Khan v. Canada (MCI) 2023 FC 727

In Khan v. Canada (MCI), Justice O’Reilly examined the Officer’s decision to refuse the Applicant’s humanitarian and compassionate (H&C) application. The Applicant was a citizen of Afghanistan, who fled the country fearing persecution due to being a member of an ethnic minority, the Kochi. He originally travelled to Brazil, and then entered the United States (US) where he made a refugee claim. After 14 months of detention, the Applicant decided to come to Canada and make a refugee claim but was ineligible due to his pending US claim. However, the Applicant was allowed to submit a humanitarian and compassionate (H&C) application. Unfortunately, the application was ultimately refused due to the Officer finding the Applicant could have sought asylum in Brazil, as well as had the option to return safely to the US to await the decision of his pending US claim. On judicial review, Justice O’Reilly found that the Officer had no evidence before him to conclude that the Applicant could return to the US. While the Applicant had a valid US work permit, that could potentially allow re-entry, the Applicant had no status in the US and could still face deportation back to Afghanistan. Justice O’Reilly found that the Officer should have considered this risk. Furthermore, the Officer had overlooked the fact that the Applicant did not have any travel documents and could not obtain any due to the Afghan Consulate in Canada stopping the issuance of passports. Justice O’Reilly concluded that the Applicant’s H&C should have been assessed based on the hardships and risks the Applicant would face should he be returned to Afghanistan, not the US. The application for leave and judicial review was allowed.

Foster v. Canada (MPSEP) 2023 FC 721

In Foster v. Canada (MPSEP) Justice McHaffie assessed the Officer’s decision to refuse the Applicant’s deferral request. The Applicant had based the request on the health of his three Canadian children (two of whom had autism, and one with cardiac issue), as well as the mental health of their mother (who had serious mental health issues and was recently diagnosed with bipolar disorder). The Applicant had emphasized the mother’s difficulty for caring for the special needs children, and his role as the primary caretaker and breadwinner. The Applicant noted that should he be removed to Saint Lucia, the whole family would be removed there, given the Applicant’s role. Lastly, the Applicant stressed the importance of the mother and children continuing their medical treatment in Canada, given the lack of specialized care in Saint Lucia for those with autism. The Applicant’s deferral request was refused, but the removal was stayed pending the outcome of the appeal. On judicial review, Justice McHaffie found that while the Officer had superficially address the best interests of the children, the Officer failed to take into consideration and assess the primary basis of the deferral request- the mental health of the mother and her inability to look after her special needs children. This rendered the decision unreasonable. The Applicant had also requested that the Court issue an order, directing CBSA to allow the Applicant to make a new PRRA application with a “statutory stay,” but Justice McHaffie did not agree that the request was appropriate. The application for leave and judicial review was allowed.

Ditomène c. Canada (MIRC) 2023 FC 698

In Ditomène c. Canada (MIRC) Justice St-Louis reviewed the Refugee Protection Division’s (RPD) decision to refuse the Applicant’s asylum claim, for failing to establish his identity as a citizen of the Democratic Republic of Congo (DRC) and for his claim having no credible basis. On judicial review, Justice St-Louis found that the RPD had failed to properly address the Applicant’s certificate of nationality. The RPD had not dispute that the Applicant had filed evidence before the tribunal, including a certificate of nationality, and a letter from the DCR that disclosed that the Applicant had submitted an application for a passport. However, the RPD determinedly stated that as the Applicant had never possessed proof of his nationality, little weight and analysis would be given to the Applicant’s certificate of nationality. The application for leave and judicial review was allowed.

Jung v. Canada (MPSEP) 2023 CanLII 43034

In Jung v. Canada (MPSEP) Justice Gleeson assessed the Officer’s decision to refuse the Applicant’s deferral request. The Applicant was a North Korean defector, who claimed refugee status in Canada in 2010, but failed to disclose that he had resettled in South Korea. His refugee protection was vacated on grounds of misrepresentation. The Applicant’s Pre-Removal Risk Assessment (PRRA) was refused in 2019, and his humanitarian and compassionate (H&C) application was refused in 2021. In January 2022, the Applicant failed to show up for his removal, and an arrest warrant was issued. In August 2022, the Applicant’s wife submitted a spousal sponsorship application. In March 2023, the Applicant received a direction to report for removal, which he responded to by submitting a deferral request, asking that removal be deferred until he received a decision on his spousal. The Officer refused the Applicant’s request, which is the underlying refusal under review.  On judicial review, the Applicant alleged that there were several issues arising from the Officer’s refusal: a) the Officer failed in exercising their discretion when faced with a compelling spousal sponsorship where a final decision was near; and that b) the Officer failed to assess the phycological evidence and the impact the removal would have on the Applicant’s mental health. Justice Gleeson was satisfied that the Applicant had raised at least one issue on an elevated standard, and that when taking in the Applicant’s circumstances (as a whole), demonstrated a real risk of irreparable harm. Justice Gleeson also considered the balance of convenience and the strong public interest in enforcing IRPA. Justice Gleeson noted that the Applicant did not come before the Court with clean hands, however, had proactively identify and address the nature of the non-compliance in the form of a statutory declaration. In this case, Justice Gleeson noted that the Applicant’s non-compliance was a result of significant personal trauma and previously unassessed mental health issues. When weighing the significant interests, and the Applicant’s unique circumstances,  Justice Gleeson concluded that the Applicant had satisfied the two other branches of the Toth test and that the balance of convenience had to follow. The stay motion was granted.

Fazekas v. Canada (MCI) 2023 FC 666

In Fazekas v. Canada (MCI) Justice Norris explored the Officer’s decision to refuse the Applicant’s criminal rehabilitation application as the Officer was not satisfied that the Applicant would not reoffend. The Applicant was a citizen of the United States (US), who between 1991 and 2003 was convicted of almost 40 criminal offences in the US. The Applicant’s criminal streak came to and end after the Applicant took control of his addictions and became the caregiver for his aging parents. Since 2003, the Applicant had become steadily employed and gained insight into his deviant ways, with only one blemish on his record in 2012.  Nevertheless, as a result of his US criminal record, the Applicant was inadmissible to Canada and his criminal rehabilitation application was refused. On judicial review, Justice Norris found the Officer’s decision was flawed as it lacked intervening analysis on the relevance of the probative values of the various factors the Officer listed, failing to address the fundamental question of whether the Applicant was likely to reoffend. Justice Norris acknowledged that the Applicant had an extensive criminal record, however, it was also dated. The Applicant had also put forward a substantive amount of evidence that showed the changes in his life. Justice Norris concluded by finding that the Officer’s lack of explanation as to why the Officer was not satisfied that the Applicant had turned his life around made the decision unreasonable. The application for leave and judicial review was allowed.