Figarola Ahumada v. Canada (MCI) 2023 FC 246

In Figarola Ahumada v. Canada (MCI) Justice Brown examined the Refugee Appeal Division’s (RAD) decision to refuse the Applicants’ appeal due to credibility findings. The Applicants had initially sought asylum in Canada on the basis of feared persecution from the Principal Applicant’s (PA) ex-partner, a member of the Los Zetas Cartel. On judicial review, Justice Brown found that the RAD erred when making a credibility assessment regarding a) the murder of the PA’s previous boyfriend by her ex-partner, b) the abduction and rape of the PA’s daughter in 2020, c) and disappearance of the PA’s daughter in 2021. Justice Brown granted the application for leave and judicial review as the RAD had failed to grapple with the longstanding and extreme spousal abuse raised by the Applicant, rending the decision unreasonable and unsafe. The application for leave and judicial review was granted.

Ebanks v. Canada (MCI) 2023 FC 240

In Ebanks v. Canada (MCI) Justice Elliot assed the Officer’s decision to refuse the Applicant’s second Humanitarian and Compassionate (H&C) application. The Applicant had originally entered Canada in 2009, on a Temporary Resident Visa, which expired in September 2010. This was followed by an unsuccessful H&C application in 2012, and a refugee claim that was refused in 2013. The Applicant was set to be removed on February 27, 2014, but failed to appear. The Applicant then submitted a second H&C application in 2017, and it was refused in 2019, but that decision was set aside on consent in February 2020. The H&C application was refused a second time and is the application in question with respect to the above appeal. At the time of the judicial review, the Applicant had an outstanding warrant for her arrest. On judicial review, Justice Elliot dismissed the application for leave, having found that the Applicant had “unclean hands” and had been “flouting Canadian law” for the past eight years. While the Applicant claimed that she did not report to CBSA due to fear of her in-laws in Jamaica, this claim was previously assessed by the RPD in 2013, and the RPD found it not credible. As the claim had already been heard and rejected, it was not considered as a sound basis for the Applicant’s decision to not report for removal. Justice Elliot found that the Applicant’s lack of a legitimate explanation for failing to show up for removal, and her failure to present herself before CBSA in what was almost a decade, demonstrated a clear disregard of Canadian Immigration laws and Immigration authorities.  Furthermore, the Applicant’s argument that the Judicial review should be heard regardless of the above, was unconvincing. Justice Elliot stated that the factors to be taken into consideration when making such a discretionary request were “the seriousness of the applicant’s misconduct and the extent to which it undermines the proceeding in question, the need to deter others from similar conduct, the nature of the alleged administrative unlawfulness and the apparent strength of the case, the importance of the individual rights affected and the likely impact upon the applicant if the administrative action impugned is allowed to stand” (at para. 33). Justice Elliot found that the Applicant’s misconduct had been serious. Justice Elliot also stressed that another key consideration when rendering a decision on this matter was the need to deter others from engaging in similar behaviour. The application for leave was dismissed.

Bonilla Monge v. Canada (MCI) 2023 FC 233

In Bonilla Monge v. Canada (MCI) Justice Sadrehashemi reviewed the Officer’s decision to refuse the Applicant’s Humanitarian and Compassionate (H&C) application. The Applicant had originally come to Canada though the Seasonal Agricultural Worker Program. Upon his arrival, his identity documents and passport were seized by his employer forcing him (and other workers) to live in deplorable conditions, subject to employee abuse, and minimal and inconsistent pay. After a year’s time, the Applicant was able to escape and contact the police to aid him with the release of his identity documents. The Applicant dutifully cooperated with the police investigation, and the employers were eventually charged with trafficking of persons. The Applicant then submitted an H&C application, which was centred around the abuse he faced and the assistance he provided to the police with respect to the persecution of his former employer. The H&C Application was refused. On judicial review, Justice Sadrehashemi found that the Officer had failed to properly take into consideration the central basis of the application- the abusive working conditions he faced as a temporary resident worker. In particular, his conditions interrupted his plans for seeking permanent resident status through other routes.  Furthermore, Justice Sadrehashemi noted that the Officer had also discounted the Applicant’s cooperation with the police and made negative inference about the Applicant’s establishment, an inference which was not supported by evidence. Justice Sadrehashemi concluded by stating that the Officer had failed to properly assess the Applicant’s evidence and submissions. The application for leave and judicial review was granted.

Mersha v. Canada (MCI) 2023 FC 230

In Mersha v. Canada (MCI) Justice Diner assed the Officer’s decision to refuse the Applicant’s Pre-Removal Risk Assessment (PRRA) Application on the finding that the evidence provided did not a) establish his active membership with the Wolkait People’s Liberation Front, b) that his political activity led to his arrest, and c) he was currently being pursued by the Ethiopian government. On judicial review, Justice Diner found that the Officer had failed to address key points disclosed in the Applicant’s narrative. Moreover, Justice Diner found that the Officer’s reasoning was based on the weakness of three support letters provided by the Applicant in support of his PRRA. Justice Diner found the Officer’s decision was not responsive to either the Applicant’s narrative, or his counsel’s legal submissions referencing country conditions. By only focusing on the corroborative evidence, the Officer failed to address the central and key components of the Applicant’s narrative. Justice Diner concluded by finding that the Officer’s analysis of the Applicant’s matter, did not show a level of clarity and justification that was required in these circumstances, particularly when the Applicant had never undergone a risk assessment in Canada before. The application for leave and judicial review was granted.

Canada (MPSEP) v. Ukhueduan 2023 FC 189

In Canada (MPSEP) v. Ukhueduan Justice Gascon examined the Immigration Appeal Division’s (IAD) decision to uphold the Immigration Division’s (ID) decision, finding the Respondent not covered by s. 34(1)(f) of the IRPA.  The Respondent had admitted that she was a member of the People’s Democratic Party (PDP) between 2006 and 2015, although she did not become “active” and involved in the political activities until 2011. The Minister had argued that there were reasonable grounds to believe that the PDP was a group the engaged in the subversion against democratic government and acts of terrorism, as per ss.34(1)(b.1) and (c) of the IRPA. When examining the matter, Justice Gascon raised two issues: 1) whether the ID erred in finding the respondent not a member of the PDP prior to 2011? and 2) Did the IAD err in adding a time-related component when assessing whether the PDP engaged in acts as described in  s. 34(1)(f) of the IRPA?  When it came to the first issue, Justice Gascon found that the IAD had erred in their analysis of the Respondent’s membership with the PDP when making the distinction between membership and “active” membership. By doing so, the IAD completely ignored the new threshold for membership set out in FCA precedents.  Justice Gascon stated that nothing in  s. 34(1)(f) of the IRPA  required the member to be a “true” member who contributed to the wrongful actions of the group; a person’s admission of membership is sufficient to meet the criteria. On the second issue, Justice Gascon found the IAD erred in adding a time-related component when assessing the Respondent’s involvement with the PDP.  Justice Gascon noted that there is no temporal component associated with s. 34(1)(f) of the IRPA,  not for the organization or its members, nor between membership and the subversive or terrorist acts of the organization. The wording of the Act refers explicitly to the past, present and future activities of an organization. The IAD’s finding also ignored FCA precedents as well as the specific wording of  s. 34(1)(f) of the IRPA. The exception to the irrelevance of the time-related component (such as a person joining an organization after is had undergone a substantive change, or leaving an organization after it commenced in terrorist or subversive activities) did not apply in this case. The application for leave and judicial review was granted. Justice Gascon declined to certify a question raised by the Minister.