Algazal v. Canada (MCI) 2024 FC 753
In Algazal v. Canada (MCI) Justice Sadrehashemi examined the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was a Libyan citizen who had resided in Canada for about 15 years. He had applied for permanent residence on H&C grounds, but the application was refused due to an Administrative Deferral of Removal (ADR) being in place for Libya under s.230(1) of the IRPR. Due to the ADR, the Officer found that the Applicant’s hardship was mitigated because Canada was not currently removing individuals to Libya. On judicial review, Justice Sadrehashemi found the decision unreasonable as the Officer’s reasoning was not consistent with the Federal Court’s jurisprudence regarding an ADR’s impact on a hardship assessment. The Officer failed to consider that the Applicant had no other choice but to leave Canada if he wished to apply for permanent residence, unless an exception was made for him. Justice Sadrehashemi noted that there were numerous Federal Court decisions that have addressed this issue.
In addition, Justice Sadrehashemi found that the Officer failed to discuss the mitigating factors in a meaningful way; instead, the discussion read as boilerplate statements disconnected from the real concerns raised by the Applicant. Lastly, the Applicant had a medical condition that required him to take three MRIs a year, and this too was not addressed in the Officer’s analysis or in the separate section on the Applicant’s health concerns. No consideration was given on the medical treatments, if any, that the Applicant could receive in Libya. While not explicitly stated, this reasoning seemed to be based on the view that the hardship of the conditions in Libya would be mitigated by the ADR. Either way, the Officer’s failure to address this key issue was another basis on which the decision was deemed unreasonable. The application for leave was granted.
Momand v. Canada (MCI) 2024 FC 737
In Momand v. Canada (MCI) Justice Sadrehashemi reviewed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant had fled Afghanistan in 2021, after the Taliban came to power, travelling through numerous countries before reaching the United States in 2022. Shortly afterwards, the Applicant arrived in Canada and claimed asylum. However, the Applicant was forced to withdraw his claim as he was ineligible to make one due to the Safe Third Country Agreement (STCA). The Applicant was issued an exclusion order. The Applicant was not offered an opportunity to file a Pre-Removal Risk Assessment (PRRA) as the Canada Border Services Agency (CBSA) did not find him “removal ready” due to a Temporary Suspension of Removals (TSR) in place for Afghanistan under s.230(1) of the IRPR. The Applicant submitted an application for permanent residence on H&C grounds, primarily seeking relief based on the hardship he would face in returning to Afghanistan. The application was refused.
On judicial review, Justice Sadrehashemi found that the determinative issue was the Officer’s consideration of the conditions in Afghanistan and their impact on the Applicant. The key issue raised by the Applicant was the Officer’s statement that s.25(1.3) of IRPA limited Officers to “only look into consideration for the hardships that would not be considered under section 96 or 97(1),” and that the Applicant “provided little evidence on what hardships that he would face outside of the 96 or 97(1) if he were to return to Afghanistan.” Justice Sadrehashemi noted that the Supreme Court in Kanthasamy confirmed that “the restriction in section 25(1.3) does not preclude H&C officers from considering evidence filed in relation to section 96 or 97(1) risk; the facts and circumstances related to a risk claim could be considered but through the lens of a hardship assessment” (at par. 10). In the end, it was difficult to understand from the Officer’s brief reasons what hardship elements were considered. The reasons did not demonstrate that the Officer grappled with the Applicant’s submissions on hardship. Furthermore, other than acknowledging the TSR in place for Afghanistan, the Officer did not address the significance of this designation. The application for leave was allowed.
Parvez v. Canada (MCI) 2024 FC 705
In Parvez v. Canada (MCI) Justice Gagné assessed the Applicant’s citizenship revocation decision. The Applicant successfully claimed asylum, obtaining permanent residence in 1996 and Canadian citizenship in 1999. In 2010, the Applicant admitted to providing false representation in support of his refugee claim, and as a result, his refugee status was vacated. Subsequently, he had his citizenship revoked. However, the Applicant’s citizenship revocation was cancelled following the Federal Court’s decision in Hassouna, 2017 FC 473, wherein the Court found that the former ss.10(3) and 10(4) of the Citizenship Act were null and void. After new legislature came into effect in 2018, the Minister once more initiated a new citizenship revocation application against the Applicant. The Applicant did not contest that he obtained his citizenship by representing material facts, however submitted arguments in relation to his personal circumstances, and requested relief under s. 10(3.1)(a) of the Citizenship Act. The Minister revoked the Applicant’s citizenship for a second time.
On judicial review, Justice Gagné was of the opinion that although the Minister’s delegate did not have to consider the consequences of the Applicant’s removal in his assessment of the personal circumstances, the terms in s.10 of the Citizenship Act are broader than those used in similar provision of IRPA. Justice Gagné stated that “had the legislator intended to confer the same meaning to section 10 of the Citizenship Act, he would have used the same words. An applicant’s ‘personal circumstances […] that warrant special relief in light of all the circumstances of the case’ include but is not limited to ‘humanitarian and compassionate considerations [that] warrant special relief in light of all the circumstances of the case’” (at par. 23).Having said that, in this case, this distinction had no impact as the Applicant had raised only standard H&C factors for consideration.
In the Applicant’s affidavit, he had specified that he was the sole provider for his family (he had four minor children) and that if he was no longer able to work in Canada, his wife may be forced to rely on social assistance. However, the Minister’s delegate did not consider the Applicant’s loss of the right to work in Canada and how this would affect the best interests of the children (BIOC). Justice Gagné stated that “given the Minister’s delegate’s position as a decision maker at IRCC, they clearly should have been in a position to draw, and ought to have drawn, an inference that the children would be adversely affected by the Applicant’s loss of citizenship status and consequently of his right to work in Canada” (at par. 29). Justice Gagné found this oversight made the decision unjustifiable. Justice Gagné was also of the opinion that Minister’s delegate failed to assess: 1) the seriousness of the Applicant’s misrepresentation; 2) the evidence that it was or was not out of character for the Applicant, 3) any mitigating factors; and 4) any expressions of remorse. Rather, all of the factors raised by the Applicant were outweighed by the misrepresentation without any specific analysis. The application for leave was allowed.
Chuen v. Canada (MCI) 2024 FC 690
In Chuen v. Canada (MCI) Justice Heneghan analyzed the Applicant’s inadmissibility finding. The Applicant was a Chinese citizen, who applied for Canadian permanent residence in 2011. In 2019, the Applicant was issued a procedural fairness letter (PFL), with the Officer raising credibility and inadmissibility concerns. The Officer refused the Applicant’s application in 2021, finding him inadmissible to Canada pursuant to s.37(1)(b) of IRPA for participating the illegal cigarette trade and money laundering. The Applicant argued that the decision breached his right to procedural fairness, specifically due to the Officer relying on external documents that were not made available to him and on which he was not given an opportunity to respond to. The Applicant further went on to state that the Officer was required to advise him that his spouse’s conviction in Canada (regarding an offense tied to the tobacco trade) would be used against him.
On judicial review, Justice Heneghan found the Officer’s decision to be in breach of procedural fairness as the Applicant was not sufficiently informed of his case to meet. While the procedural fairness letter put to the Applicant advised him that the Officer had concerns with his ties to the tobacco trade, it lacked specificity. The letter also failed to provide the Applicant with an opportunity to respond to the allegations that his spouse’s conviction demonstrated his participation in organized crime. The application for leave was allowed.