Brzezinski v. Canada (MCI) 2023 FC 936

In Brzezinski v. Canada (MCI),  Justice Strickland examined the Applicants’ Refugee Appeal Division (RAD) refusal.  The Applicants had claimed refugee protection on grounds of feared persecution in Poland due to their Roma identity.  The RPD had rejected their claim due the availability of state protection. At the RAD, the Applicants attempted to submit 11 new articles, as evidence, but the RAD declined to accept them as four of the articles were deemed not relevant and the remining seven did not post-date the RPD’s decision. The RAD also noted that the Applicants had not challenge the presumption of state protection. On judicial review, Justice Strickland found that it was not clear whether the RAD assessed the relevance of the four new articles in the context of the Applicants’ submissions. The Applicants had used the articles to demonstrate that that the level of democracy in Poland had declined, and as a result, lowered their burden when it came to refuting the presumption of state protection. Given the Court’s finding, and as the determinative issue was state protection, the application for leave was allowed (even while Justice Strickland recognized that the outcome might be the same).


Yao v. Canada (MCI) 2023 FC 920

In Yao v. Canada (MCI), Justice Favel explored the Applicant’s Refugee Protection Division (RPD) cessation decision. The Applicant was a citizen of China who was granted refugee protection in 2010 and obtained his permanent residence in September 2011. Shortly after, the Applicant had renewed his Chinese Passport, which he then used to travel between Canada and the USA, as well as to make three trips to China (between 2013 and 2018).  Upon his return to Canada in 2018, the Applicant was questioned by a Canada Border Services Agency (CBSA) Officer about his travel. The Applicant had acknowledged that he knew travelling to China could jeopardize his status, but that he did not go anywhere while in China. When the CBSA Officer had checked the Applicant’s phone, he found this to not be the case, and located photos of the Applicant sightseeing and attending parties. The Minister applied to the RPD to cease the Applicant’s protection on the grounds of reavailment, and the RPD allowed the cessation application.

On judicial review, Justice Favel found the determinative issue to be the RPD’s analysis of the Applicant’s intention to re-avail himself of protection from China (second stage of the reavailment test). Justice Favel found the RPD’s finding to be unreasonable, and cautioned that intent to re-avail has nothing to do with whether the motive to travel was necessary or justified (as noted in Galindo Camayo, 2022 FCA 50, at para. 72). Moreover, Justice Favel found that while the Applicant did acknowledge to CBSA that he was jeopardizing his status, the RPD should have accounted for the state of the Applicant’s knowledge and intent before concluding that the Applicant sought reavailment of China’s protection. Justice Favel also could not find any indication that the RPD had considered the Applicant’s intent when it came to obtaining a Chinese passport or travel to China. Citing from The Law of Refugee Status as useful guidance, Justice Favel highlighted that since there is no automatic connection between the issuance or renewal of a passport and the granting of protection, it is paramount that intent be taken into consideration by the determinative authority. Unless the motive is to genuinely entrust their interest in the protection of the state of their nationality, the requisite intent is absent. In the matter at hand, Justice Favel found that the RPD failed to consider the Applicant’s testimony regarding his intention of obtaining a passport in the event that it rebutted the presumption of the Applicant’s intent to re-avail himself of China’s protection. Justice Favel concluded by finding that the RPD had combined the individual analyses required at the three separate stages of the test, relying on the same facts at each stage, and failed to consider the Applicant’s intent when it came to availment of China’s protection. The application for leave was allowed.


Liverpool v. Canada (MCI) 2023 CanLII 59182 (FC)

In Liverpool v. Canada (MCI), Justice Norris assessed the Applicant’s request to Stay his removal pending the outcome of his judicial review of a negative Humanitarian and Compassionate (H&C) application. The Applicant had submitted an H&C where in one of the factors raised was the best interests (BIOC) of his five children- two with whom the Applicant lived with.  Justice Norris found that removing the Applicant prior to the determination of the H&C judicial review would cause irreparable harm. Justice Norris found that the Officer had failed to properly engage with the evidence that showed the Applicant having a close relationship with the two children and acted as their primary caregiver while the mother was at work. As this was a central issue to the application, it questioned the reasonableness of the decision.  Justice Norris added that given the underlying strength of the application, in the event that the H&C application was ordered reconsidered, there was a strong possibility that it would be materially weaker than it would be if the status quo was maintained. Moreover, this consequence could not be remedied in any way. Justice Norris concluded that the balance of convenience favored the Applicant, and the Stay was granted.


Martinez v. Canada (MPSEP) 2023 CanLII 58171

In Martinez v. Canada (MPSEP), Justice Strickland examined the Applicant’s request to Stay his removal pending the outcome of his negative deferral decision. The Applicant had originally obtained his permanent residence as a child and was granted refugee protection but lost his status when he was an adult after a series of criminal convictions, which deemed him to be a danger to the public. In 2020, while he was in prison, he was diagnosed with relapsing-remitting multiple sclerosis (MS). Part of his treatment required bloodwork and urinary analysis every three months, yearly MRIs, and yearly in-person appointments.  The Applicant requested that his removal be deferred for a period of 3-6 months so that he could attend his two upcoming appointments and have enough time to transfer his specialist care to Argentina. The deferral request was refused.

Justice Strickland agreed that a serious issue arose with the Officer’s treatment of the Applicant’s medical evidence. Justice Strickland argued that the Officer had failed to consider the unpredictable nature of the disease, it being a potentially disabling condition, and how early and active treatment could reduce future risk of disability and shorter life expectancy.  Moreover, the Officer had failed to address the fact that Argentina’s public healthcare system has long waiting times. Finally, the Officer misunderstood, or misconstrued the evidence that temporary medical care was in place for the Applicant in Argentina, when it was not. Justice Strickland was satisfied that the doctor’s evidence, coupled with the fact that the Applicant did not have medical care set-up in Argentina, demonstrated a serious risk of irreparable harm to the Applicant’s health should he be removed to Argentina prior to his scheduled appointments and arranging medical care to a MS specialist. With respect to the balance of convenience, Justice Strickland noted that the Applicant was a foreign national who was found to be inadmissible due to serious criminality and who posed a risk to the Canadian public.  In a normal course of proceedings, this would normally benefit Canada, but in this case, two serious harms had to be balanced: the harm to the Applicant’s health versus the harm to the public posed by the Applicant. Due to the risk of irreparable harm to the Applicant’s health, the imminence of his medical appointments, and that the Applicant was released from immigration detention on certain conditions, Justice Strickland concluded that the Applicant would face the greater harm. The Applicant’s Stay was granted, with removal pending whichever came first: a) the determination of the judicial review of the negative deferral decision; or b) the Respondent reopening the matter based on the Applicant’s refusal to renew an emergency travel document/acquire an Argentinian passport, or the Applicant having been charged with a new criminal offence.