Ahmad v. Canada (MCI) 2023 FC 1087
In Ahmad v. Canada (MCI), Justice Southcott examined the Applicant’s cessation decision. The Applicant was granted asylum in 2010 and permanent resident status in 2011. Since then, the Applicant was issued two Pakistani passports and travelled to said country nine times. Based on this travel, the Minister applied for cessation of his refugee protection status and the Refugee Protection Division (RPD) granted the Minister’s application, ceasing the Applicant’s status pursuant to s.108(1)(a) of IRPA. On judicial review, Justice Southcott noted that the determinative argument was the Applicant’s submission that the RPD had failed to consider his knowledge of the consequences of travelling on his Pakistani passports. Justice Southcott found that the RPD’s analysis did not properly capture the Applicant’s evidence, nor consider the evidence from the perspective required by Camayo. The Applicant had relied on his testimony from the RPD, wherein he had stated that he did not know that travelling on a Pakistani passport meant he was relying on the government of Pakistan for protection; he thought it was just a travel document. Justice Southcott found that the RPD’s decision did not consider this testimony. Furthermore, the RPD’s decision did not demonstrate a consideration of the Applicant’s subjective intention when it came to re-availment. The application for leave was granted.
Andarawes v. Canada (MCI) 2023 FC 1086
In Andarawes v. Canada (MCI), Justice Southcott reviewed the cessation decision. The Applicant was granted asylum in 2016, based on persecution by Muslim extremists in Egypt. He was granted permanent resident status in 2017. In 2018, the Applicant obtained a new Egyptian passport and travelled back to the country six times. Based on this travel, the Minister applied for cessation of his refugee protection status and the Refugee Protection Division (RPD) granted the Minister’s application, ceasing the Applicant’s status pursuant to s.108(1)(a) of IRPA. On judicial review, Justice Southcott found that the RPD’s decision was unreasonable as it failed to consider the Applicant’s evidence of the precautionary measures he took while in Egypt. The RPD argued that the Applicant’s time in Egypt was not spent in hiding; however, the decision disclosed no analysis on how the RPD arrived at this conclusion. Furthermore, the Applicant’s evidence and submissions did not assert that he was in hiding. Justice Southcott did not find that Camayo indicated that precautionary measures must amount to being in hiding in order to be relevant to the assessment of intention to re-avail and to require consideration by the RPD. The application for leave was granted.
Mohammed v. Canada (MCI) 2023 FC 1044
In Mohammed v. Canada (MCI), Justice O’Reilly assessed the Applicant’s Immigration Appeal Division (IAD) decision. The Applicant’s permanent resident status had expired in 2020, and a CBSA Officer had found the Applicant to be inadmissible for failing to comply with the residency requirements (residing in Canada for at least two out of the five years). The Applicant appealed the decision at the IAD on humanitarian and compassionate (H&C) grounds, but the appeal was dismissed. The Applicant had sought judicial review of the appeal, and succeeded, with Justice Ahmed finding the IAD’s decision to be unreasonable because it failed to consider several favorable factors, including the Applicant’s front-line work during the COVID-19 pandemic. On redetermination, the IAD dismissed the appeal a second time. On judicial review, Justice O’Reilly once again found that the IAD had failed to properly consider the factors supporting the Applicant’s request for relief under H&C grounds, including her role during the pandemic. Citing Justice Ahmed’s original decision, Justice O’Reilly stressed that the “moral debt owed to immigrants who worked on the frontlines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be overstated” and described the context of the applicant’s H&C application as “unique and important.” By contrast, the IAD treated her contribution as common and ordinary. Justice O’Reilly found that was not a reasonable application of Justice Ahmed’s decision (at para. 19). The application for leave was granted.
Fateye v. Canada (MPSEP) 2023 CanLII 67189
In Fateye v. Canada (MPSEP), Justice Little addressed the Applicant’s stay of removal request and deferral decision. The Applicant had brought forward the motion to stay her removal until the disposition of this judicial review, or alternatively until October 15, 2023, or (further alternative) until the disposition of her application for permanent residence on Humanitarian and Compassionate (H&C) grounds. At the first stage of the test (serious issue) for stay of removal, the Applicant had submitted that when it came to the deferral decision, the Officer had: a) failed to recognize new risk that arose since 2021 as a result of her medical condition, and concerns related to unavailability of affordable healthcare in Nigeria; b) erred when finding that the Applicant had reasonable notice of her pending removal, when in reality the Applicant was caught of guard by her immediate removal (after 15 years in Canada and more than 10 years since her PRRA); and c) misapprehended the hardship and harm the Applicant would experience on return to Nigeria. Justice Little found that the Applicant met the first stage of the test. At the second stage of the test (irreparable harm), Justice Little found that the Applicant had a medical condition that required ongoing attention, care, and treatment by a physician with expertise in reproductive health, as well as prescription drugs. The Applicant had already undergone two surgeries related to her condition and was expected to undergo a third one in September 2023. Justice Little found that the Applicant would face irreparable harm should she be removed in July 2023, given the cumulative effect of: a) the nature and gravity of her ongoing condition; b) lack of support system in Nigeria; c) country conditions related to poor availability and affordability of healthcare, as well as evidence related to the ill treatment of single women seeking housing, employment, and healthcare; and d)the short time the Applicant had been afforded to address issues related to her departure from Canada and make arrangements for housing and healthcare. This latter consideration acknowledged the length of time since the Applicant was in Nigeria. At the third stage (balance of convenience), Justice Little found that the potential harm to the Applicant outweighed the harm to the public interest if a temporary stay was granted. The Applicant’s removal was stayed until October 15, 2023.