Canadian Council for Refugees v. Canada (MCI) 2023 SCC 17

In Canadian Council for Refugees v. Canada (MCI) Justices Kaiser, Wagner, Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ examined the constitutionality of legislative provisions implementing the Safe Third Country Agreement (STCA). The STCA is under effect in Canadian law through IRPA, s.101(1)(e). Under this regulation, refugee claimants are ineligible for consideration if they came through a designated country under the STCA, such as the United States (US). The US itself is a listed as a designated country under s. 159.3 of the IRPR. The Appellants had challenged this scheme on the basis that it violated s.7 and s.15 of the Charter. On review, the Federal Court (FC) agreed that s.7 of the Charter was violated, and such a breach was not justified under s.1 of the Charter. In comparison, the Federal Court of Appeal (FCA) held that the Charter challenge was not properly constituted but allowed the appeal, moving the matter to the Supreme Court (SCC).  The SCC, however, disagreed with the FCA and was of a view that the regulation designating the US was an appropriate focus of the Charter challenge. Moreover, the SCC had agreed with the FC’s findings that the liberty and security of refugee claimants (and persons of interest) were engaged by Canadian legislation that rendered their claim ineligible. The determinative question raised by the SCC was whether the deprivation of liberty or security of the persons was in accordance with the principles of fundamental justice. From this viewpoint, notwithstanding the findings of the FC, the challenge to s.159.3 if the IRPR failed. The SCC found that ultimately both IRPA and IRPR contained exceptions, exemptions and reviewable obligations that addressed the persons of interest ineligibility and removal from Canada. The SCC went on to state that the current legislation is tailored in a way to prevent infringements on s.7 of the Charter, and to survive constitutional scrutiny due to legislative safety valves that provide curative relief. The SCC concluded by finding that s.159.3 of the IRPR was not ultra vires; that s.159.3 of the IRPR does not breach s.7 of the Charter; and that the s.15 Charter challenge is to be remitted back to the FC as it was not decided by either court. The appeal was allowed in part.

Hossain v. Canada (MCI) 2023 FC 789

In Hossain v. Canada (MCI) Justice Sadrehashemi reviewed the Applicant’s Refugee Appeal Division (RAD) refusal. The Applicant originally made an asylum claim in Canada based on feared persecution in Bangladesh due to his political opinion. The Applicant had claimed that he had written multiple political pieces, which had put him at risk, as well as was physically attacked. The RPD had dismissed the Applicant’s claim on credibility grounds, and the RAD had supported and agreed with the RPD’s finding. Unlike the RPD, the RAD however had accepted that the Applicant had written political pieces that had put him at risk. On judicial review, Justice Sadrehashemi found that the RAD had failed to consider the core basis of the Applicant’s claim. The RAD had focused too much on whether the Applicant was attacked or not and failed to address the broader issue of risk based on the Applicant’s political opinion. Justice Sadrehashemi also found that the RAD had failed to make a finding with respect to the Applicant’s connection to his wife, who was also active in politics and was the child of the former president of Bangladesh. This narrow outlook resulted in the RAD’s decision being unreasonable. The application for leave was allowed.

Geng v. Canada (MCI) 2023 FC 773

In Geng v. Canada (MCI) Justice Mosley assed the Applicant’s inadmissibility finding under s.34(1)(f) of IRPA. The Applicant is a retired language professor who had once been granted Canadian citizenship, but subsequently gave it up to return to work in China. The Applicant wished to return to Canada to spend his retirement with his wife and daughter, both Canadian citizens. The Applicant had no prior problems entering Canda and had done so multiple times as a holder of a long-term visitor visa. The Applicant had worked as a teacher and assistant lecturer in English at the Luoyang Foreign Languages Institute (LFLI) in China between 1975 and 1987. On judicial review, there was no dispute that the LFLI trained linguists who were employed by the 3/PLA (a department in the Chinese Army which collected intelligence). The pressing issue at hand was whether teaching English to LFLI students, including those who may have been employed by the 3/PLA, made the Applicant a member of the organization that, with reasonable grounds believed to engage, had engaged, or would engage in acts of espionage against Canada or contrary to Canadian interests. Justice Mosley agreed with the Respondent that the Officer is not barred from reconsidering the admissibility of an individual who has been previously found to be admissible. However, the Officer would need to justify the decision in view of previous findings to the contrary.  In this case, Justice Mosley found that the Officer was unclear in his reasoning, and the sources relied upon by the Officer did not fully support the conclusion reached in the decision. In Justice Mosley’s view, the National Security Screening Division (NSSD) assessment and the Officer’s reasons showed an effort was made to establish the Applicant as a 3/PLA member, and inadmissible.

The NSSD assessment further went on to state that there were reasonable grounds that the Applicant had engaged in espionage, based on what Justice Mosley interpreted as a dubious analysis of the concept of “facilitation” in the context of espionage (pulled from an oral judgment that no authority was provided for). Justice Mosley found the number of serious failings resulted in the decision not meeting the standard of reasonableness. Additionally, Justice Mosley found that a breach of procedural fairness had occurred as the Applicant had not been provided with sufficient information to understand the allegations made. The application for leave was allowed.

