Singh v. Canada (MPSEP) 2023 FC 743

In Singh v. Canada (MPSEP) Justice Gascon reviewed the Applicant’s Refugee Appeal Division (RAD) refusal. On judicial review, Justice Gascon found that due to the incompetence of the Applicant’s former counsel, there was a miscarriage of justice that amounted to a violation of procedural fairness. The Court outlined the tripartite test that was to be met regarding violation of procedural fairness resulting from counsel incompetence: a) the former counsel’s acts or omissions amounted to incompetence; b) a miscarriage of justice resulted from the incompetence, with reasonable probability that should the conduct been different, the result would likewise differ; and c) the former counsel was given reasonable time to respond to the allegations. Justice Gascon argued that the that the determinative issues were whether the former counsel’s acts or omissions amounted to incompetence, and whether there was reasonable probability that had the former counsel’s conduct been different, the result would likewise differ. Justice Gascon found that there was no explanation provided by the former counsel as to why the Applicant’s RAD record was deficient in evidence, why they were unable to gather relevant evidence, or why they were nonresponsive to the Minister’s evidence and submissions. Justice Gascon found that the above failures of the Applicant’s former counsel fell within the category of incompetence and hampered the Applicant’s right to procedural fairness. Justice Gascon was also satisfied that the miscarriage of justice resulted from the former counsel’s incompetence. The record before Justice Gascon was sufficient to demonstrate a reasonable probability that the outcome of the decision would have differed should the incompetence had not occurred. The application for Leave was allowed.

Thompson v. Canada (MPSEP) 2023 FC 730

In Thompson v. Canada (MPSEP) Justice Sadrehashemi examined the Officer’s decision to refuse the Applicant’s deferral request, deeming it moot, as the Applicant had already obtained a stay of removal dependent on the outcome of the present judicial review. The Applicant had lived in Canada since 2014 and sought deferral of removal on the grounds of: a) risks he would face if removed to Jamaica; b) separation from family in Canada; c) support he was providing his aging relatives in Canada; and d) his pending TRP application. On judicial review, the Minister had argued that the Applicant’s application for Leave was moot as removal had ultimately been stayed.  Justice Sadrehashemi disagreed, as the basis on which the deferral was sought had not been addressed. Justice Sadrehashemi further noted that the evaluation of the Applicant’s risk was perfunctory, and not meaningfully addressed. The Applicant’s former counsel had failed to provide legal submissions with the PRRA application and had since been barred from practicing law due to criminal charges related to his immigration practice. Furthermore, the Officer should have considered the positive 2019 RPD decision of the Applicant’s wife and daughter, who were granted refugee status because of the risks they faced in Jamaica due to their association with the Applicant. Justice Sadrehashemi concluded that the Officer’s risk assessment was not sufficient. The application for Leave was allowed. Justice Sadrehashemi also noted that should the Applicant be scheduled for removal from Canada, he was to be given 28 days minimum notice. If the Applicant chose to do another deferral request, it was to be assessed by a different Officer.

Tursunov v. Canada (MCI) 2023 FC 726

In Tursunov v. Canada (MCI) Justice Aylen assessed the Refugee Appeal Division’s (RAD) decision to refuse the Applicants’ appeal due to a viable internal flight alternative (IFA). The Applicants were citizens of Kazakhstan who had fled the country, fearing persecution because of their Tajik identity. Both the Refugee Protection Division (RPD) and the RAD dismissed their claim due to the exitance of a viable IFA. On judicial review, Justice Aylen found that the RAD had failed to take into consideration the Applicants’ argument that their agents of persecution had the means to locate them elsewhere due to the widespread corruption in Kazakhstan. Justice Aylen noted that the RAD was in possession of evidence of the widespread corruption in Kazakhstan before it, and it was expressly relied upon by the Applicants. However, in the RAD’s decision, nowhere was this evidence, or the Applicants’ submissions, referenced. Justice Aylen concluded that the RAD’s decision did not contain a rational chain of analysis, and the RAD failed to properly engage with the evidence and submissions on corruption. The application for Leave was allowed.

