Collins v. Canada (MCI) 2024 FC 665
In Collins v. Canada (MCI) Justice Strickland examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of Nigeria who was seeking asylum due to risk of harm from her ex-husband. The Applicant alleged that her ex-husband had instructed members of the Black Axe cult to kill her for hampering his attempts to carry out fraud against her. The Refugee Protection Division (RPD) denied the Applicant’s claim due to availability of state protection. The RPD made no credibility findings. On appeal the RAD provided the Applicant with notice that two new issues would be considered: credibility and Internal Flight Alternative (IFA). The Applicant provided submissions in response, but was unsuccessful, and the RAD dismissed the appeal. The determinative issue was credibility, with the RAD making many negative credibility findings. One finding looked at the Applicant’s testimony about an incident in which she alleged that armed men came to her office. The RAD found the Applicant’s testimony to be materially inconsistent with her Basis of Claim.
On judicial review, Justice Strickland raised concern with the generic nature of the RAD’s notice, providing no specifics of the RAD’s credibility concerns. Without identifying or providing a basic description of the RAD’s concerns, the Applicant was forced to make anticipatory submissions rather than addressing specific concerns. Therefore, when it came to the RAD’s credibility concerns regarding the Applicant’s inconsistent evidence about the alleged incident, this was a new issue, and the Applicant was not provided an opportunity to respond. Justice Strickland found this to be a breach of procedural fairness. While the RAD’s other negative credibility findings may have been well founded, for the above reason, the application for leave was allowed.
Zhao v. Canada (MCI) 2024 FC 645
In Zhao v. Canada (MCI) Justice Whyte Nowak reviewed the Applicant’s inadmissibility decision. The Applicant was a citizen of China who applied for permanent residence in Canada. The Applicant’s application was refused due to his educational training at a Chinese military university, as well as his membership in a unit of the People’s Liberation Army that specialized in communication and signals intelligence. The Officer found that there were reasonable grounds to believe that the Applicant had been involved in espionage that was against Canada or contrary to Canada’s interests. Nonetheless, when rendering the decision, the Officer used sources that were not disclosed to the Applicant in the procedural fairness letter. One of the sources the Officer relied on not only contained information that claimed to support a key finding, but also had information that was highly relevant to one of the Applicant’s submissions. Justice Whyte Nowak found that the Applicant was denied an opportunity to respond to the information relied upon by the Officer, which constituted a breach of natural justice. Justice Whyte Nowak went on to state that natural justice cannot be minimized in the interests of expediency. The application for leave was allowed.
Galindo Caballero v. Canada (MCI) 2024 FC 642
In Galindo Caballero v. Canada (MCI) Justice Turley assessed the Applicants’ Humanitarian and Compassionate (H&C) decision. The Applicants sought to appeal their H&C refusal. On Judicial review, Justice Turley found that the Officer had incorrectly applied an elevated threshold when assessing the Applicants’ establishment in Canada. Specifically, the Officer erred by finding the Applicants’ level of establishment to be not unusual relative to similarly situated individuals. By basing the establishment analysis on exceptionality (in comparison to others), the Officer failed to engage in the contextual, fact-specific exercise. Justice Turley noted that merely classifying the Applicants’ level of establishment as “usual,” “ordinary,” or “common” was not enough to quash the Officer’s decision. However, it is problematic to use terms to invoke or impose a threshold of exceptionality on an applicant. Each case will thus “turn on” the assessment of the Officer’s use of such words in context to determine if they were used reasonably (descriptive) or unreasonably (as a legal test). Justice Turley found that the Officer’s assessment turned on a search for exceptionality, making the decision unreasonable. In addition, Justice Turley found that the Officer failed to assess and assign weight to the principal applicant’s cleaning service job. Rather, the Officer grasped on the absence of any indication that these services “could not be performed by another service provider,” or that the principal applicant’s removal would have a detrimental effect on the business. In Wahyudini, 2024 FC 350, the Court concluded that this type of logic (require the work to be indispensable) amounted to the imposition of “an unnecessary high threshold of exceptionality.” Lastly, the Officer failed to explain why the Applicants’ establishment was not “unusual compared to others.” There was no indication as to what else could have been reasonably expected from the Applicants. Based on the above, the Officer’s rationale demonstrated a reliance on an exceptionality test, which is not the correct legal threshold for H&C, in accordance with Kanthasamy. The application for leave was allowed.