Lecky v. Canada (MCI) 2023 FC 769

In Lecky v. Canada (MCI) Justice Aylen evaluated the Applicant’s refused Humanitarian and Compassionate (H&C) application. On judicial review, Justice Aylen agreed with the Applicant in finding that the Officer had failed to take into consideration the determinative issue of the effect of removal on the Applicant’s mental health. The Applicant had supported his application with a report from a registered psychotherapist, which was given moderate weight by the Officer.  The report had opined that the Applicant had exhibited signs of post-traumatic stress, generalized anxiety, and major depression with regards to trauma he experienced, as well as stress and fear of being removed.  However, the Officer went on to consider the availability of mental health treatment in Jamaica, which he argued would be accessible to the Applicant. Justice Aylen found it difficult to align the Officer’s decision to give the psychotherapist’s report moderate weight but give the Applicant’s overall mental health little weight. Furthermore, Justice Aylen found it unreasonable for the Officer to use the lack of follow-up with the psychotherapist as a means to undermine the Applicant’s evidence. Justice Aylen concluded by finding that the Officer had failed to consider and weigh the impact that removal would have on the Applicant. The application for leave was allowed.

Farah v. Canada (MCI) 2023 FC 760

In Farah v. Canada (MCI) Justice Zinn examined the Applicant’s Refugee Appeal Division (RAD) refusal. The Applicant was a citizen of Somalia that had entered Canada on a fake Danish passport. The Applicant had disclosed on her Basis of Claim (BOC) the name listed in the fraudulent passport as well as date of arrival to Canada. The Minister had intervened on credibility and identity grounds, providing Custom Enforcement System evidence that indicated that no one by the Applicant’s name (both real and fraudulent) had entered Canada during the specified time. Both the Refugee Protection Division (RPD) and the RAD had dismissed the Applicant’s claim for failing to establish her identity. On judicial review, Justice Zinn noted that the Applicant had presented identity documents (which included a Somali Passport and a National ID Card), which, if were accepted, would have established the Applicant’s Somali identity.  However, the RAD did not consider these documents prima facie evidence of nationality and had placed the burden on the Applicant to establish their genuineness. At face value, Justice Zinn found that there was nothing to suggest that the documents were fraudulent or improperly obtained. The RAD had provided those documents little weight due the Applicant’s ability of obtaining them without a birth certificate. Justice Zinn found that the RAD had failed to consider the NDP evidence that birth certificates are “rarely issued” in Somalia, and failed to address the contrary evidence as to how such documents could be obtained without a birth certificate. Lastly, Justice Zinn found that it was unreasonable for the RAD to give little weight to an affiant’s affidavit, who had attested to meeting the Applicant in Somalia and knew her to be Somali. The application for leave was allowed.

Clarke v. Canada (MCI) 2023 FC 756

In Clarke v. Canada (MCI) Justice Aylen reviewed the Applicant’s refused Humanitarian and Compassionate (H&C) application. On judicial review, Justice Aylen found that the Officer’s decision was unreasonable due to the errors made when assessing hardship. The Applicant had come to Canada looking for a new start after she was raped by a teacher when she was 16 years old. The Officer had found the Applicant’s sexual assault to be “not unconscionable”, which Justice Aylen argued was not only insensitive, but inexcusable. Furthermore, the Officer’s finding that the Applicant’s hardship was lessened because she was a caring person with training in the medical field was also unreasonable. Justice Aylen noted that the Applicant’s medical training and experience was limited, dated, and entirely unrelated to her own mental health matters. To imply that such training would reduce the Applicant’s hardship should she be removed from Canda, was both illogical and speculative. In addition, the Officer had ignored and minimized the hardship the Applicant faced, by generalizing the hardship as one that was similar to hardship that other people suffered. The application for leave was allowed.

Agbatutu v. Canada (MPSEP) 2023 CanLII 45989

In Agbatutu v. Canada (MPSEP) Justice Norris reviewed the Applicant’s refused deferral request. The Applicant was now seeking a stay of removal pending the outcome of this judicial review. Justice Norris noted that in the Officer’s deferral decision, the Officer had indicated that they were “positive” that the Applicant’s younger child would be able to receive the necessary care should the Applicant be removed. Justice Norris disagreed and found that there were serious issues with the reasonableness of this finding, given that there was no effective childcare plan in place and the health issues of the child’s mother. The Applicant had argued that the principal risk faced by his child was because of the Applicant’s inability to share in the caregiver duties. Justice Norris accepted that any harm suffered by the child would also adversely affect the Applicant’s interests, and that the lack of an effective childcare plan created a risk to the child which was sufficient to meet the test for irreparable harm. Justice Norris concluded by saying that the matter went beyond family separation. While the Applicant did not appear to have taken his obligations under Canadian Immigration law, Justice Norris was satisfied that the balance of convenience favoured the Applicant. The stay of removal was granted.