Odunoye v. Canada (MCI) 2024 FC 771

In Odunoye v. Canada (MCI) Justice Pentney examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen from Nigeria and former art teacher in charge of a savings cooperative established to benefit school employees. Due to an internal conflict within the cooperative, the Applicant alleged that someone had spread a rumour that he was having an affair. When his wife heard the rumour, in retaliation, she had an affair with a man identified as Y (a known gang member and political thug). In January 2014, the Applicant was beaten and injured. The Applicant decided to relocate to the United States (US), hoping that the conflict with the cooperative and his wife would come to pass. However, the Applicant ended up divorcing his wife and remaining in the US. In 2017, the Applicant’s ex-wife informed the Applicant that Y was making death threats against him and told him not to return to Nigeria. Through a friend, the Applicant also learned that the former executive of the cooperative had accused him and others of embezzlement. In 2019, the Applicant came to Canada and sought asylum. Both the Refugee Protection Division (RPD) and the RAD dismissed his claim due to a viable internal flight alternative (IFA).

On judicial review, on the Applicant’s key argument before the RAD, which he restated on judicial review, was that the law’s approach to IFA should be re-examined in light of the prevalence of social media. The Applicant stated that he had received messages from Y through Facebook, demonstrating that the agent of persecution would have means of locating him in Nigeria. The Applicant argued that the RAD discounted the importance of the fact that Y had contacted him through social media. The Applicant stated that he would sell his art through Facebook in Nigeria, and as such, had to include his home address so that customer could come and view his art in person. The Applicant argued that the RAD erred by concluding that it was reasonable to expect a person to keep such information private to avoid threats from the agent of persecution. The Applicant also argued that the RAD engaged in unreasonable speculation by stating that the Applicant could find other ways to sell his art that would not reveal his location.

Justice Pentney was not persuaded by the Applicant’s social media arguments for several reasons. First, the Applicant’s evidence about how he planned to sell his art did not prevent the RAD from observing that the Applicant could be expected to take reasonable steps to hide his location from the agents of persecution. Second, it was not clear to what extent the Applicant’s art was his primary source of income, nor was it clear that his reputation as an artist was such that selling under his own name was essential to the business. Justice Pentney found that the key point here was that the message from Y to the Applicant was not threatening (it was a comment on his appearance) and there was no evidence that the Applicant had taken any action to hide his identity. The single message did not demonstrate that that the agent of persecution had used any elaborate or sophisticated means of locating the Applicant. In this regard, the message did not demonstrate that the agent of persecution had the means to track the Applicant using social media or other web capabilities.  The RAD’s determination that the Applicant’s social media presence would not necessarily enable the agents of persecution to track the Applicant in Nigeria could not be disturbed on review.

The Applicant had also posed a question for certification “In terms of both prongs of the IFA test, is it reasonable to expect refugee claimants to limit their use of internet and social media in an attempt to avoid agents of persecution and ensure the viability of an IFA location?” Justice Pentney declined to certify as it was not decisive to the matter at hand. However, Justice Pentney did acknowledge that “the prevalence of social media, and the additional tools it may provide to agents of persecution to hunt down their targets, raises an important question. Equally, the extent to which those fleeing persecution may need to restrict their social media presence to escape detection is also an important question” (at par. 23). Nevertheless, these were vey fact-based inquiries. While the Applicant submitted that requiring him to restrict his social media presence was unreasonable, his evidence did not satisfy the RAD, and Justice Pentney found the RAD’s conclusion to be reasonable.  The application for leave was dismissed.


Baquero Alvarez v. Canada (MCI) 2024 FC 770

In Baquero Alvarez v. Canada (MCI) Justice Régimbald reviewed the Applicant’s cessation decision. The Applicant was a citizen of Columbia who successfully claimed asylum in 2008 and secured permanent residence in 2010. In 2011, the Applicant secured a new Colombian passport and used it to travel back to Columbia from September 2011 to July 2015. The Applicant conceded that he returned back for this extensive period of time due to marital problems, and to look after his aging parents. While in Colombia, the Applicant stayed at his family’s home and assisted his parents by running errands or looking after their medical needs. The Applicant attested that he took precautionary measures such as changing phone numbers, altering his daily routine, avoiding the family farm, and avoiding travel to the north of Columbia (the origin of his problems). In 2020, the Minister brought a cessation application against the Applicant on the basis of reavailment, and the Refugee Protection Division (RPD) granted the application in 2023.

