Canada (MPSEP) v. Ewen 2023 FCA 225

In Canada (MPSEP) v. Ewen, Justices de Montigny C.J., Goyette, and Heckman JJ.A. examined the Respondent’s rejected request for a deferral of removal. The Respondent had filed an application for leave of the negative decision, as well as a stay motion. At the stay hearing, the presiding Justice noticed that the Minister had referred to the Respondent in the written submissions using both he/him pronouns as well as they/them pronouns and had questioned the Respondent (who used he/him pronouns) of how he felt about it. The Justice proceeded to ask the parties to file written submissions, addressing three questions: 1) Is gender identification a protected right under the Charter (s.15)?; 2) If so, had the Respondent’s gender rights been violated by the Minister’s written submissions?; and 3) If his right to gender identification had been violated, what was the appropriate remedy, if any, under s.24 of the Charter? The presiding motion Justice did not make a final decision on the stay, but did grant an interim stay of removal, to receive the requested written submissions.

The first issue on the appeal was whether the Federal Court of Appeal (FCA) had any jurisdiction to hear this appeal of an interlocutory order of the Federal Court. The Court found that the present case met the exception that “where the alleged error has been made in the context of a ‘separate, divisible judicial act’, and involves the exercise of a power that is not found in the IRPA, appellate review is not governed by that Act” (par. 17). It was determined that the FCA had the jurisdiction. However, the Court also found that the FCA had exceeded their jurisdiction by single-handedly raising a new Charter issue that did not stem from any issues raised by the other parties and was irrelevant to the underlying stay motion.

The Court argued that “an urgent motion for a stay is obviously not the appropriate procedure to assess a new Charter claim, especially when the issue has not been raised by the parties in the underlying application for judicial review. These motions, by their very nature, are dealt with expeditiously and on the basis of a stripped-down record, and many of the procedural rights required for a Charter issue to be properly litigated and adjudicated are lacking. Further submissions, as ordered by the Motion Judge, will not cure these shortcomings. Moreover, a decision of the Federal Court on the Charter issue could be immune from appellate review as a result of section 72 of IRPA and the requirement of there being a certified question. Finally, I would add that subsection 18.2 of the Federal Courts Act does not authorize the granting of interim declarations in the context of an interim stay for relief, because declarations are final” (par. 28). The Court granted the appeal and the Federal Court’s interlocutory order was set aside. The Court did not refer the stay back to the Federal Court.


Christhothiram v. Canada (MPSEP) 2023 FC 1507

In Christhothiram v. Canada (MPSEP), Justice Southcott reviewed two related decisions: 1) the Immigration Division’s (ID) decision that the Applicant was inadmissible under s. 34(1)(c) of IRPA; and 2) the Applicant’s Refugee Protection Division’s (RPD) decision that the Applicant was ineligible to have his claim determined. The Applicant was a Sri Lankan citizen who had made small financial donations to the Liberation Tigers of Tamil Eelam (LTTE). The ID had based their inadmissibility decision on this fact, finding it to be a reasonable ground to believe that the Applicant engaged in terrorism. On judicial review, Justice Southcott noted that it was the general understanding “that a person only engages in terrorism, within the meaning of section 34 of the IRPA, if the person has the specific intent to cause death or serious injury by the use of violence” (at para. 17). In this case, the ID had failed to show how the Applicant, by making small financial donations, intended to cause death or serious injury.  Justice Southcott found the ID’s decision to be unreasonable, granting the appeal and sending it back for redetermination. It followed that Justice Southcott also granted the appeal of the RPD decision, as the ineligibility finding was based on the inadmissibility finding.


Wang v. Canada (MCI) 2023 FC 1487

In Wang v. Canada (MCI), Justice Little assessed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant had originally come to Canada on a student visa. He shortly after dropped out of university and began to practice Falun Gong. Both the Refugee Protection Division (RPD) and the RAD refused the Applicant’s claim on credibility concerns. On judicial review, Justice Little noted that the first issue was whether the RAD erred in their misrepresentation assessment concerning the Applicant’s home address in his application for university. Justice Little found that the RAD’s negative credibility finding was dependent on the fact that the Applicant was aware of the misrepresentation from the beginning. However, Justice Little found that it was not clear when the Applicant learnt of the misrepresentation or became aware of the fact. The RAD’s reasoning suggested an unreasonable use of the previous misrepresentations, which the RAD acknowledged were not directly material to the claim. The second issue at hand was the RAD’s assessment of the Applicant’s delay in making the claim. Justice Little found that the RAD had misinterpreted the Applicant’s testimony on the issue. The application for leave was granted.


Thiyageswaran v. Canada (MCI) 2023 FC 1476

In Thiyageswaran v. Canada (MCI), Justice Go examined the Applicant’s Pre-Removal Risk Assessment Application (PRRA). The Applicant was a citizen of Sri Lanka, who made a claim based on risk of persecution by the Sri Lankan authorities due to his perceived association with the Liberation Tigers of Tamil Eelam (LTTE). The Applicant’s refugee claim was rejected, and the Refugee Appeal Division (RAD) dismissed his appeal. The Applicant’s PRRA application was subsequently rejected. On judicial review, Justice Go found the PRRA decision unreasonable for three different, but related, reasons. First, the Officer had erred by finding that the Applicant’s PRRA was based on the same risks already reviewed by the Refugee Protection Division (RPD). Second, the Officer erred by unreasonably finding the country condition evidence to be generalized and not personal to the Applicant. Third, the Officer had unreasonably handled the Applicant’s personal evidence (letters from family, and messages from the police), rejecting the letters solely because the authors had an interest in the well-being of the Applicant. Moreover, this error was compounded by the RAD’s determination that the police messages did not address why the Applicant had to report for question. Justice Go noted that the missing explanation was in fact found in the letter from the Applicant’s wife. There was no evidence to support the view that messages from Sri Lankan police included such details. The application for leave was granted.


Kajenthiran v. Canada (MCI) 2023 FC 1474

In Kajenthiran v. Canada (MCI), Justice Southcott assessed the Applicant’s Refugee Appeal Division (RAD) decision. Justice Southcott found the determinative issue to be the RAD’s treatment of the Applicant’s residual risk profile. The Applicant had referred to the RAD three recent positive RAD decisions that found that a residual profile was sufficient to allow the refugee claim. The Applicant’s submissions to the RAD had committed a lot of detail to the above three precedents and had explained that he shared the same residual profile as the claimants in those positive decisions. On judicial review, Justice Southcott found that two of the three precedents were materially the same as the present case. Moreover, the RAD had failed to provide their analysis in how it arrived at a different conclusion with respect those two precedents. The precedents were central to the Applicant’s appeal. Justice Southcott found that the RAD erred by failing to distinguish the precedents, either explicitly or intelligibly, resulting in failing to meaningfully consider the central issues and concerns raised by the Applicant. The application for leave was granted.