Mvana c. Canada (MCI) 2024 CAF 49

In Mvana c. Canada (MCI) Justices de Montigny C.J., Boivin and Roussel JJ.A. assessed the Appellant’s Federal Court decision (2023 FC 329). The Federal Court had dismissed the Appellant’s judicial review of an Immigration Appeal Division (IAD) decision. The Federal Court had certified a question on the constitutionality of s.36(3)(a) of IRPA.  Section 36(3)(a) states that for the purpose of inadmissibility under s. 36(1) and s.36(2) “an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily.” The Appellant argued that the provision under 3.36(3)(a) of IRPA resulted in unequal treatment for citizens and non-citizens who were found guilty of a summary conviction, and that the Federal Court erred in their finding that s.36(3)(a) of IRPA did not violate s.15 of the Charter.

The Federal Court of Appeal (FCA) found that the Federal Court applied the appropriate standard of review. Moreover, the Federal Court of Appeal was of the same opinion as the Federal Court, in that the IAD did not err in determining that s.36(3)(a) of IRPA did not violate s.15(1) of the Charter. Reiterating the most fundamental principle of immigration law, non-citizens do not have an absolute right to enter or remain in Canada. As s.6 of the Charter authorizes differential treatment between citizens and non-citizens, this difference does not conflict with s. 15 of the Charter, as one provision of the Charter cannot be used to cancel another. Lastly, the Appellant had argued that s.36(3)(a) of IRPA was ambiguous, however the Court was not persuaded by this argument. In any event, if such ambiguity existed, it was not enough to render the provision contrary to s. 15 of the Charter. The appeal was dismissed, and the Federal Court of Appeal certified the bellow question:

Question: Does paragraph 36(3)(a) of the Immigration and Refugee Protection Act contravene subsection 15(1) of the Canadian Charter of Rights and Freedoms, despite subsection 6(1) of the Charter, and, therefore, is it inoperative under section 52 of the Charter?

Answer: No.


Guzman v. Canada (MCI) 2024 FC 433

In Guzman v. Canada (MCI) Justice Norris examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of Mexico, who claimed asylum on the basis of fear of persecution due to his sexual orientation. While the Refugee Protection Division (RPD) found the Applicant had established his sexual orientation (with credible evidence and proof of adverse treatment), the claim was rejected due to a viable internal flight alternative (IFA) in Mexico City. The RAD upheld the RPD’s decision and refused the appeal.

On judicial review, the Applicant relied on NDP country documentation that was not mentioned in his RAD appeal submissions (this version superseding the earlier one while the appeal was pending). Justice Norris stated that the RAD Member was expected to have considered updated NDP evidence and the new evidence relied upon by the Applicant should have been considered part of the record. The Applicant also relied on two RAD decisions wherein the Tribunal reached the opposite conclusion regarding Mexico City as a viable IFA for gay men. Both decisions pre-dated the Applicant’s appeal, but neither had been brought to the RAD’s attention on appeal. Since the decisions were not evidence, the Applicant’s reliance on them did not engage the general rule against supplementing the record. Instead, it brough forward the question of whether the Applicant was raising a new issue. The Applicant maintained that that the fact that other RAD panels reached different conclusions regrading the IFA validity of Mexico City, on the basis of some of the same evidence, called into question the reasonableness of the decision. Ultimately, Justice Norris saw this stance as a new argument rather than a new issue.

Justice Norris considered the reasonableness of the decision and whether it met the first branch of the IFA test, finding that the Tribunal failed to consider new and significant information that was contrary to the finding that Mexico City was a safe place for gay men. Justice Norris, however, did not agree that the decision was unreasonable because it failed to explain why it did not reach the same conclusion on IFA as the other two decisions. The two prior decisions were not binding on the RAD member. “Regardless of the findings in those cases, it was incumbent on the Member to make his own determination as to whether Mexico City is a viable IFA for a gay man like the applicant. The mere fact that different panels had assessed the same evidence differently and, consequently, had reached different conclusions does not point to a fundamental flaw in the RAD’s analysis of that evidence. Nor does this circumstance alone give rise to any sort of justificatory burden on the RAD vis-à-vis those other decisions” (at par. 58). The application for leave was allowed.


