Adair v. Canada (MCI) 2023 FC 342

In Adair v. Canada (MCI) Justice Rochester examined the Officer’s decision to refuse the Applicants’ sponsorship application due to the Principal Applicant (PA) not meeting the definition of a member of the family class. The PA originally arrived from St. Vincent to Canada in 2000 but was without status by 2002. In 2006 an exclusion order was issued against her and she, and her two Canadian born children, returned to St. Vincent. The PA had an aunt who was a Canadian citizen and wished to sponsor the PA and put forward a sponsorship application. Unfortunately, it was refused as the PA did not meet the definition of a member of the family class and the Officer refused the request for an exemption on the basis of humanitarian and compassionate grounds. On judicial review, Justice Rochester found that the Officer’s assessment of the best interests of the child (BIOC) was unreasonable. The Officer had failed to consider a scenario wherein the PA’s daughter would return to Canada with her mother (PA), which should have been done as part of the BIOC assessment. The application for leave and judicial review was allowed.


Dos Santos E Silva v. Canada (MCI) 2023 FC 341

In Dos Santos E Silva v. Canada (MCI) Justice Rochester assessed the Refugee Appeal Division’s (RAD) decision to exclude the Applicant pursuant to Article 1F(b), as he had committed serious non-political crimes in the US (a narcotic related offence in 2002, and driving under the influence in 2016). In December 2018, the maximum penalty for driving under the influence was increased to ten years under Canada’s Criminal Code. This increase led the RAD to conclude that the Applicant’s crime was presumed to be serious, relying on the Supreme Court’s assertion in Febles, 2014 SCC 68 that: “where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious.” The RAD also noted that the factors set out in  Jayasekara  did not negate the presumption of seriousness in the present case.

The Applicant had argued that as the offences took place in 2016, the RPD was bound to consider it against the Criminal Code provisions in effect at that time (as per the precedent set in Tran, 2017 SCC 50). The RAD did not agree with the Applicant’s argument, and instead relied on the Federal Court of Appeal’s decision in Sanchez, 2014 FCA 157, which explicitly stated that the RPD should consider the penalty at the time of the assessment when determining exclusion under Article 1F(b).  On judicial review, Justice Rochester was not convinced that the RAD was bound to apply the analysis of 1F(b), and found that the RAD did not err when relying on the decision in Sanchez. Justice Rochester argued that there was no indication that Tran’s application went beyond s.36(1)(a) of the IRPA, whereas Sanchez specifically addressed the fact that “if a change to the penalty for the Canadian equivalent offence has occurred, the assessment should be done at the time when the Refugee Protection Division is determining the issue of the section 1F(b) exclusion.” Justice Rochester concluded by stating that the RAD did not err in their application of Sanchez.

The Court lastly addressed the Applicant’s request to certify a question, and that is “whether the decision of the Supreme Court of Canada in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, has altered the benchmark of time for determining the seriousness of the offence in exclusion, as well as admissibility, cases, thereby bringing refugee claimants into parity with all other applicants seeking to enter Canada?”  Justice Rochester found the Applicant’s case to be an outlier case. Justice Rochester argued that it was reasonable for the RAD to follow the precedent set out in Sanchez.  Furthermore,  the Federal Court of Appeal should also have the ability to revisit the precedent set out in Sanchez,  should they wish to do so (in light of Tran and the arguments put forward by the Applicant). Justice Rochester concluded by stating that the Applicant’s question would not change the outcome of the appeal, as the Applicant’s narcotic charges alone were enough to exclude him. For reasons listed above, Justice Rochester did not certify the question and the Applicant’s appeal was dismissed.


Azariashvili v. Canada (MPSEP) 2023 FC 337

In Azariashvili v. Canada (MPSEP)  Justice Heneghan reviewed the Immigration Division’s (ID) decision to find the Applicant inadmissible under s.35(1)(a) of the IRPA. The Applicant had been employed with the Georgian Ministry of Internal Affairs from December 2005 until August 2008, working with the Constitutional Security Department (CDS) as a part time personal fitness trainer for the CDS Special Forces unit, but not combat training.  The ID found that not only did the Applicant have knowledge of the CDS’ crimes against humanity, but also contributed to their purpose and had done so voluntarily. On judicial review, Justice Heneghan found that while the ID did not err when it came to its choice of test for complicity, the ID failed to explain its reasoning for why or how the Applicant’s actions contributed to the CDS’ criminal purposes. Justice Heneghan deemed the ID’s decision unreasonable and the application for leave and judicial review was allowed.


