Munir v. Canada (MCI) 2024 FC 153
In Munir v. Canada (MCI) Justice Tsimberis assessed the Applicant’s Refugee Appeal Division (RAD) decision. The RAD determined that the Applicant failed to a) establish his bisexuality; b) that he was ever in a same-sex relationship; c) that he was threatened in Pakistan as a result of his sexual orientation; and d) that he was perceived as bisexual in Pakistan. On judicial review, the determinative issue was credibility. Justice Tsimberis noted that in the RAD’s conclusion, at the section titled” “Inconsistencies in testimony about same sex relationships in Pakistan” the RAD had relied on the unreasonable inference that “homosexual”, “same-sex relationship”, or “being engaged in same-sex relationships” were terms synonymous with “men who have sex with men” (MSM). Justice Tsimberis found that the decision lacked consideration of different cultural frameworks when it came to terminology, as set out in s.2.6 of the SOGIESC Guidelines. Justice Tsimberis stated that ““[f]rom the documentary evidence available, in Pakistan, someone who is homosexual or has same-sex relations is different from MSM. The RAD was not sensitive to the reality that the Applicant, who is new to Canada, may not be aware that homosexuality is viewed differently here in Canada, and that a person here may well put all the persons mentioned above in the same category. The decision does not reflect that the RAD applied Guideline 9 or considered the relevant information regarding the country conditions in Pakistan that was available to them at the time of its Decision” (at para. 26). The application for leave was allowed.
Reyes Chacon v. Canada (MCI) 2024 FC 140
In Reyes Chacon v. Canada (MCI) Justice Gleeson examined the Applicants’ abandoned claim finding. The Applicants’ claims were deemed to be abandoned in 2021 after they had failed to show up for their hearings. The Applicants had applied to re-open their claims, arguing that they had not received their Notices to Appear. They noted that at the time of filing the Basis of Claim (BOC) forms, they had been advised by an individual at the Immigration and Refugee Board (IRB) that they could change their contact information by submitting a Notification of Client Contact Information Form to either the IRB or Canada Border Services Agency (CBSA). The Principal Applicant (PA) conceded that he may have misunderstood the instructions as a result of his limited English. The Applicants had submitted their change of address updates to the CBSA by fax, but not to the IRB. The RPD found that the fax receipt for the second address change was dated January 31, 2013. The Applicants had argued that this was an obvious error as the forms were faxed on March 8, 2021, and that they were in Colombia in 2013. The RPD however found that, without their previous travel history, it was not possible to conclude that the Applicants were in Colombia in 2013. Moreover, the RPD argued that the fax could have been faxed in 2013, finding it unreasonable that the fax confirmation would bear the wrong date. The RPD ultimately found that the Applicants failed to provide a reasonable explanation for why they did not update their addresses with the RPD, concluding that there was no breach of natural justice.
On judicial review, Justice Gleeson noted that the RPD’s analysis focused on the inability of the evidence to rule out the possibility that the Applicants could have been in Canada in 2013 and ignored the evidence that a) the PA understood that he had been verbally instructed that notification to the CBSA and any address change would suffice; and b) timely notices were provided to CBSA by fax after the first change of address. While the RPD may have preferred better or different evidence relating to the Applicants’ entry into Canada, the RPD was required to engage with the evidence before it, reasonably assessing it. The reasonableness of the RPD’s decision was undermined by its failure to grapple with the totality of the record and deciding that no weight was to be given to the evidence of notice to the CBSA of the second address change. The RPD’s analysis was also undermined by the conclusion that it was unreasonable that the fax confirmation would bear the wrong date. The RPD’s unreasonable consideration tainted the remainder of its analysis, including the finding that the abandonment decision was not a failure of natural justice. The application for leave was granted.
Mouassa Tsaty v. Canada (MCI) 2024 FC 138
In Mouassa Tsaty v. Canada (MCI) Justice Régimbald reviewed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of the Republic of Congo who claimed asylum based on fear of persecution by the authorities for failing to join the Congolese Labor Party (PCT). The RAD had found the Applicant to be credible but rejected the appeal on the basis of prospective risk. On judicial review, Justice Régimbald found the RAD’s decision unreasonable. Firstly, the RAD argued that the Applicant’s behaviour was not in line with that of a person who feared persecution since he did not claim protection sooner. However, the RAD only mentioned the Applicant’s travels without analyzing the evidence before it to determine when the Applicant first realized he faced a reasonable possibility of persecution. The Applicant’s evidence indicated that his fear peaked in 2017, when his employer warned him one last time that he had to join the PCT. The Applicant then left the Republic of Congo in 2018, making his way to Canada via the United States. The RAD failed to consider this evidence and explain why it found the Applicant’s behavior inconsistent with that of a person fearing persecution. Secondly, the RAD failed to clarify why it rejected evidence which was, in Justice Régimbald’s opinion, relevant to the prospective risk assessment. Although not determinative, prior events are important to consider when assessing prospective risk. Justice Régimbald found that the Applicant had provided evidence to support his position that he was persecuted because of his political opinion, and that he feared for his and his family’s safety should he return to the Republic of Congo. The RAD found this credible but failed to comment on prior events. Instead, the RAD stated that the Applicant did not suffer “concrete problems” from his employer, the PCT, or the authorities. This conclusion was unreasonable, failing to explain whey the evidence was insufficient. The RAD’s failure to discuss certain pieces of evidence that contradicted its conclusion meant that the decision was not justified on the fact and on the evidence in the record. The application for leave was allowed.
