Warsame v. Canada (MCI) 2024 FC 630
In Warsame v. Canada (MCI) Justice Go examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant had disclosed that he was a member of the Sheikhal clan in Somalia before the Refugee Protection Division (RPD). To corroborate his identity, the Applicant provided a sworn affidavit from an individual claiming to be his paternal aunt. The RPD had refused the Applicant’s claim due to identity and credibility issues, determining that the paternal aunt’s affidavit did not establish the Applicant’s identity. On appeal before the RAD, the tribunal went further and found the aunt’s affidavit to be likely fraudulent, giving it no weight and drawing a negative inference against the Applicant’s credibility.
On judicial review, Justice Go found that the RAD should have advised the Applicant that it intended to raise a new issue and provided the Applicant an opportunity to respond. The finding that the aunt’s affidavit was fraudulent was new and distinct issue, and the RAD had relied on this determination to rebut the presumption of truthfulness. Based on this, Justice Go concluded that the RAD breached procedural fairness. The application for leave was allowed.
Setirekli v. Canada (MPSEP) 2024 FC 615
In Setirekli v. Canada (MPSEP) Justice Go reviewed the Applicant’s deferral decision. The Applicant had entered Canada in 2018, seeking asylum on the basis of his religion and political opinion. He proceeded to join his claim with his wife and daughter, who had entered Canada in 2017. The Refugee Protection Division (RPD) had rejected their claim. During this time, the Applicant and his wife separated and sought appeal of their claims separately. The Refugee Appeal Division (RAD) refused the Applicant’s appeal; however, his wife’s appeal was successful. Due to the Applicant’s impaired driving conviction, a deportation order was issued. The Applicant and his wife reconciled, with the wife adding the Applicant as a dependant on her permanent residence application. The Applicant’s wife was now a permanent resident, as were their four children. On May 5, 2023, the Applicant was served with a direction to report for his removal that was scheduled for May 14, 2023. The Applicant had requested deferral of his removal, submitting evidence that his permanent residence application was in the final stages of processing, as well as a partial copy of his request for an exemption from criminal inadmissibility on Humanitarian and Compassionate (H&C) grounds. The deferral request was refused but the Applicant managed to secure a stay of removal pending the determination of this application for judicial review.
On judicial review, Justice Go found that the Officer failed to consider Canada’s international obligations. In the Applicant’s deferral request, he had argued that Canada had an obligation to respect family reunification under international law, including the Refugee Convention. The Applicant stressed that if deported, he would face a lot of barriers to re-enter Canada, such as criminal inadmissibility. As such, he would unlikely see his wife and children for many years. The Applicant also highlighted that due to his wife’s and daughter’s refugee status they would be unable to visit him in Turkey. Lastly, the Applicant submitted that his removal would constitute as a serious breach of the International Covenant on Civil and Political Rights as well as s.3(3)(f) of IRPA (which provides that the IRPA is to be interpreted in a manner that complies with international human rights, to which Canada is signatory.)
Justices Go found that the Officer failed to consider to Applicant’s submissions with respect to international obligations when it came to family reunification. Taking into account the Supreme Court’s decision in Mason, 2023 SCC 21, the Officer was obligate to consider international law when analyzing and applying IRPA. The issue of Canada’s international obligations was relevant to the case at hand when it came to family reunification. In Mason, it was confirmed that decision makers were specifically required to consider Canada’s international obligations with respect to refugees- an issue that was right before the Officer. When it came to the Respondent’s submissions that none of the Applicant’s citations regarding international law spoke of family reunification, Justice Go was not convinced that a “black letter” approach to interpreting international law was consistent with the established jurisprudence. In any case, as the Officer failed to mention the Applicant’s submissions on international law, let alone do an analysis, Justice Go did not need to determine the extent to which the international obligations concerning family reunification would affect the Officer’s discretion to defer removal. The application for leave was allowed.
Canada (MPSEP) v. Dos Santos Freitas 2024 FC 608
In Canada (MPSEP) v. Dos Santos Freitas Justice Fothergill assessed the Applicant’s inadmissibility finding. The Minister was seeking judicial review of the Immigration Division’s (ID) production order, which ordered the Minister to produce all records relevant to an ongoing inadmissibility hearing, regardless of the records being in possession of the Royal Canadian Mountain Police (RCMP) or Canada Border Services Agency (CBSA). The Respondent was seeking the records in connection with his hearing on his potential inadmissibility to Canada on serious criminality, organized criminality, and transnational criminality grounds pursuant to ss.36(1)(b), 37(1)(a) and 37(1)(b) of IRPA.
On judicial review, Justice Fothergill cited Seyoboka, 2009 FC 104, wherein Justice de Montigny had determined that both the CBSA and RCMP were divisible for the purposes of disclosure in proceedings before the ID. The ID looked to distinguish Seyoboka on the basis that in that case, the RCMP played no role in CBSA’s investigation. The ID also remarked that Seyoboka was an old precent and that Justice de Montigny did not have the benefit of the Supreme Court’s decision in R v. McNeil, 2009 SCC 3. Justice Fothergill noted that by applying R v. McNeil to the current administrative proceedings before the ID, “the RCMP may be under a corollary obligation to disclose all relevant information, including exculpatory information, to the CBSA for the purposes of the inadmissibility hearing. However, this does not mean that the RCMP is itself subject to a production order issued by the ID” (at par. 25).
