to doubt the credibility of the Applicant’s evidence, reasonableness demands that the decision maker explain the reasoning that led to the end result.  The matter was sent back for reconsideration by a different decision maker.

Guzman De Pena v. Canada (Citizenship and Immigration) 2023 FC 213

In Guzman De Pena v. Canada (Citizenship and Immigration) Justice Petney assed the Refugee Protection Division’s (RPD) decision to dismiss the Applicant’s claim a second time after it was sent back for redetermination (2020 FC 1135) previously by the Court. The RDP dismissed the Applicant’s claim on the grounds of her fear being a generalized and her claim not falling withing s.97 of the IRPA because “everyone in El Salvador faces a similar risk as the claimant fears experiencing, that of extortion.”  On judicial review, Justice Petney found that the assessment was unreasonable when taking into consideration the unchallenging evidence presented by the Applicant, and that she had been specifically targeted by the group in question. Justice Petney noted that while prior to the threats the Applicant may have experience generalized risk by virtue of operating a store in El Salvador, however that turned into personalized risk after the Applicant began to specifically be targeted by the agent of persecution. The RPD decision was found to be unreasonable and the matter was remitted back to the RPD for reconsideration.

Canada (MCI) v. Alamri 2023 FC 203

In Canada (MCI) v. Alamri Justice Mason reviewed the Refugee Appeal Division’s (RAD) decision to grant the Respondent convention refugee status under s.96. The Respondent had initially applied for refugee protection on grounds that he was at risk for having been a member of the Green World Revolutionary Guard and personal bodyguard to the former Libyan leader, Gaddafi. The Applicant had intervened, finding the Respondent complicit in crimes against humanity and excluded from convention refugee status. On appeal, the RAD had overturned the RPD’s finding due to the Respondent’s actions being deemed “voluntary” and “not significant” enough.  The RAD’s decision was appealed by the Minister (the Applicant). On judicial review, Justice Mason found that the RAD erred by finding  the Respondent’s indirect involvement in the crimes against humanity as mitigating.  Citing Ezokola, “neither personal participation, nor personal proximity to the relevant crimes is necessary to be found complicit in crimes against humanity” (at para. 28), and case law establishes that “individuals may be criminally culpable despite engaging in activities that are seemingly indirect and remote from a crime” (at para. 29). Furthermore, Justice Mason found that the RAD had failed to properly address the Minister’s concerns that the Respondent was criminally complicit through his role as one of Gaddafi’s bodyguards. The applicant for leave and judicial review was allowed.

Su v. Canada (MCI) 2023 FC 193

In Su v. Canada (MCI) Justice Aylen examined the Refugee Protection Division’s (RPD) decision to refuse the Applicant’s claim for asylum. The Applicant had sought asylum on grounds of fear of persecution at the hands of the Chinese authorities for having escaped police custody after he was caught protesting against the appropriation of his land. After his escape, the Public Security Bureau Officer had left a summon at his wife’s parent’s home, accusing him of anti-government actions, slander, and escape from detention. The claim was refused. On judicial review, Justice Aylen identified the determinative issue as that of the summons. Justice Aylen found the RPD’s treatment of the summons lacked in justification and was based on improper speculation. The RPD had found the summons to be fraudulent, despite it matching sample documents from the National Documentation Package (NDP), and based their finding on the speculation as to how the Chinese authorities would rationally behave. Justice Aylen found the RPD’s speculation difficult to reconcile with the NDP evidence  regarding Chinese authorities’ widespread noncompliance with procedural rules. This flawed assessment resulted in a tainted credibility assessment on the RPD’s end. The applicant for leave and judicial review was allowed.

Virk v. Canada (MCI) 2023 FC 143

In Virk v. Canada (MCI) Justice Duchesne assessed the Applicant’s motion to revoke the deemed  discontinuance of their Application for Leave and Judicial Review (ALJR), and an order for accepting the filed Application Record, which they argued was served and filed on time. The Court had originally discontinued the Federal Court matter because it was not perfected  within the time provided by Rule 10 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [FCCIRPR]. This discontinuances arose  from the Court’s new administrative Deemed Discontinuance Practice. Based on the test outlined in the Deemed Discontinuance Practice, the Court stated that the following steps and questions needed to be considered on such a motion (at paras 42-43):S

“Step 1: is there evidence in the Motion Record that the ALJR was not perfected in accordance with and within the time set out in Rule 10 of the FCCIRPR or an Order of the Court because of exceptional circumstances or of a fundamental event that affected the applicant’s ability to perfect their ALJR in a timely manner despite acting diligently? If Step 1 is satisfied, Step 2 can be considered. If Step 1 is not satisfied, then there is no need consider Step 2. Step 2: is there evidence in the Motion Record to satisfy the test for an extension of time? For each of these steps I would add the following observation. Bald statements in evidence are insufficient to address any of the questions at issue in the applicable steps and tests.  The moving party cannot rest with merely telling the Court what happened; it must show what happened.”

The Court went on the clarify the examples of exceptional circumstances or fundamental events would be the presence of a genuine mistake or misinterpretation, that is distinct from “ignorance of the law,  inadvertence or potential solicitor negligence.” (Para 35). On the basis of the above, Justice Duchesne found that the Applicant did not meet step 1 of the  test, and even if it was met, there was no evidence put forward to support an extension of time as per Step 2. The motion was dismissed.