Saeed v. Canada (MCI) 2024 FC 129
In Saeed v. Canada (MCI) Justice Kane assed the Applicants’ Convention Refugee Abroad Class decision. The Applicants were Chaldean Christians from Iraq. The wife, who was an x-ray therapist, was threatened by a family of a patient who had died at her hospital. The Applicants had alleged that the wife was targeted in part due to her religious belief and due to her being a medical professional. The Applicants fled to Jordan where they made a claim though the Private Refugee Sponsorship Program. At the interview, the visa Officer found that the Applicants were not members of the Convention Refugee Abroad Class, or the Country of Asylum Class. On judicial review, Justice Kane found that the Officer had erred by concluding the Applicants were not members of the Country of Asylum Class without assessing whether they met the criteria and explaining why they did not. Even if the same reasons that led the Officer to determine that the Applicants were not members of the Convention Refugee Abroad Class also led the Officer to find the Applicants ineligible under the Country of Asylum Class, the reasons lacked rationality and justification. The two streams are distinct, with the Officer being required to assess both. Due to the Officer’s failure to assess the Country of Asylum stream, Justice Kane found it unnecessary to address the Applicant’s argument that the Officer’s determination that they were not members of the Convention Refugees Abroad Class was unreasonable. However, Justice Kane noted that the issues raised highlighted the challenges to overseas Applicants seeking asylum sponsorship when it comes to providing a well-supported application, and to the migration officers tasked with making the important determination regarding refugee status (usually conducted by the RPD in Canada, and with a much more complete record, submissions, and relevant caselaw). Justice Kane stated that the Court should not review a Migration Officer’s decision on different principles than those that apply to the RPD. It would be preferable if the Officers “alerted applicants to the grounds for refugee protection, humanitarian-protected persons, and members of the country of asylum class, and to explain to the applicant that it is their onus to establish such grounds” (at para. 57). The application for leave was allowed.
Darwisheh v. Canada (MCI) 2024 FC 98
In Darwisheh v. Canada (MCI) Justice Grammond examined the Applicant’s admissibility decision. The Applicant was a citizen of Syria, residing in Lebanon. Due to fear of political persecution, the Applicant had been living outside of Syria for over 40 years. He applied for permanent residence under the Convention Refugee Abroad Class. At the time of the interview, with the aid of an interpreter, the Applicant disclosed that he was a member of the Muslim Brotherhood. Another Officer, after reviewing the Applicant’s file, determined that the Applicant was inadmissible under ss.34(1)(b) and (f) of IRPA, and sent the Applicant a Procedural Fairness Letter (PFL). In response to the PFL, the Applicant did not challenge the fact that the Muslim Brotherhood is an organization that engaged in subversion of a government by force. However, the Applicant argued that he was never a member of the Muslim Brotherhood and never admitted to being a member at the interview. The Applicant believed there was a translation error or misunderstanding, adding that at the interview he had mentioned that the Syrian authorities had falsely accused him of being a member of the Muslim Brotherhood. After reviewing the Applicant’s response and supporting documents, the Officer still found the Applicant to be inadmissible to Canada.
On judicial review, Justice Grammond found that a breach of procedural fairness occurred as a result of the Officer’s failure to disclose the interview notes. Justice Grammond stated that “where a visa application is based on the Convention refugees abroad class, the decision is bound to have a greater impact on the applicants’ lives as compared to other categories of visa applications. This factor calls for a heightened level of procedural fairness” (at para. 15). In the case at hand, the Applicant’s alleged admission was a decisive factor with it came to the Officer’s reasoning, and the answer was within the interview notes. Justice Grammond found that the actual wording of the Applicant was significant in this case. If the Applicant did not make such a claim, it would be difficult to argue to the contrary if he did not have access to the interview notes. Moreover, in the GCMS notes relating to the final decision, the Officer had quoted the questions as well as the Applicant’s answers verbatim. If the Officer saw the need to do so, it was safe to assume that the precise wording of the notes was crucial to the decision. The decision was set aside, but only with respect to the Muslim Brotherhood membership issue. The matter was to be reconsidered by a different Officer, with the Applicant given an opportunity to provide additional submissions.
Levi v. Canada (MCI) 2024 FC 64
In Levi v. Canada (MCI) Justice Pentney reviewed the Applicant’s cessation decision. The Applicant was a citizen of Israel who, despite objections, married an Arab national of Islamic faith. As a result, the Applicant faced persecution from her sons (from a former marriage) and from Anti-Muslim fanatics in Israel. The Applicant and her husband came to Canada in 2006, was granted refugee status, and became a permanent resident in 2008. The Applicant afterwards divorced her second husband. Since becoming a permanent resident, the Applicant had returned to Israel on three occasions to care for her mother, as well as renewed her Israel passport. In 2019, the Minister made an application to cease the Applicant’s status on the basis of reavailment, and the Refugee Protection Division (RPD) granted the application. On judicial review, the sole issue was whether the RPD reasonably assessed the Applicant’s subjective intention. Justice Pentney found that the RPD’s analysis did not adequately explain how it considered several of the factors set out I Galindo Camayo, 2022 FCA 50. The RPD had used the Applicant’s application and use of her Israeli passport as the key factors indicating her subjective intention. While Justice Pentney did find this relevant, there were other factors that needed to be assessed, such as the protective measures the Applicant took while in Israel, or that the agents of persecution were her immediate family and local community, not state officials. In conclusion, Justice Pentney found that the issue with the RPD’s reasoning was not that it failed to mention most of the relevant facts, but that it failed to explain how each factor was weighed in the assessment of the Applicant’s subjective intent. The application for leave was allowed.