Farahani v. Canada (MCI) 2024 FC 423

In Farahani v. Canada (MCI) Justice Aylen reviewed the Applicant’s Refugee Protection Division (RPD) cessation decision. The Applicant was an Iranian film maker and human rights activist who was granted protection in 2005 based on her activities as a student activist in Iran, her gender, and affiliation with her politically active mother and sister. The Applicant secured permanent resident status in 2008. Since then, the Applicant travelled back to Iran 16 time, as well as other countries, using her Iranian passport that was renewed or obtained after she had secured permanent resident status. In 2019, the Minister made a successful cessation application on the basis of reavailment.

On judicial review the Applicant argued against the RPD’s cessation decision, claiming that the RPD made numerous errors. Having gone through the various grounds of review, Justice Aylen agreed that the RPD’s consideration of the Applicant’s actual reavailment was unreasonable. The reavailment test had three connecting elements: 1) voluntariness; 2) intention; and 3) actual reavailment. The RPD had determined that by returning to Iran on her Iranian passport, she had obtained Iran’s protection. However, the evidence had shown that upon her return to Iran in 2018, Iran had seized her passport and prevented her from leaving the country as a result of her participation in a documentary about Iran. The Applicant was unable to secure release of her passport until 2020, and as a result unable to leave Iran. This evidence was a direct contradiction to the RPD’s argument that the Applicant had obtained Iran’s protection, and the RPD had failed to engage with this evidence or the Applicant’s arguments on this matter. Justice Aylen was aware that that passport seizure only occurred during one out of sixteen trips to Iran. However, the RPD chose to make a global finding with respect to each element of the test, rather than assessing re-availment on a trip-by-trip basis. Whether the passport seizure in 2018 was relevant to the assessment or whether the Applicant actually obtained the diplomatic protection of Iran on her 15 other trips would be a matter for consideration on redetermination. The application for leave was allowed.

Shah v. Canada (MIRC) 2024 FC 398

In Shah v. Canada (MIRC) Justice Zinn assessed the Applicants’ Humanitarian and Compassionate (H&C) application decision. The Applicants were an elderly married couple who were citizens of Pakistan and Christians. They have been residing in Ontario for over 10 years with their adult son, daughter-in-law, and two young grandchildren. Following their asylum refusal, the Applicants made several unsuccessful attempts in securing permanent residence in Canada (4 H&C applications and 2 Pre-Removal Risk Assessment applications). The Applicants were currently out of status. This was the judicial review of the refusal of their fourth H&C application. Justice Zinn stated that the “correct legal test is not to assess the recited factors using a strict hardship lens, but a broader one that considers the humanitarian and compassionate factors that is responsive to the facts of the case” (at par. 35). Justice Zinn found the Officer erred by applying the incorrect legal test. While this was sufficient to find the decision unreasonable, Justice Zinn furthered his analysis for the future Officer assigned to the file. Justice Zinn found that the Officer had unreasonably assessed the Applicants’ establishment, minimizing its weight on the sole fact that the Applicants were out of status. Justice Zinn also noted that the Officer’s decision failed to show that he assessed the best interests of the grandchildren. Rather, the Officer focused on how the Applicants’ departure would affect their son and daughter-in-law, who relied on the Applicants for childcare. The application for leave was allowed.

Nouman v. Canada (MCI) 2024 FC 391

In Nouman v. Canada (MCI) Justice Norris reviewed the Applicants’ Refugee Protection Division (RPD) division decision. The Principal Applicant (PA) and her children sought asylum in Canada on the basis of feared persecution from the PA’s uncle in Jordan. The uncle did not believe the PA’s husband to be suitable, causing several incidents of conflict and violence. In 2021, the uncle asked the PA to divorce her husband immediately, threatening to use his influence to take away her children. The PA, fearing her uncle’s influence with the state authorities, took her children to Canada. Her husband joined them later, with his claim being processed separately. The RPD refused the PA’s claim, finding that while her claim was credible, her beliefs did not “correspond with the objective evidence about the agents of persecution and the available state protection.” The RPD had based their decision on two reasons: 1) insufficient evidence that the PA’s uncle had the legal authority to order her to divorce her husband or take away her children; and 2) insufficient evidence that the PA’s uncle had “partial influence” to materialize his threats. On judicial review, Justice Norris found the RPD’s decision unreasonable as the Tribunal misconstrued the central issues. The PA never claimed that her uncle would act legally, rather her fear was that he would act extra-legally, and that he could do so with impunity due to his influence with state authorities and his powerful connections. The application for leave was allowed.