Toscano Rosales v. Canada (MCI) 2024 FC 553

In Toscano Rosales v. Canada (MCI) Justice Kane examined the Applicant’s Refugee Protection Division (RPD) decision. The Applicant’s father was appointed as sheriff in the Totonicapán region of Guatemala, where he worked with vulnerable youth to curb them from joining the Mara Salvatrucha 13 (MS-13). As a result of his father’s activism, the MS-13 violently targeted the Applicant’s family. The Applicant’s father had fled the country in 2008, successfully claiming asylum in Canada and being granted protection in 2010. After the father’ departure, the Applicant was kidnapped, tortured, branded, extorted and threatened by the MS-13. The Guatemalan police did not aid the Applicant when he attempted to file reports, which the Applicant attributed, in part, to his indigenous identity. The Applicant had originally fled to the United States in 2012, unfortunately his asylum claim was refused in 2018. The Applicant then came to Canada, seeking asylum. He later amended him Basis of Claim (BOC) to include more up-to-date information on the MS-13, as well as the risk he would face as: 1) an Evangelical Christian; 2) his father’s son; and 3) as an indigenous person. The RPD found no link between the Applicant’s claim and a Convention ground, therefore only conducting a s.97 analysis. The RPD found the Applicant to not be a person in need of protection.

On judicial review, Justice Kane found the RPD’s nexus analysis to both lacked justification and intelligibility. The Applicant had relied on his family history of being targeted by the MS-13. The Applicant’s father’s attestations of threats, murder, and extortion due to his activism had been accepted. The Applicant had also submitted that police protection was withheld due to his indigenous status. Justice Kane found that both convention grounds should have been assessed, including their intersection. The RPD’s failure to do a s.96 analysis, and to provide any reasons, rendered the decision unreasonable. In addition, Justice Kane found the RPD’s assessment of his family’s situation, and the inferences and assumptions made, lacked logic and consistency. The RPD’s adverse credibility finding stemmed largely from the Applicant’s father’s lack of initiative to sponsor his family to Canada. Justice Kane argued that the Applicant should not have been held responsible for this father’s inaction. The application for leave was allowed.


Hugnu v. Canada (MCI) 2024 FC 540

In Hugnu v. Canada (MCI) Justice Azmudeh reviewed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was an elderly woman residing in Bristol, United Kingdom (UK). The Applicant was born in Zimbabwe but moved to the UK with her common-law partner. She was in a relationship with him from 1974 until his passing in 2000. The Applicant’s immediate family consisted of only two sisters, who lived in Canada. After the passing of her common-law partner, she applied for permanent residence in Canada under the Federal Skilled Worker class. However, her application was refused in 2010. The Applicant was diagnosed with cancer in 2015, with her only support during treatment and recovery being a friend, who had since died. With her friend’s passing, the Applicant was left without any support in the UK. While her sisters had visited the Applicant in the past, travel had become more difficult with time; one of her sisters had severe arthritis, while the Applicant no longer had the means to travel. The Applicant submitted that there was no Jewish community in Bristol (her parents being Jewish and both Holocaust survivors), whereas there was a thriving Jewish community in Toronto. The Officer refused the Applicant’s H&C application.

On judicial review, Justice Azmudeh argued that the purpose of H&C discretion is to not only “mitigate the rigidity of law in an appropriate case” and that there was not a limited set of factors that could justify relief as context mattered. Justice Azmudeh noted that an Officer was to be alert and alive to individual circumstances. Justice Azmudeh found two interconnected flaws with the Officer’s decision: 1) the Officer had made certain findings based on pure speculation where the Applicant had provided evidence to the contrary; and 2) the Office’s segmented approach failed to assess the Applicant’s profile holistically. Moreover, the Officer assessed the application through with a high exceptionality threshold that has been rejected by the Federal Court. In conclusion, the Officer’s determination showed failure to be responsive to the true nature of the H&C application. The application for leave was allowed.


Nosiri v. Canada (MCI) 2024 FC 516

In Nosiri v. Canada (MCI) Justice Go assessed the Applicants’ Refugee Appeal Division (RAD) decision. The Principal Applicant (PA) and her sons were citizens of Nigeria, where the PA’s husband remained. The PA was a lawyer in Nigeria. Their claim was based on two factors: 1) a land dispute that had led to attempts on their lives; and 2) the PA’s perceived association with the Indigenous People of Biafra (IBOP). In 2017, the Nigerian military had declared IBOP a “terrorist organization”. The Refugee Protection Division (RPD) had refused their claim, and the RAD dismissed their appeal.

