Temelso v. Canada (MCI) 2024 FC 808
In Temelso v. Canada (MCI) Justice Southcott examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was citizen from Eritrea who alleged fear of harm or death from the Eritrean government as well as agents of the Eritrean state, and persons cooperating. The Applicant had invested millions into businesses and infrastructure across Eritrea. However, in 2011, he was told to leave the country after criticizing the President. In 2015, he covertly returned to Eritrea due to his significant investments. The Applicant was detained in an Eritrean prison but managed to escape and relocate to Uganda. Since then, the Applicant alleged that the Eritrean officials have bribed the Ugandan government to assist in persecuting him and his family. In 2016, the Applicant was investigated for several crimes, including human trafficking. After several more incidents, the Applicant came to Canada in 2018 and claimed asylum. The Refugee Protection Division (RPD) found the Applicant to be excluded under Article 1F(b) of the Convention and the RAD dismissed his appeal after determining that the had committed a serious non-political crime, specifically human trafficking, outside the country of refuge.
On judicial review, Justice Southcott found that the RAD erred in concluding that the Applicant had been charged with human trafficking in Uganda. This conclusion was based on an analysis of a letter from the Office of the Director of Public Prosecutions (DPP). However, the letter itself never stated that the Applicant had been charged with the offence. The RAD made an inference based on the fact that the DPP letter contained a court number, but Justice Southcott found this to be intelligible. Neither the decision nor the documentary evidence on record disclosed a basis to make a determination that the Applicant had been charged of the offence. Justice Southcott found that the conclusion that the Applicant had been charged was material to the RAD’s reasoning and led to the exclusion finding. As the decision lacked intelligible reasoning to support the determination, Justice Southcott found the decision to be unreasonable. The application for leave was allowed.
Josheph v. Canada (MCI) 2024 FC 799
In Josheph v. Canada (MCI) Justice Go assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant originally sought asylum in 2017 on the basis that Sri Lankan authorities were looking for him as they suspected him of having ties with the Liberation Tigers of Tamil Eelam (LTTE). The Refugee Protection Division (RPD) rejected his claim on credibility grounds, and the RAD dismissed his appeal. The Applicant submitted a PRRA in 2022, wherein he raised new risk related to his son’s anti-government activities in Sri Lanka. The Applicant’s son affirmed in an affidavit that he had been detained and targeted twice (2019 and 2022) for participating in anti-government protests. The Applicant’s family also alleged that the Sri Lankan authorities had continued to ask about the Applicant’s whereabouts, his activities with Tamils, and continued to harass the family.
The PRRA Officer rejected the application finding that the Applicant failed to bring forward new risk and did not provide sufficient evidence. In particular, the Officer noted that the Applicant’s son failed to provide a police report, or documents related to his detainment. However, the son had alleged that he was detained by the army, not the police, therefore the Officer’s comment was conflicting. In addition, the Officer failed to explain why the son’s affidavit was insufficient and did not provide independent reasons for needing corroborative evidence from the Applicant’s son about his arrest. The Officer made no determination, one way or another, as to whether the son’s affidavit was accepted. The son’s affidavit spoke of the army questioning him and the Applicant’s activities against the Sri Lankan government (which went beyond LTTE ties). Justice Go argued that PRRA Officers cannot disbelieve every piece of evidence just because a previous decision maker found the Applicant not credible. The PRRA Officer failed to explain how the RPD’s and RAD’s negative credibility findings affected the assessment of new evidence. The application for leave was allowed.
Nguyen v. Canada (MCI) 2024 FC 790
In Nguyen v. Canada (MCI) Justice Go reviewed the Applicant’s sponsorship decision. When applying for permanent residence, the applicant is required to declare certain family members (such a spouse or common-law partners). Should a family member not be declared, they are excluded from being sponsored under the family class or the Spouse or Common-Law Partner in Canada (SCLPC) class. The Applicant and her sponsor had lived in Canada since November 2019. The Applicant alleged that she and her sponsor broke up for a period of time (January-May 2021) but continued to reside together due to financial restraints. They reconciled and got married in February 2022. In May 2021, the sponsor had applied for permanent residence under the Temporary Resident to Permanent Resident (TR to PR) pathway and had marked the Applicant as his former common-law partner. Subsequently, after the sponsor secured permanent residence, he applied to sponsor the Applicant under the SCLPC class. The Officer refused the application on the basis that the sponsor failed to list the applicant in his TR to PR application, excluding the Applicant from being a member of the SCLPC class.