P.N. v. Canada (MCI) 2023 FC 725

In P.N. v. Canada (MCI) Justice Ahmed explored the Refugee Appeal Division’s (RAD) decision to refuse the Applicants’ appeal due to them having the right to citizenship in Rwanda, which the Applicants contested. The Principal Applicant (PA), her mother (associate applicant) and her daughter were citizens of Kenya. The associate applicant was born a citizen of Rwanda but had formally renounced it in 1982 to obtain Kenyan citizenship. As a result, the PA and her daughter were both born and deemed Kenyan citizens, as the PA was a child of a parent who was a Kenyan citizen at time of the child’s birth.  Neither the PA nor her daughter ever held Rwandan citizenship. On judicial review, Justice Ahmed found that the RAD’s finding that the Applicants could be granted Rwandan citizenship was made without addressing the evidence provided by the Applicants. The RAD’s treatment of this issue was sufficient to set the decision aside, regardless of whether the RAD itself determined that the issue was not determinative to the Applicants’ case. Justice Ahmed argued that the Applicants’ citizenship was central to their claim. The Applicants had also argued that the RAD made a reviewable error when it came to the RAD’s treatment of the negligence of the Applicants’ former counsel. Despite the RAD finding that the former counsel was negligent in failing to make substantive submissions on Rwandan citizenship, the RAD did not hold an oral hearing or order a new RPD hearing. Justice Ahmed supported this finding. The application for Leave was allowed.

Clarke v. Canada (MCI) 2023 FC 680

In Clarke v. Canada (MCI) Justice Favel reviewed the Officer’s decision to refuse the Applicant’s Humanitarian and Compassionate Application (H&C). The Applicant was a citizen of Grenada who had arrived in Canada at the young age of two, accompanying his mother. The Applicant had lost is permanent resident status after being found inadmissible due to serious criminality (s. 36 (1)(a) of IRPA). The Applicant had submitted an H&C application, which was ultimately refused.  On judicial review, Justice Favel found that the determinative issue was that of the Applicant’s establishment. Justice Favel found that the Officer had failed to address his reasoning as to why the evidence provided was no sufficient and had overlooked the positive establishment factors. Most significantly, Justice Favel found that the Officer had failed to appreciate the Applicant’s 20-year establishment during his formative years and his decision was “devoid of human implication considerations.” The application for Leave was allowed.

Sunara v. Canada (MCI) 2023 FC 675

In Sunara v. Canada (MCI) Justice Gagné examined the Officer’s decision to refuse the Applicants’ Humanitarian and Compassionate Application (H&C). The Applicants (mother and two children) were citizens of Bangladesh, who had filed a refugee claim in 2014. The claim had originally included the children’s father (now divorced from the Applicant), however the father was declared ineligible, and he ultimately returned to Bangladesh. The Applicants were unsuccessful with their refugee claim, their PRRA was refused, as was their first H&C. In May 2021, the Applicants had submitted a second H&C, but it too was refused. On judicial review, Justice Gagné identified two determinative issues: a) the Officer’s consideration of family violence; and b) the Officer’s assessment of medical evidence. Justice Gagné found that the Officer’s reasons were not responsive to the evidence. Despite the Applicants submitting their application under the Family Violence category, the Officer had only mentioned it once in passing, and relied too heavily on the findings of the RPD and RAD.  Furthermore, the Officer failed to consider the Applicants’ evidence that at the time of their claim, they were under harmful influence of the father. The Officer had also failed to take into consideration the new evidence submitted by the Applicants that showed continued risk in Bangladesh, and the exitance of an arrest warrant against the Applicants personally. When it came to the matter of medical evidence, Justice Gagné found that the Officer had systematically discounted it.  The Officer inappropriately required corroborative evidence to support each medical report, failing to see the corroborative nature of the reports themselves. The Officer’s unreasonable rationale resulted in little weight being give to the doctor’s letter, medical evidence, and lack of consideration of the impact that the removal would have on the mother’s and son’s medical conditions. As these important humanitarian and compassionate factors were not properly considered, Justice Gagné deemed the decision unreasonable. The application for Leave was allowed.