Mvana c. Canada (MCI) 2023 FC 329

In Mvana c. Canada (MCI) Justice Roy certified the question put forward by the Applicant, who was seeking to challenge the constitutionality of s.36(3)(a) of IRPA, arguing that it was inconsistent with s.15(s) of the Charter.  The Applicant argued that the provisions of s.36(3)(a) of IRPA regarding inadmissibility under section s.36(1) of IRPA (serious criminality) and s.36(2) of IRPA (criminality) lead to unequal treatment of citizens and non-citizens who were found guilty as a result of a summary conviction. Justice Roy found that the existence of s.6 of the Charter prevents the infringement on s.15(1) of the Charter. Section 6 of the Charter states that “[e]very citizen of Canada has the right to enter, remain in and leave Canada,” thusly setting out the difference of treatment when it comes to citizens and non-citizens. In paragraph 83, Justice Roy noted that it is importance of differentiating and identifying the separate elements of the deportation regime, other than highlighting the differentiation made between citizens and non-citizens, to be able to attack its constitutionality. The judicial review was dismissed as the allegation was not made out.


Ganaden v. Canada (MCI) 2023 FC 325

In Ganaden v. Canada (MCI) Justice Norris examined the Officer’s decision to refuse the Applicants’ humanitarian and compassionate (H&C) application. The Principal Applicant (PA) had originally entered Canada on a work permit in 2013, and was joined later by her husband, who also entered on a work permit, in 2017. Their son, born in 2007, was left in the care of the grandparents back in the Philippines. In 2019, the Applicants welcomed a second child, and in October 2020 they submitted their unsuccessful permanent residence application. On judicial review, Justice Norris found that the Officer’s assessment when it came to the best interests of the child (BIOC) was unreasonable. The Officer unreasonably focused on whether the Canadian born child’s needs would be met should the family be returned to the Philippines, implying that a child’s interest in remaining in Canada are somewhat minimized if the alternative meets their basic needs. Justice Norris reaffirmed the Officer’s unreasonableness when it came to the BIOC assessment, and the application for leave and judicial review was allowed.


Fashuba v. Canada (MCI) 2023 FC 302

In Fashuba v. Canada (MCI) Justice Ahmed assessed the Refugee Appeal Division’s (RAD) decision to dismiss the Applicants’ refugee claim appeal due to the availability of an internal flight alternative (IFA). The Applicants, a family of four from Nigeria, had initially sought asylum in Canada based on threats from traditionalist. The Applicants had a daughter who had died in September 2017 while undergoing female genital mutilation. The Principal Applicant (PA) had reported the traditionalist to the Police, which prompted the traditionalist to threaten to kill the PA’s family and resulted in the PA’s family’s relocation to Lagos, Nigeria. Unfortunately, the traditionalists located the family in Lagos, and the family then travelled to the US in 2017. The PA had briefly returned to Nigeria in January 2018, but after learning that the traditionalists were still looking for him, left Nigeria, and the family arrived in Canada in August 2018, making a claim for asylum.  In November 2020, they learnt that their home in Lagos was ransacked by unknown men. The RPD had refused their claim, and the RAD had dismissed their appeal due to an exitance of an IFA in Port Harcourt. On judicial review Justice Ahmed found that the RAD’s ascertainment that the Applicants had failed to provide sufficient evidence when it came to the motivation and means of the traditionalists to be made without regard to the full record of evidence. While the RAD accepted the traditionalists were motivated to pursue the Applicants and had the means to do so, the RAD erred with equating the traditionalists’ lack of further attempts to contact the Applicants as a sign that no harm awaited upon return to Nigeria. The evidence on record showed that the traditionalists were aware of their relocation to Canada, making it unreasonable to assume that the Applicant’s faced lack of harm in the IFA. The application for leave and judicial review was allowed.