On judicial review, Justice Go found that the RAD had made two reviewable errors. First, the RAD had erred in concluding that it was unreasonable for the PA to not pursue legal action as a result of the land dispute because she believed it was a drawn-out process. However, the main reason why the PA did not initiate court proceedings, as she explained, was due to the fact that doing so would result in the government taking away her property. Moreover, the delays in the court system would have only allowed the agents of persecution to draw out her case for their own gain. The tribunal erred in failing to refer to the PA’s explanations, and the RAD either ignored or misinterpreted the evidence. Regardless, Justice Go found that this constituted a reviewable error.

Second, Justice Go found that the RAD erred by finding that the PA had failed to establish that she faced a serious possibility of persecution due to her alleged IBOP connection. The Applicants had submitted thorough evidence about how the PA’s lawyer friend, with whom she shared an office space, had held IBOP meetings under the guise of community events. The lawyer friend was arrested due to his involvement with IBOP, and there was a number of links between the PA and the lawyer friend that were known to the authorities. Evidence submitted showed that the PA’s husband was arrested and detained in connection to her. As the RAD had accepted all of this as credible evidence, Justice Go argued it was unreasonable for the tribunal to conclude that that the PA had not established that the Nigerian authorities wished to question her about her involvement in the IBOP meetings.  The authorities had already taken measures to act on this by arresting and detaining her husband. Justice Go concluded that the RAD’s findings on the matter were contradicted by the evidence it found credible. The application for leave was allowed.


Trotman v. Canada (MCI) 2024 FC 510

In Trotman v. Canada (MCI) Justice Go analyzed the Applicant’s Pre-Removal Risk Assessment (PRRA) application. The Applicant had attempted to seek asylum in Canada but was ineligible due to a prior criminal conviction. Instead, the Applicant proceeded to file a PRRA. The Officer had accepted the Applicant’s homosexual orientation but noted that “while discrimination may exist in Barbados, it does not ammount to open persecution.” The Officer also stated that “[t]here is little documentary evidence on file to demonstrate that the perception of the Applicant’s sexual orientation in Barbados would pose a risk to his life, or of cruel and unusual punishment or treatment.”

On judicial review, Justice Go found several errors with the Officer’s reasoning. First, the Officer erred in finding the Applicant’s documentary evidence to be biased. The Applicant had submitted numerous articles on the treatment of LGBTQ persons in Barbados. The Officer failed to explain why the articles contained bias and were assigned little probative value. Due to this unexplained bias allegation, the Officer failed to consider the substance of said articles. Second, the Officer erred in the analysis of whether Barbadian LGBTQ faced persecution. The Officer has relied on three conclusions to support this finding: 1) while same-sex conduct may be against the law, state authorities have not show interest in enforcing the law; 2) the same-sex law was being challenged in High Court; and 3) Barbado’s charter was inclusive to those in the LGBTQI+ community.  However, Justice Go stressed that the High Court had yet to decide on the Court challenge, and the charter had not yet been adopted by the Parliament of Barbados, let alone implemented and enforced as law by the Courts. Justice Go stressed that it was well established that decision makers cannot rely on proposed laws or policies as part of their analysis on state protection. The Officers findings must be based on actual country conditions at the operational values, and the same principles should apply in this context.

Justice Go also remarked on the Minister’s key argument at the hearing- that the PRRA was based entirely on the Applicant being perceived as gay because of his relationship with his ex-partner, and that due to little evidence on this connection to his ex-partner, he provided no evidence that he was perceived as a homosexual. It is on this basis, the Minister argued, that the Officer found insufficient evidence that the perception of the Applicant’s sexual orientation would pose a risk. Furthermore, the Minister reminded the Court that the Applicant was a “convicted felon”, and there were credibility issues. Justice Go dismissed the Minister’s submissions. The Officer did not find the Applicant’s credibility to be a determinative issue, found that an oral hearing was not necessary, and never cited the Applicant’s criminal past to question his evidence. Justice Go was not convinced that the Officer had made a distinction between self-identification and perception or based a decision on it. In addition, such a distinction has no basis in refugee law. The Minister was essentially stating that the Applicant should not “out himself” as gay to avoid persecution- a proposition long rejected by the Federal Court. The Application for leave was allowed.


