Cardenas Medina c. Canada (MCI) 2024 CF 388

In Cardenas Medina c. Canada (MCI) Justice Gascon examined the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants (a husband, wife, and their minor children) sought asylum in Canada due to alleged risk of persecution in Columbia as a result of the wife’s anti-corruption activities. The Refugee Protection Division (RPD) refused the Applicants’ claim due to availability of state protection, and the RAD dismissed their appeal. On judicial review, Justice Gascon found the Applicants raised a compelling argument related to the RAD’s failure to address their submissions with respect to state protection, primarily, the Applicants’ interactions with the local police in May and August of 2019. The RAD had mentioned the argument during their credibility analysis, but failed to explain why the Applicants’ unsuccessful requests for state protection were insufficient to rebut the presumption of state protection. In addition, the RAD failed to consider evidence specifically identified by the Applicants that was relevant to state protection. Justice Gascon was not satisfied that the RAD’s reasoning adequately addressed the Applicants’ concerns. The application for leave was allowed.


Akbariarmand v. Canada (MCI) 2024 FC 377

In Akbariarmand v. Canada (MCI) Justice Sadrehashemi reviewed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant sought asylum in Canada due to fear of persecution in Iran from the government, as well as his uncle, and ex-girlfriend’s family. The Refugee Protection Division had refused his claim on the grounds of 1) lack of nexus with a Convention ground; 2) no well-founded fear of harm; and 3) there was a viable internal flight alternative (IFA). The RAD dismissed the Applicant’s appeal solely on the existence of an IFA in Isfahan, Iran. The RAD had indicated that in making its IFA determination, it did not consider other issues addressed by the RPD (i.e. nexus and well-founded fear), which were part of the Applicant’s challenge on appeal. It is well established that, provided the totality of the circumstances are considered, a decision maker can proceed directly to an IFA determination without a credibility assessment or assessing if there is a well-founded fear of persecution in the Applicant’s home region. The issues, in this case, was the RAD failing to grapple with the nature of the agents of persecution and the harm faced when making a determination that the state authorities had no motivation to locate the Applicant at the proposed IFA.

The RAD had accepted that the Applicant had been convicted of consuming and transporting alcohol a day prior to leaving Iran. The RAD also accepted the Applicant’s claim that his ex-girlfriend’s father had contacted the authorities and alleged that he had committed adultery. While the RAD found no evidence that the Applicant would likely face execution for sexual activity outside of marriage, the RAD still found the Applicant could face serious harm. In the end, the RAD made a determination that the government was not motivated to locate the Applicant as there was no evidence to indicate that the government had looked for the Applicant since his departure. This was the extent of the RAD’s analysis. It was the same analysis used to make a finding that his ex-girlfriend’s family and his uncle would not be motivated to locate him in Isfahan.

Justice Sadrehashemi found the RAD’s decision was unsupported by the evidence and left multiple questions unanswered. The RAD’s analysis was based on an unsupported assumption that the government was not interested in the Applicant as they had not sought him after he had left the country. The RAD’s analysis overlooked the fact that the Iranian government controls the country’s points of entry and exit. The RAD failed to address the practical issues of the Applicant’s interaction with the authorities upon re-entering the country, give the allegations made against him. There was no evidence to indicate that the state’s interest in the Applicant would be any different in Isfahan as opposed to Tehran, or any other part of the country. The RAD failed to grapple with a number of issues that were central to the main question of whether the Applicant would be able to safely relocate to Isfahan. The application for leave was allowed.


Canada (MPSEP) v. Hemed 2023 FC 376

In Canada (MPSEP) v. Hemed Justice Gascon analyzed the Respondent’s Immigration Appeal Division (IAD) decision. The Respondent had admitted that he had been a member of the Eritrean Liberation Front- Revolutionary Council (ELF-RC) for a short period of time between 1999-2000. The Immigration Division (ID) determined that he was not inadmissible to Canada pursuant to s.34(1)(b) and (f) of IRPA, and the IAD upheld the decision. The IAD found that there was insufficient evidence to establish reasonable grounds that the ELF-RC engaged in or instigated the subversion by force of a government. The Minister sought to appeal the IAD’s decision, arguing that the IAD committed two errors: 1) simply because the ELF-RC was mainly involved in conflicts against competing groups did not mean that there weren’t reasonable grounds to believe that it also engaged in or instigated the subversion by force of the government; and 2) the concept of membership in an organization must be interpreted broadly. As the IAD acknowledged that the ELF-RC was a member of alliances with other organizations, it was an error not to find the ELF-RC also as an organization described in s.34(1)(b) of IRPA.