Wang v. Canada (MCI) 2024 FC 632
In Wang v. Canada (MCI) Justice Ahmed analyzed the Applicant’s cessation decision. In 2003, the Applicant was found to be a Convention refugee. Thereafter, the Applicant obtained a Chinese passport and travelled back to China five times between 2011 to 2017. The Minister put forward a cessation application in 2020 and the Refugee Protection Division (RPD) granted the application on the basis of s.108(1)(a) of IRPA (reavailment), finding that s.108(1)(e) of IRPA (change in circumstances) did not apply.
On judicial review, Justice Ahmed noted that the central question before the RPD was not whether the circumstances in China had changed, but also whether the Applicant’s circumstances had changed. The person seeking asylum must always remain the focus in asylum determinations. “Accepting an interpretation under section 108(1)(e) that allows for the changes in circumstances to be determined only with reference to objective country conditions belies this emphasis on an individual’s circumstances. It is also inconsistent with a precondition for change of circumstance analyses under section 108(1)(e), namely, whether ‘the change in circumstances support a continuation of a risk on return today’…Moreover, this understanding of the change of circumstance analysis for section 108(1)(e) accords with the text of ‘the reasons for which the person sought refugee protection’ under section 108(1)(e). Nothing in this text connotes that those ‘reasons’ cannot include an individual’s personal circumstances” (at par. 20). With the above in mind, Justice Ahmed found the RPD’s s.108(1)(e) analysis to be unreasonable. By focusing almost exclusively on Chinese country documents, insufficient attention was given to the Applicant’s personal circumstances. The application for leave was allowed.
Dass v. Canada (MPSEP) 2024 FC 624
In Dass v. Canada (MPSEP) Justice Ahmed examined the Applicant’s inadmissibility decision. The Applicant was a 51-years old permanent resident, who had resided in Canada for over 30 years. The Applicant was cutoff by his family when they learned he was gay. From 2005 to 2006 the Applicant began to have mental health issues and diagnosed with schizophrenia. Between 2016 and 2022 he started to use crystal methamphetamine, stopped his medications, became homeless, experienced psychosis, and was in and out of the hospital and jail. Between 2021 and 2022, he committed several crimes. In 2022 the Applicant stopped using crystal methamphetamine, began treatment for schizophrenia, and living in supportive housing. In March 2022, the Minister initiated a s.44(1) of IRPA report for the Applicant’s 2021 arson conviction. In October 2022, the Minister initiated another s.44(1) report pursuant to Applicant’s 2022 arson conviction. In 2023, the Officer recommended that the Applicant be referred to the Immigration Division (ID) for an admissibility hearing, finding that the Humanitarian and Compassionate (H&C) factors did not overcome the seriousness of his convictions. The Minister’s delegate agreed and referred the report back to s.44(2) of IRPA. The report is the subject of this judicial review.
On judicial review, Justice Ahmed looked at precisely what is the form of discretion at play in a s.44 referral process. It was in Justice Ahmed’s view that there were two forms of discretion: 1) the discretion to refer a report to the ID, or 2) the discretion to consider the individual’s personal circumstances or not. The first form of discretion undoubtedly exists, and the second form exists for Officers and delegates in the s.44 referral process as well. “Specifically, I do not find that a lack of discretion to consider an individual’s circumstances, as held in Sidhu, is an effect of Obazughanmwen” (at par. 32). Both Sidhu and Obazughanmwen provided extensive discourse on the discretion of immigration officers and Minister’s delegates to consider H&C factors in the s.44(1) and s.44(2) referral process. The Federal Court of Appeal’s ruling in Obazughanmwen regarding the discretion of officers and delegates to consider personal circumstances also warranted consideration. “Stating that there is no obligation to consider personal circumstances does not mean that the officers and delegates cannot consider personal circumstances, despite the Court’s holding in Sidhu that these circumstances are “beyond the reach” of officers and delegates, including H&C considerations” (at para. 40). Rather than bare the obligation, the decision makers bear the discretion to consider personal circumstances and would not be faulted if they do not do so.
In the case at hand, both the Officer and the Minister’s delegate had considered the Applicant’s circumstances, making this aspect of the decision under review for reasonableness. Justice Ahmed found that the decision was not sufficiently responsive to the Applicant’s submissions when it came to a report being issued for his less serious offences, or having the matter held in abeyance until the resolution of his criminal appeal. In addition, Justice Ahmed found that by considering the Applicant’s rehabilitation and requirement that he demonstrate that he “will” or “would” be rehabilitated, elevated the threshold beyond what was required. Lastly, Justice Ahmed found the finding that support may be available in Trinidad and Tobago were impermissibly vague. It was in Justice Ahmed’s view that the above, as well as lack of responsiveness to the Applicant’s submissions, were serious enough to render the decision unreasonable. The application for leave was allowed.