On judicial review, the key issue was whether the Officer reasonably determined that the Applicant and sponsor were cohabiting as conjugal partners during the “break-up period.” Justice Go found that Officer committed three reviewable errors. First, contrary to the Officer’s findings, neither the Applicant nor the Sponsor used the term “cohabit” in their submissions. This resulted in the finding that the Officer misconstrued evidence. Second, Justice Go clarified that living together and cohabitation are not the same. The Officer failed to do the proper assessment before determining that the Applicant and the sponsor were cohabitating. Third, the decision was intelligible. The Officer’s reasons lacked clarity on whether the Officer accepted that the Applicant and the sponsor had broken up between January and May 2021, or whether the Officer found that the break-up did not restart the time of cohabitation. These issues were central to the Applicant’s defence against her exclusion from the SCLPC class. The application for leave was allowed.
Malpica Marino v. Canada (MCI) 2024 FC 778
In Malpica Marino v. Canada (MCI) Justice Pentney explored the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant originally entered Canada with his family members (his common law partner, her mother-referred to as “A”- and her sisters), all who were granted refugee status. The Applicant, however, was ineligible to submit a refugee claim and therefore put forward a PRRA based on his family’s persecution in Colombia by the Clan del Golfo (the Clan). In 2019, “A” was solicited by the Clan to sell drugs from her clothing stall in Bogota. When “A” refused, the Clan threatened her and her family (including the Applicant). In 2021, the Clan threatened the Applicant with death at his place of employment. In 2022, the Clan attempted to kidnap the Applicant’s sister-in-law. In 2023, the Applicant and “A” were ambushed on the street, assaulted, and threatened at gunpoint. They reported the incident to the Attorney General’s Office and relocated to a different city. A couple of months later the Clan found them and threatened them with death for snitching. The Applicant and his family immediately moved to another city and left Colombia as soon as they were financially able to do so. The PRRA Officer had refused the application due to lack of forward-facing risk.
Justice Pentney found the decision to be unreasonable as the PRRA Officer failed to explain how the PRRA Officer weighed the evidence on two central points. First, the PRRA Officer appeared to accept that the Clan repeatedly warned “A” and the Applicant to not snitch and did not call into question the evidence that after they reported the Clan, they had faced new death threats precisely due to snitching. However, the PRRA Officer failed to explain how this factored into the final analysis of the Applicant’s forward-facing risk. Second, the PRRA Officer acknowledged that the Applicant had been threatened when he was with “A” and once when he was alone at his place of employment. This second incident seemed to be discounted altogether without explanation of why it was irrelevant. It was difficult to understand how the PRRA Officer factored the specific threat against the Applicant when he was alone into the forward-facing risk analysis. The application for leave was allowed.
Pakiyamuthu v. Canada (MCI) 2024 CanLII 46859
In Pakiyamuthu v. Canada (MCI) Justice Turley examined the Applicants’ stay of removal motion. The Applicants sought to stay their removal pending the determination of the judicial review of their negative Pre-Removal Risk Assessment (PRRA) decision. The Applicants were a Sri Lankan married couple who entered Canada in 2023. They were ineligible to make a refugee claim pursuant to s.101(1) (c.1) of IRPA as they had a pending asylum claim in the United States (US). In 2024 the Applicants submitted a PRRA, alleging that there was significant risk should they return to Sri Lanka based on their involvement in anti-government protests. As the Applicants were ineligible from making a refugee claim, this was their first risk assessment. A hearing was held on April 26th, 2024, and a PRRA Officer refused their application.
On judicial review, Justice Turley examined the tripartite test for a stay: 1) serious issues; 2) irreparable harm; and 3) balance of convenience. The Applicants argued that the PRRA Officer erred by finding that the Applicants would be of no interest to the Sri Lankan government as they were not “notable public figures.” There was evidence of system persecution of protestors, at all levels. Second, the PRRA Officer erred by finding that the Applicants would not be at risk as their refugee status would not be divulged by Canada. Justice Turley was satisfied that the Applicants have met the first tripartite test and established a serious issue. Nevertheless, a serious issue with respect to the PRRA decision does not necessarily establish irreparable harm. However, in general, there is a large overlap between the first and second prongs of the test. As Justice Grammond explained at paragraph 12 of Obafemi-Babatunde, 2023 FC 633, this is because “the irreparable harm alleged to flow from the applicant’s removal is often the same as the harm that the PRRA officer was tasked with assessing.” This was the case for the Applicants. Justice Turley was satisfied that the serious issues were sufficient to establish irreparable harm, and the fact that this was the Applicants’ first risk assessment weighted the balance of convenience in their favour. The stay motion was granted.