Justice Gascon was not persuaded by the Minister’s arguments. When it came to the Minister’s first argument, no clear evidence existed that the ELF-RC participated in subversion by force against the government. While the IAD’s interpretation may have been more restrictive, it was justified on the evidence and was intelligibly explained. With respect to the second argument, the Minister seemed to imply that subversive acts committed by separate organizations forming part of an alliance should be attributed to all that make up the alliance. Justice Gascon found that the IAD was not at fault for not adopting the Minister’s position. The IAD found that while the ELF-RC had allied itself with other organizations over the years, including those that engaged in subversive acts, the ELF-RC itself was not a subversive actor. The IAD’s decision was based on the evidence before it and the Minister did not submit any materials or persuasive arguments to challenge this finding. The application for leave was dismissed.


Wahyudini v. Canada (MCI) 2024 FC 350

In Wahyudini v. Canada (MCI) Justice Azmudeh assessed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant is a citizen of Indonesia who originally entered Canada on a work permit as a Live-in caregiver. Unbeknownst to her, the agent who aided her with her application submitted an altered IELTS certificate with her work permit application. The agent collaborated with the Applicant’s abusive employer to recruit her to Canada. The Applicant was a victim of sever abuse and exploitation at the hands of her first employer and recruiter. When the Applicant managed to escape her abusive environment, she reported her employer to the authorities for alleged fraud. The Immigration Division (ID) found the Applicant inadmissible for misrepresentation due to the IELTS results. The Applicant’s request for exemption on H&C grounds was also denied.

On judicial review, Justice Azmudeh identified the below undisputed evidence relevant to the case at hand: 1) the Applicant was inadmissible to Canada as a result of indirect misrepresentation; 2) the Applicant had lost her husband and young son in a fire in 2005; 3) the Applicant had submitted evidence of gender-based discrimination in Indonesia; 4) the Applicant submitted evidence of various vulnerabilities, including the sever abuse and exploitation she experienced at the hands of her employer, evidence of being a victim of fraud, and evidence of obtaining assistance from the Salvation Army Illuminate (a service for survivors of human trafficking and exploitation); and 5) the Applicant submitted evidence of establishment in Canada. Justice Azmudeh noted that while a finding of misrepresentation is a relevant and serious factor, it does not exempt an Officer from conducting a reasonable assessment of the Applicant’s circumstances and provide clear reasons for the determination. Justice Azmudeh found that the Officer had either overlooked or ignored the extensive evidence about the Applicant’s vulnerabilities, which presented the Applicant’s context.

Justice Azmudeh also found that the Officer failed to consider the evidence of hardship and harm that the Applicant may face if she was to return to Indonesia. Instead, when doing the H&C assessment, the Officer confused the risk associated upon return by relying on the outcome of her Pre-Removal Risk Assessment (PRRA). This was unreasonable, and tainted the Officer’s assessment when it came to hardship. Lastly, Justice Azmudeh found that the Officer applied an unreasonably high threshold when it came to exceptionality while assessing her establishment in Canada, and the hardship she would face upon return to Indonesia. Justice Azmudeh stated, “the exceptionality of H&C relief is not based upon an applicant’s exceptional circumstances as compared to others, but rather, on a fact-specific analysis on the applicant’s situation” (at para. 26) The application for leave was allowed.


Cabrera v. Canada (MCI) 2024 FC 342

In Cabrera v. Canada (MCI) Justice Azmudeh examined the Applicant’s Refugee Protection Division (RPD) decision. The Applicant was a citizen from Cuba who claimed asylum in Canada on the basis of his political opinion. The RPD rejected the Applicant’s claim on credibility grounds, making a Non-Credible Basis (NCB) finding. On judicial review, Justice Azmudeh found that the RPD had limited their credibility finding to a small number of perceived contradictions, making the credibility assessment of past events unreasonable. The RPD had nitpicked at individual pieces of evidence, with little regard of whether or how the evidence fit in the claim. The process was made microscopic, and the logic circular, breaking the rational chain of reasoning and resulted in an unintelligible decision. What’s more, the Member had failed to assess the credibility of the Applicant’s political opinion, which was key to whether he faced a prospective risk of persecution. This was relevant in light of the country conditions on the Cuban government’s lack of tolerance for dissent. The NCB finding was also unreasonable, as it was intertwined into the unreasonable reasoning and could not be separated from the decision. The application for leave was allowed.