Obazughanmwen v. Canada (MPSEP) 2023 FCA 151
In Obazughanmwen v. Canada (MPSEP), Justices Gleason, Pelletier, and de Montigny, examined the Appellant’s Federal Court referrals, which the Appellant argued should be set aside and returned for reconsideration for more in depth consideration of the Humanitarian and Compassionate (H&C) and Best Interest of the Child (BIOC) factors. The Appellant was a permanent resident of Canada who was referred for an inadmissibility hearing to the Immigration Division (ID) pursuant to serious and organized criminality (ss.36(1)(a) and ss.37(1)(a) of IRPA). Challenging both referrals, the Appellant’s main contention was the inadmissibility finding for organized criminality, which now carried a much more sever consequence since the enactment of the Faster Removal of Foreign Criminals Act, S.C. 2013, c.16. Under the new enactment, a person who was found inadmissible under s.37 of IRPA, was precluded from filing an H&C application. The Appellant argued that the pre-2013 jurisprudence (wherein CBSA and the Minister’s Delegate had limited discretion and not required to consider H&C factors), could not be applied blindly after 2013. The Appellant asserted that the Court should have taken into consideration that the Appellant would never have an opportunity to raise H&C and BIOC considerations if they were not examined at the referral stage. The Appellant also argued that his ss.7 and 12 Charter rights were infringed. The Federal Court found that the pre-2013 jurisprudence applied with equal force after 2013 and did not consider the Appellant’s constitutional arguments. The Federal Court also agreed to certify a question of general importance, but the Federal Court of Appeal dismissed the Appellant’s appeal due to the question being improperly certified. The Federal Court of Appeal concluded by finding that the Minister’s delegate was reasonable and consistent with past jurisprudence.
Adebiyi v. Canada (MCI) 2023 FC 901
In Adebiyi v. Canada (MCI), Justice Go reviewed the Applicants’ Refugee Appeal Division (RAD) decision. The Principal Applicant (PA) and her minor son were citizens of Nigeria, who claimed asylum in Canada due to the PA’s spouse wanting to perform ritual scarification on the child. The Refugee Protection Division (RPD) had rejected the Applicants’ claim due to the existence of a viable internal flight alternative (IFA) in Abuja, Nigeria -a finding which was also upheld by the RAD. On judicial review, Justice Go found that the RAD breached procedural fairness by making a material finding based on a transcript of an incomplete RPD hearing recording and failed to review the recording in advance. There were several technical difficulties that impacted the parties’ abilities to hear one another during the RPD hearing, which were not reflected in the transcript. Moreover, the transcript did not include all of counsel’s submissions regarding the viability of the IFA considering the PA’s psychological conditions. Justice Go emphasized the importance of having a full and complete evidentiary record on hand in order for the Court to properly judicially review the matter. In this case, Justice Go found that the RPD prepared an incomplete and inaccurate transcript which the RAD then relied on resulting in inaccurate factual findings and breach in procedural fairness. The application for leave was allowed.
Engdawork v. Canada (MCI) 2023 FC 884
In Engdawork v. Canada (MCI), Justice Sadrehashemi assessed the Applicant’s permanent resident visa refusal. The Applicant had applied for permanent residence under the Convention Refugee Abroad or Humanitarian Protected Person Class, after fleeing Ethiopia 10 years ago due to persecution for her political ideas. She had been living with insecure temporary resident status in Israel since then. The Officer had refused the Applicant’s application based on her membership with the United for Democracy Justice (UDJ) political party, in which she had been a member for approximately nine years before being targeted by authorities. On judicial review, Justice Sadrehashemi found that the Officer’s determination of the length of membership was flawed as it failed to consider whether the dates in the document reflected the Ethiopian calendar or the Georgian one. Additionally, the Officer misunderstood the Applicant’s claim; her persecution by the authorities was set of by her active recruitment of others to join the UDJ, not her membership in the party itself. Furthermore, Justice Sadrehashemi found the Officer’s implausibility findings to be unreasonable as they were based on assumptions and there was no evidence to support them. The application for leave was allowed.
Tendai v. Canada (MCI) 2023 FC 880
In Tendai v. Canada (MCI), Justice Elliot explored the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of Zimbabwe who had feared persecution based on her bisexuality. The Applicant had her photos and videos leaked on social media and published in a newspaper. This led her to undergo a forced exorcism, put on trial in her community, be found guilty of homosexuality, and sentenced to death. While attempting to escape, the Applicant was also caught by government officials, confined, and sexually assaulted. The Applicant managed to escape to the USA and travel to Canada, where she made her claim for asylum. In support of her claim, the Applicant had put forward two newspaper articles to corroborate the public exposure of her bisexualism in Zimbabwe. Ultimately, the Applicant’s claim was rejected and the RAD dismissed the appeal. On judicial review, Justice Elliot found the determinative issue to be the RAD’s treatment of the Applicant’s evidence. The RAD’s dismissal of the Applicant’s online article, because its content was susceptible to alteration, without first probing the evidence, was unreasonable. Furthermore, The RAD failed to cite the sources used to make a finding of the prevalence of altered or manufactured content in Zimbabwe, resulting in the Applicant being deprived of understanding the basis of the conclusion drawn. The application for leave was allowed.