When it comes to inadmissibility hearings, the CBSA is the “Crown.” The duty to disclose rests with CBSA, not the hearings officer appointed to represent the Crown before the ID. The CBSA, as the Minister’s delegate authority seeking a Respondent’s inadmissibility, had a duty to make reasonable inquiries from other Crown agencies or departments regarding availability of records. When again applying R v. McNeil, “the CBSA should make reasonable inquiries of the RCMP to obtain all records, including exculpatory records, that may be relevant to the inadmissibility hearing before the ID. If the CBSA is denied access to the RCMP’s file, then this should be disclosed to counsel for [the respondent] so he may pursue the course of action he considers most appropriate” (at par. 29). If the RCMP had refused to disclose relevant records to CBSA, one possible avenue for the Respondent was to seek a summons from the ID pursuant to s.165 of IRPA, to insist on disclosure from the RCMP as a third party. Then again, the Responded could have also sought a stay of proceedings on the ground of procedural unfairness, or dismissal of the Minister’s application on the basis that the applicable evidentiary threshold had not been met.
Justice Fothergill concluded by finding that the “ID misapprehended the statutory framework that governs the relationship between the Minister, the CBSA and the RCMP, and misconstrued the nature of the Minister’s responsibility for the agencies within his portfolio. In so doing, the ID failed to grasp the distinction in law between first party and third-party disclosure in administrative proceedings” (at par. 31). The ID’s production order request from the Minister “whether those records were in possession of the CBSA or the RCMP” was unreasonable. The application for leave was allowed, with the ID’s production order quashed. The Respondent was at liberty to seek further disclosure of records from the CBSA and, if necessary, from the RCMP as a third party, in accordance with this decision.
Tan v. Canada (MCI) 2024 FC 600
In Tan v. Canada (MCI) Justice St-Louis examined the Applicant’s citizenship revocation decision. The Applicant had married a Canadian citizen, securing permanent residence through sponsorship, and later obtaining citizenship herself. The Applicant and her husband afterward divorced, and she remarried. In 2011, Canada Border Services Agency (CBSA) started looking into a fraudulent marriage scheme, with the Applicant’s husband providing a signed statutory declaration that their marriage was fraudulent. In 2015, Immigration, Refugees and Citizenship Canada (IRCC) started revocation proceedings under the new provisions of the Citizenship Act that came into effect that year. The Applicant denied her ex-husband’s allegations and argued that the citizenship revocation regime was unconstitutional. Her revocation matter was placed on hold pending the Federal Court’s decision of the constitutional challenge. In 2017, the Court invalidated the provisions in question, finding that ss.10(1), 10(3) and 10(4) of the amended Citizenship Act violated s.2(e) of the Canadian Bill of Rights. However, the court found that the provisions in question did not violate ss.7 or 12 of the Charter. The Applicant’s initial Notice of Intent to Revoke Citizenship was cancelled.
In 2018, new provisions came into effect with respect to citizenship revocation. IRCC sent the Applicant a Request for Information letter, advising her that IRCC had information indicating that she may have secured her Canadian citizenship through false representation, fraud, or knowingly concealing material circumstances. With the aid of counsel, the Applicant submitted a written response. In 2019, IRCC sent the Applicant another letter, letting her know that a new revocation process has commenced pursuant to s.10(3) of the Citizenship Act. The Applicant had opted for the Minister to decide her case rather than having it referred back to the Federal Court for a decision. The Applicant also requested that the Minister hold a hearing so that she could provide oral testimony. Relying on the Federal Court’s decision in Hassouna, 2017 FC 473, and s.2(e) of the Canadian Bill of Rights, the Applicant argued that a hearing was necessary, as credibility was a central issue for determining whether fraud had been committed as well as for asserting personal circumstances. Ultimately, the Applicant’s citizenship was revoked in 2022 by the Minister’s delegate under s.10(1) of the Citizenship Act. The Minister’s delegate was satisfied, on a balance of probabilities, that the Applicant had secured her Canadian citizenship through false representation, fraud, or knowingly concealing material circumstances. The Minister’s delegate also considered the Applicant’s personal circumstances, however, found that they were insufficient in granting relief in light of all the elements of the case.
The Minister delegate’s decision was the subject of the following judicial review. Prior to the hearing, the Applicant filed a Notice of Constitutional Question regarding the validity of ss.10 and ss.10.1 of the Citizenship Act. The Applicant argued that 1) the amended Citizenship Act violates par. 2(e) of the Bill of Rights; 2) the amended Citizenship Act is in breach of s.7 of the Charter; 3) the decision was unreasonable; and 4) to have costs awarded in her favour. The Applicant sought declaration that ss.10 and 10.1 of the Citizenship Act were invalid, ultra vires, and of no force and effect. The Applicant also asked that the decision be quashed and sent back for redetermination. Lastly, the Applicant submitted a question to the Court to be certified. Justice St-Louis rejected the Applicant’s arguments. Justice St-Louis was satisfied that as the constitutional issue was not raised before the Minister’s delegate, it would not be appropriate to consider the constitutional issue on judicial review. Regardless, Justice St-Louis found that s.10 of the Citizenship Act (the only provision in play) did not breach s.2(e) of the Canadian Bill of Rights or s.7 of the Charter. Justice St-Louis found that the Applicant failed to demonstrate how the decision was unreasonable, and no special reason existed to award costs. Justice St-Louis dismissed leave, and certified the following question proposed by the Respondent:
Does section 10 of the Citizenship Act, by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights?