Teklay v. Canada (MPSEP) 2024 FC 843
In Teklay v. Canada (MPSEP) Justice Turley examined the Applicants’ vacation decision. The Applicants alleged they were citizens of Eritrea who entered Canada on fraudulent Swedish passports in 2012. They successfully claimed asylum based on a well-founded fear of persecution by the Eritrean police. In November 2021, the Minister brought forward a vacation application, after new evidence revealed that the Applicants had concealed their true identities, and that they were actually German citizens. The Refugee Protection Division (RPD) granted the Minister’s application, finding that the Applicants had misrepresented and withheld material facts that called into question their identity and citizenship, as well as credibility when it came to persecution. The Applicants raised two issues with the Court: 1) that the RPD erred in failing to consider the procedural fairness of the Minister’s delay in filling the vacation application; and 2) that the RPD erred in finding that the Minister had put forward sufficient evidence of misrepresentation to vacate their refugee status.
Justice Turley found there was divergence in the Court’s jurisprudence when it came to the appropriate standard of review on the question of whether a delay in putting forward a vacation application constitutes as an abuse of process. Justice Turley reviewed the decision against the reasonableness standard (of whether the RPD reasonably applied the test for delay) and against the correctness standard (whether the RPD brought the administration of justice into disrepute by proceeding with a delayed vacation application). When it came to the Applicants’ first issue, Justice Turley did not need to address it given that the Applicants were precluded from raising the issue of delay on judicial review as it was not raised previously before the RPD. When it came to the second issue, Justice Turley also found that the RPD did not err and determined the decision to be reasonable. Justice Turley also clarified that the respondent on a RPD decision to vacate under s.109 of IRPA is the Minister of Public Safety and Emergency Preparedness. The application for judicial review was dismissed, and Justice Turley declined to certify the Applicants’ questions.
Xu v. Canada (MCI) 2024 FC 839
In Xu v. Canada (MCI) Justice Régimbald reviewed the Applicant’s refusal to have his permanent residence application re-opened. A non-adjudicative administrative decision maker has the discretion to reconsider an administrative decision and is not barred from doing so by the principle of functus officio. This discretion is exercised in two steps 1) the decision maker is to determine whether the matter should be open to redetermination; and 2) once re-opened, the decision maker considers the matter on its merits. There is no obligation to redetermine an administrative decision and the onus is on the Applicant to demonstrate that the circumstances warrant the decision to be reopened as it is in the “best interests of justice,” or due to “unusual circumstances.” The decision maker is to take into consideration all relevant facts. An assessment of reasonableness cannot be done in abstract and must looks at the decision underlying the reconsideration request.
Justice Régimbald found that the Officer erred in their assessment of whether to exercise their discretion because the Officer failed to consider all the relevant factors (including the fact that IRCC was aware that its attempts in reaching the Applicant’s counsel had failed.) The Respondent argued that the Applicant should have appealed the initial decision to close his permanent residence application rather than submit multiple requests for reconsideration. Justice Régimbald did not agree and found that “the applicant took the measures he thought necessary to avoid bringing this matter before the court. In considering the facts of this case, it would be inappropriate to penalize the Applicant for trying to reach a reasonable settlement before pursuing the option of bringing an application for judicial review. In fact, those multiple requests for reconsideration should have alerted the Respondent to the clear communication issue. The requests effectively gave the Respondent ample opportunity to meaningfully review the record and inevitably realize that the record had not been thoroughly assessed” (par.29). The application for leave was allowed.
Wiseman Hunt v. Canada (MCI) 2024 FC 837
In Wiseman Hunt v. Canada (MCI) Justice St-Louis assessed the Applicant’s cessation decision. The Applicant was a citizen from Saint Vincent and the Grenadines, who successfully claimed asylum in 2006, and secured permanent residence in 2007. In due course, the Applicant then obtained three passports from Saint Vincent and the Grenadines and travelled back numerous times. In 2022, the Minister brought forward a cessation decision and the Refugee Protection Division (RPD) granted it on reavailment grounds. Justice St-Louis found the decision to be reasonable. The Applicant had argued that her return to Saint Vincent and the Grenadines was not voluntary, and she was forced to return due the death of her parents and her aunt. Justice St-Louis however, looked at whether the Applicant “was constrained to travel, not whether she felt personally compelled to travel. Here, there was no evidence that [the applicant] did not travel to Saint Vincent and the Grenadines on her own volition or that she was constrained to do so.” (par 32). Justice St-Louis noted that the RPD’s finding that the return was voluntary was reasonable, as was the determination that the reason she indicated for returning to Saint Vincent and the Grenadines did not constitute exceptional circumstances. The application for leave was dismissed.
Welday v. Canada (MCI) 2024 FC 795
In Welday v. Canada (MCI) Justice Favel analyzed the Applicant’s inadmissibility finding. The Applicant was an Eritrean citizen who secured refugee status in Sudan. In 2007, the Applicant was sponsored as a refugee to come to Canada. He disclosed that had been involved with the Eritrean Liberation Front [ELF] as well as the Eritrean People’s Liberation Front [EPFL]. The Applicant’s application was refused, as he was found inadmissible under s.34 of IRPA due to his involvement with ELF. In 2012, with aid of a Sudanese individual, the applicant once more applied for permanent residence in Canada, as a spouse. On the application, the Applicant’s birth date was different, and his name was spelt differently. The Applicant also did not disclose any past refusals or past participation with ELF or EPFL. The application was approved, and the Applicant secured permanent residence in 2015. In 2021, Canada Border Services Agency (CBSA) started an investigation to determine if the 2012 and 2007 applications were submitted by the same person. The Applicant continued to maintain the view that he never intended to withhold or misrepresent information. The Applicant explained that the individual who aided him used the date of birth (which was incorrect) on his UNHCR card. As for his name, there were variances in how it was spelled when translated into English. By the time that he filed his application in 2012, he was already in possession of an Eritrean passport which contained information (name and date of birth) used in the 2012 application. The Applicant explained that he could not read the immigration forms and only replied on the questions that were asked of him by the individual who assisted him. CBSA issued a s.44 report, which was referred to the Immigration Division (ID), and the ID found the Applicant to be inadmissible due to misrepresentation. The Applicant attempted to appeal the decision before the Immigration Appeal Division (IAD), requesting Humanitarian and Compassionate (H&C) relief from the removal order, but it too was refused on the basis that H&C considerations could not overcome the seriousness of the misrepresentation.
On judicial review, Justice Favel found the IAD’s plausibility assessment to be lacking in justification and intelligibility. The IAD had acknowledged that the Applicant did not read or write English, and that the person who was aiding him with the forms did not advise him of the contents. Nevertheless, the IAD speculated that the Applicant had intentionally omitted or misrepresented information in the 2012 sponsorship application. The IAD exacerbated its error by trying to discern the Applicant’s intent at the time he completed his 2012 application, to determine the seriousness of the misrepresentation. Ultimately, Justice Favel found that the IAD’s decision lacking in reason, was unintelligible, unjustified, and failed to engage with conflicting evidence. The IAD had made unreasonable inferences which significantly shaped its view that the misrepresentation was “extremely serious.” The IAD then weighed this finding against H&C factors, leading to the conclusions that the H&C factors were insufficient to overcome the seriousness of the misrepresentation. The application for leave was allowed, and Justice Favel declined to certify the Applicant’s question as it would not be dispositive of an appeal.