Sebamalai v. Canada (MCI) 2024 FC 501

In Sebamalai v. Canada (MCI) Justice Pamel examined the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants, an adult son and his parents, were citizens of Sri Lanka who claimed refugee protection on the grounds that their successful Christian Tamil profile had caused them to be targets for extortion and kidnapping. The Applicants’ other two children (two sisters) were already in Canada and had successfully claimed asylum (on the same basis that was now being claimed by the Applicants). The Refugee Protection Division (RPD) had found the father to be inadmissible under Article 1F(b), and the mother and son were excluded under Article 1E due to possessing Overseas Citizenship of India (OCI) status.  The Applicants argued that the sisters, who also held OCI status, had their claims accepted in 2021 and their panel member referenced the risk of persecution they would face as Christians living in India. The Applicants went on to state that as there was no real change of circumstances in India since their sisters’ claims, reasoning favoured a similar decision in their case. The RAD found that the RPD had erred in their Article 1F(b) finding when it came to the father but determined that all three Applicants were excluded under Article 1E.

On judicial review, Justice Pamel looked to see if the RAD was reasonable in departing from the RPD’s decisions in respect to the sisters. As each refugee claim is assessed on a case-by-case basis, neither the RPD nor the RAD is bound by the determination of another panel, even where the matter involves members of the same family.  Nevertheless, there must be a reasonable explanation for differing conclusions reached on matters that are quite similar and involve members of the same family. The Applicants submitted that 1) the evidence and religious based persecution of the sisters was similar to their own claim; 2) the sisters’ claims were based on the father’s experience; and 3) the whole family held OCI status. Justice Pamel found that the RAD had failed to provide a reasonable explanation for distinguishing the two previous RPD decisions. The RAD only indicated they were relying on a more up-to-date National Documentation Package (NDP). However, failing to elaborate on this stance, made it intelligible. Without knowing to what extent the NDP was updated, it was difficult to determine whether any of the updates involved elements that could inform the Applicants’ risk profile. The application for leave was allowed.


Tung v. Canada (MCI) 2024 FC 482

In Tung v. Canada (MCI) Justice Fuhrer assessed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was granted asylum in 2002 on the basis of his Falun Gong membership and secured permanent residence in 2004.  However, the Applicant lost her status in 2018 after a cessation finding was made on the basis of reavailment. The Applicant attempted to re-acquire permanent residence on H&C grounds, but her application was refused.

On judicial review, Justice Fuhrer found the Officer made several cumulative errors. First, it was an error for the Officer to characterize the Applicant’s status as temporary residence when she had been a permanent resident since 2018. Justice Fuhrer deemed this a minor misstep, as the Officer did recognize in their establishment analysis that the Applicant had resided in Canada for a significant period of time. Second, the Officer made another misstep in stating that the Applicant’s refugee status had been vacated. The Officer’s reference to vacation, and to the Applicant as a failed refugee claimant, were an unstated reason as to why the Officer gave negative weight to the cessation decision, giving rise to a concern regarding logic and transparency.

Justice Fuhrer also found that the Officer had unreasonably overlooked the significant length of time that the Applicant lived in Canada (with her children and grandchildren) due to lack of employment (she was retired), friendship, and community integration. The Officer saw the latter as measures of an “expected level of establishment.” Justice Fuhrer found the Officer’s approach to a be a rigid, checklist analysis. Moreover, the Officer unreasonably surmised that the Applicant would be able to arrange further trips to Canada (based on the trips she took decades ago), despite the evidence that she was financially dependant on her adult children, who had limited resources. In conclusion, Justice Fuhrer found that the Officer failed to properly weigh the significant length of time the Applicant had resided in Canada, in the context of the Applicant’s own situation, as opposed to “expected” circumstances. Lastly, Justice Fuhrer found that the Officer had also unreasonably assessed the Applicant’s lack of a hukou, which the Applicant would need to get access to housing and social benefits in China. The application for leave was allowed.