Abkarovicova v. Canada (MPSEP) 2023 FC 1546

In Abkarovicova v. Canada (MPSEP), Justice Southcott examined the Applicants’ vacation decision. The principal applicant (PA) and her children were citizens of Slovakia. At the time of the original refugee determination, all three children were minors. The Applicants were all granted refugee convention status in 2017. In the initial refugee intake with IRCC, the PA had indicated that she had never been convicted, charged, on trial, or subject to any criminal proceedings. She had also indicated that she had never been detained, incarcerated, or put in jail. During the eligibility interview, when asked if she had ever been charged or convicted of any criminal offence, she replied in the negative. In 2020, the Minister had applied to vacate their status after alleging that the PA hid a 17-year criminal history in Slovakia. The Minister argued that should the PA’s criminal history been revealed she would have been excluded from refugee protection on the basis of s. 98 of IRPA and Article 1F(b) of the Convention. The Refugee Protection Division (RPD) vacated the Applicants’ status.

On judicial review, there were two issues raised. First, Justice Southcott assessed whether the RPD had erred by vacating the children’s status and excluding them from protection under Article 1F(b). The Respondent conceded that this was an error and Justice Southcott agreed. The decision failed to set out how the children could be excluded as a result of their mother’s criminality. Second, Justice Southcott considered whether the RPD erred by finding that the PA committed serious non-political crimes. The PA had argued that the RPD did not conduct an analysis as to whether the penalties imposed upon her in Slovakia as a result of her criminal offences served to rebut the presumption of seriousness in relation to the offences, which Justice Southcott agreed with. The application for leave was allowed.


Monzon Gordillo v. Canada (MCI) 2023 FC 1529

In Monzon Gordillo v. Canada (MCI), Justice Aylen reviewed the Applicants’ Refugee Appeal Division (RAD) decision. The Principal Applicant (PA) and her adult son were citizens of Mexico, who claimed asylum in Canada on the grounds of fear or persecution, threats of extortion, and death threats made against them by the Organización Campesina Emiliano Zapata (OCEZ). Both the Refugee Protection Division (RPD) and the RAD found that the Applicants had multiple internal flight alternatives (IFA) available to them. On judicial review, the only issue before Justice Aylen was the reasonableness of the RAD’s decision on the first prong of the IFA Test. The Applicants had asserted before the RAD that the OCEZ could use corrupt police and/or technology, data breaches, and social media to locate them. When making their determination, Justice Aylen found that the RAD relied on an outdated NDP document, asserting the document remained unchanged when in fact it had been amended. The amendments included the removal of language that stated that data breaches or unauthorized access by third parties was scarce and included two new data breaches. Justice Aylen found that the RAD was obligated to consider them most up to date NDP information at the time of rendering their decision. Given the changes to the NDP document, and the RAD’s rejection of the Applicants’ rationale, Justice Aylen found that the update could have affected the decision. The application for leave was allowed.


Deng v. Canada (MCI) 2023 FC 1525

In Deng v. Canada (MCI), Justice Pentney explored the Applicant’s Humanitarian and Compassionate (H&C) application decision. The Applicant was a citizen of Jamaica who came to Canada originally in 2007, travelling back and forth between the two countries since then. Her husband lived in Jamaica, and they had three Canadian born children together. As their twins were born prematurely, one twin required ongoing medical care. The Applicant had submitted an H&C application which was refused. On judicial review, the determinative issue was whether the Officer’s analysis of the best interests of the child (BIOC) factors was reasonable.  In Justice Pentney’s view, the Officer’s failure to mention evidence regarding medical care, or to grapple with the evidence that one of the twins needed ongoing care, rendered the decision unreasonable for three reasons. First, the Officer’s statement that “submissions were not provided to indicate that the children are currently receiving ongoing treatment” was incorrect and failed to show that the Officer was alive, alert, and sensitive to the children’s interests. Second, it was not possible to understand how the findings regarding ongoing treatment influenced the Officer’s overall BIOC assessment. Third, the BIOC factor was the primary consideration in this case, with the twin’s needs at the core of the matter. Justice Aylen was persuaded that the Officer’s unreasonable finding regarding the twin’s ongoing medical needs was sufficiently serious and central to render the decision unreasonable. The Application for leave was allowed.


Saez v. Canada (MPSEP) 2023 CanLII 106207

In Saez v. Canada (MPSEP), Justice Sadrehashemi assessed the Applicant’s two applications for leave: the first regarding a writ of mandamus for the further processing  of his Ministerial Relief (MR) application under s.42.1(1) of IRPA, and the second challenging the denial of the deferral request. The Applicant was scheduled to be removed to Venezuela. The Applicant brought forward a motion asking that his removal be stayed until a determination is made on either of the above applications.

The Applicant originally arrived in Canada with his family in 2015 and made a refugee claim. While his family’s claim was granted, the Applicant’s was refused on the basis of his police work with the National Directorate of Intelligence and Prevention services (s.34(1)(f) of IRPA). In 2018, the Applicant applied for Ministerial Relief from inadmissibility under s. 42(1) of IRPA, which had not begun processing to date. Due to his inadmissibility, the Applicant was also not able to benefit from the Administrative Deferral of Removal (ADR) in place for Venezuela.

Justice Sadrehashemi was satisfied that the Applicant had established a serious issue with the Ministerial Relief application. There have been a number of cases wherein the Federal Court agreed that a five-year processing delay was unreasonable. Justice Sadrehashemi was also satisfied that the Applicant had established irreparable harm. In this case, a positive decision on the Ministerial Relief application could potentially halt the removal based on the ADR in place for Venezuela. It was Justice Sadrehashemi’ s understanding of s.230(1) of IRPR that the Minister may impose an ADR “if the circumstances in that country or place pose a generalized risk to the entire civilian population as a result of a) an armed conflict within the country or place; b) an environmental disaster resulting in a substantial temporary disruption of living conditions; or c) any situation that is temporary and generalized.” The Applicant had also provided country condition evidence regarding the socio-economic crisis in Venezuela, difficulty of livelihood, as well as the challenges in communicating internationally by phone and internet. Justice Sadrehashemi found this combination of factors resulted in irreparable harm.

Lastly, even though the Applicant was found inadmissible on security grounds, and there was a strong obligation to remove such individuals from Canada, Justice Sadrehashemi found that there had been no criminality or safety concerns related to the Applicant’s presence in Canada over the past eight years. Given the strength of the issues relating to the mandamus application, and the combination of factors amounting to irreparable harm, the balance of convenience favored staying the Applicant’s removal until the underlying application for leave relating to the Ministerial Relief application was determined.