On judicial review, the determinative issue was the second part of the cessation test: the Applicant’s intention. The Applicant argued that the RPD had erred by failing to assess his subjective knowledge that returning to Colombia would put his status in jeopardy. The Applicant also argued that the RPD failed to properly assess his profile, in particular the psychological evidence regarding his mental health. Justice Régimbald found that at the RPD, the Applicant did not raise any issues regarding subjective knowledge or lack of it. It is the Applicant’s duty to raise such evidence to rebut the presumption of reavailment. Justice Régimbald also found that the RPD did not err by not directly responding to the Applicant’s argument on mental health (as the evidence was from 2020 and was not related to the Applicant’s decision to return in 2011). As the issues of subjective knowledge and mental health were not central to this case, Justice Régimbald was satisfied that the RPD did not commit a reviewable error by not including these arguments in the reavailment analysis. The application for leave was dismissed.


Lugo Cordoba v. Canada (MCI) 2024 CanLII 44890

In Lugo Cordoba v. Canada (MCI) Justice McDonald assessed the Applicant’s motion for a stay of removal. The Applicant submitted a stay of removal pending the determination of the leave and judicial review of his negative Refugee Protection Division (RPD) decision. The Applicant’s claim was based on his fear of returning to Columbia due it being an unsafe environment for LGBTQ individuals. The RPD had accepted that the Applicant was a bisexual man and was assaulted as a result of a previous relationship, however, refused the claim due to lack of ongoing risk and a viable internal flight alternative (IFA) in Barranquilla. The Applicant argued that the RPD was selective in its consideration of country evidence when assessing risk in Barranquilla. Specifically, the Applicant pointed to information in the National Documentation Packages (NDP) that Barranquilla was rated as one of the top cities with LGBTQ murder rates in Colombia. Considering the low threshold to be met, Justice McDonald was satisfied that the Applicant had established a serious issue with the decision.

Justice McDonald found that there was an overlap between serious issue considerations and irreparable harm considerations. If the RPD failed to properly consider the Applicant’s risk (due to its treatment of the country conditions evidence) then this factored into the irreparable harm branch of the test. The RPD was the only “risk assessment” that the applicant had, and if it was flawed, then the Applicant faced a serious likelihood that there would be jeopardy to his life, security, or safety. Justice McDonald also noted that the unique circumstances of this case, the Applicant’s separation from his 4-year-old daughter, amounted to irreparable harm as the child’s mother (who was accepted as a refugee from Colombia) could not travel to Colombia with the child. These circumstances were beyond the normal consequences of removal, and the balance of convenience favoured the Applicant. The stay of removal was granted until the Court made a determination on the pending application for leave and judicial review.


Kosgey v. Canada (MPSEP) 2024 CanLII 44287

In Kosgey v. Canada (MPSEP) Justice Zinn considered the Applicant’s stay of removal request. The Applicant was a citizen of Kenya who had unsuccessfully claimed asylum on the basis of his sexual orientation as a gay man. The Refugee Protection Division (RPD) dismissed his claim on credibility grounds and the Applicant’s Refugee Appeal Division (RAD) appeal was never perfected. The Applicant also made an unsuccessful Pre-Removal Risk Assessment Application (PRRA). The Applicant failed to appear for his removal interview in 2018 and was only discovered in 2024 after his arrest during a traffic investigation. The Applicant proceeded to make a deferral request so that he could submit a new PRRA on the grounds that new evidence of the Applicant’s sexual orientation (his relationship with a man from Kenya who was accepted as a refugee by the RPD on the basis he was at risk in Kenya). The Applicant’s deferral request was refused, prompting the Applicant to bring forward this stay of removal.

Justice Zinn found that the PRRA office appeared to be of the opinion that the risk raised must be “new” risk. However, there is no requirement that the risk must be new. The Federal Court’s jurisprudence confirmed that a deferral of removal will be required where there is “new evidence of pre-existing risk.” (at par. 16).  Justice Zinn was satisfied that that both the serious issues and irreparable harm components of the tri-part test for a stay had been established. The Respondent argued that they stay should not be granted as the Applicant did not come forward with clean hands. While Justice Zinn was greatly concerned with the Applicant’s conduct, “[i]t is difficult to say that the Minister’s right to a speedy removal is entitled to greater weight than a proper assessment of risk, even one previously considered, where there is evidence before the Court that strongly suggests the applicant may succeed in establishing the risk. This is even where the conduct of the applicant has not been exemplary” (at par. 19). Justice Zinn ordered that the Applicant’s removal be stayed until the earlier of 1) a final determination on the underlying application for judicial review, or 2) a decision on the PRRA redetermination. The order was conditional on the Applicant making an application for a PRRA redetermination within 21 days of this order.