Abbas v. Canada (MCI) 2023 FC 871

In Abbas v. Canada (MCI) Justice Walker assessed the Applicant’s Refugee Protection Division (RPD) cessation decision. The Applicant was a journalist from Pakistan who had penned critical pieces of President Musharraf’s regime. He fled Pakistan in 2002 and became a permanent resident of Canada in 2009. After President Musharraf resigned in 2008, the Applicant had obtained his Pakistani passport, and renewed it on several occasions between 2009 and 2017. Moreover, the Applicant had returned to Pakistan multiple times between 2009 and 2021, primarily to continue his work as a journalist. In 2018 the Minister had applied to cease the Applicant’s refugee protection status, and the RPD had granted the application on the grounds that: 1) the Applicant had voluntarily reavailed himself of the protection, pursuant to s. 108(1)(a) of IRPA, and, 2) the reasons for which he had sought refugee protection in Canada had ceased as per s.108(1)(e) of IRPA. On judicial review, Justice Walker found that the RPD erred in failing to explain its decision to consider s. 108(1)(a) of IRPA given the fact that the Applicant had taken no action to obtain a Pakistani passport prior to President Musharraf’s resignation and the reasons for which he sought protection in Canada had ceased. Furthermore, the RPD had failed to justify its discretionary decision to impose a series of consequences on the Applicant as an additional ground of cessation. Lastly, the RPD had unreasonably combined voluntariness and intention as one in its analysis of the Applicant’s intention to reavail himself of the protection. The application for leave was allowed, to be reconsidered only with respect to s. 108(1)(a) of IRPA of the Minister’s application for cessation.

Samideh v. Canada (MCI) 2023 FC 854

In Samideh v. Canada (MCI), Justice Elliot reviewed the Applicant’s writ of mandamus request regarding his pending application for permanent residence under the Family Class, which had been submitted in 2018. On judicial review, Justice Elliot referred to Conille, 1998 CanLII 9097 (T.D.) when outlining the three requirements that must be met for a delay on an application to be considered unreasonable. Those requirements were: a) the delay in question was longer than the standard processing times, prima facie; b) the Applicant, nor their counsel, were responsible for the delay; and c) the authority responsible for the delay lacked in satisfactory justification. When it came to the case at hand, Justice Elliot found that the first two requirements were met, with the determinative issue remining of whether the Respondent had provided satisfactory justification for the delay. The Respondent had argued that the cause of the delay was due to background and security checks, which were a necessary and an important requirement under IRPA. Justice Elliot conceded that while this was potentially a satisfactory explanation for the long processing delay, it was not the case at hand. There was no evidence presented that had suggested the Applicant was suspected of involvement in war crimes or criminality, nor was it argued that the delay was due to volume of documents, complexity, or the Applicant’s own conduct. Justice Elliot held that the Respondent did not provide any details as to what the security concerns were or issues that justified the delay, and it was inadequate to rely on a general statement that security clearance was still pending. Justice Elliot found the delay to be unreasonable and ordered IRCC to make a decision on the application within 90 day of May 9, 2023. The Applicant was also awarded $2500 in costs.

Monga v. Canada (MCI) 2023 FC 848

In Monga v. Canada (MCI), Justice Southcott examined the Officer’s decision to refuse the Applicants’ Humanitarian and Compassionate (H&C) application. The Applicants were a family of four from India, who had originally made an asylum claim in Canada that was refused due to the existence of a viable IFA in Kolkata. The Applicants had subsequently submitted an H&C application, which was also refused.  On judicial review, Justice Southcott identified the best interest of the child (BIOC) as the determinative issue at hand. In particular, the minor child’s inability to speak Bengali, a principal language in Kolkata, was a key issue. Justice Southcott held that the inability to speak the langue of the country of return is a compelling factor when it came to the BIOC analysis, as it would impact the child’s ability to integrate and cope with learning a new language, education system, and culture. The Officer’s argument that language classes would mitigate the impact of the above, was not realistic and unintelligible. Furthermore, the Officer made a reviewable error by overlooking evidence that suggested that the children’s language barrier would cause significant social isolation, resulting in the erroneous finding that insufficient evidence was provided by the Applicants. The application for leave was allowed.

Hirsi v. Canada (MPSEP) 2023 FC 785

In Hirsi v. Canada (MPSEP), Justice Little explored the Refugee Protection Division’s (RPD) decision to vacate the Applicant’s convention refugee status on the basis of material misrepresentation and failure to disclose his true identity upon entering Canada. The RPD had concluded that the Applicant was a different man based on a comparison of photographs, as well as observations of the Applicant’s facial features at the RPD hearing. The Federal Court had previously stated that the RPD is allowed to make their own naked-eye assessment when it came to comparing photos, but it was often a highly subjective and impressionistic exercise and should be approached with caution as there were risks of unconscious or implicit racial bias when the individual is of a different ethno-racial background. In this case, Justice Little was persuaded that the RPD’s assessment was flawed as the RPD did not seek to reconcile a number of alleged differences between the photographs identified by the Applicant and one point of alleged similarity by the Respondent. Furthermore, the RPD had failed to instruct itself on the inherent risks of such a subjective and impressionable exercise. The application for leave was allowed.

Chaudhry v. Canada (MCI) 2023 FC 785

In Chaudhry v. Canada (MCI), Justice Pentney examined the Refugee Appeal Division’s (RAD) decision to refuse the Applicant’s asylum appeal. The Applicant’s claim was based on fear of religious extremists in Pakistan. While the claim was deemed credible by both the RAD and the RPD, it was ultimately refused due to the existence of an internal flight alternative (IFA). On judicial review, Justice Pentney found that not only was the Applicant denied procedural fairness because of the RAD failing to consider his request for new evidence, but that the RAD’s key findings on IFA were unreasonable. Justice Pentney held that the RAD’s failure to admit new evidence denied the applicant procedural fairness. The Applicant had correctly submitted this application and within the necessary timelines. There was no explanation provided to the Applicant as to why the RAD did not consider new evidence, but further review of the file indicated that it may have been missed. When it came to the issue of the IFA, Justice Pentney found that the decision was unreasonable on two associated grounds. First, the RAD was required to determine the nature of risk the Applicant faced, however failed to address the Applicant’s profile that his advocacy had created or the potential impact of it. Second, Justice Pentney found significant inconsistency when it came to the IFA between the RAD’s original decision and the decision to refuse the request to re-open the hearing. The application for leave was allowed.

Nathaniel v. Canada (MCI) 2023 FC 799

In Nathaniel v. Canada (MCI), Justice Sadrehashemi assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) refusal. The Applicant claimed risk in Nigeria after having received threats from the Eiye confraternity cult. The Officer had refused the Applicant’s PRRA on the grounds that the Applicant would be able to access state protection in Nigeria. On judicial review, Justice Sadrehashemi found that the Officer’s assessment of the evidence on state protection was limited and unbalanced. It was not sufficient for the Officer to make a finding that some police action in an individual instance equated to adequate state protection at an operational level for all. Furthermore, the Officer had failed to address the evidence that went against this finding, and ultimately failed to grapple with the key issue of whether state protection would be available at an operational level to those who had complained of threats by the Eiye confraternity.  The application for leave was allowed.