Flayyih v. Canada (MCI) 2024 FC 1000
In Flayyih v. Canada (MCI) Justice Southcott examined the Applicants’ Convention Refugee Abroad Class and Humanitarian-protected Person Aborad Class decision. The Applicants, which included the Principal Applicant (PA), her brother, and her six-year-old son, were all citizens of Iraq that were residing in Lebanon. The PA claimed that her husband was murdered in Iraq in 2017, after which she received a letter threatening her, her brother, her son, and another brother. The Applicants relocated to their family home in Iraq but continued to receive threatening phone calls. In 2019, the Applicants claimed that they received a second threatening letter, this one at their family home. After this, the Applicants fled Iraq and travelled to Lebanon, where they registered with the UNHCR. In September 2019, they applied for permanent residence in Canada through the sponsorship program. The PA and her brother were interviewed together, with the Officer refusing their application due to inconsistent statements in their interview. The Officer found that the Applicants failed to establish that they were members of any of the classes under consideration.
On judicial review, the determinative issue for Justice Southcott was the Officer’s plausibility analysis. The Officer found that the Applicants were not credible in advancing their allegation that they had been threatened as a result of the husband’s and brother’s employment with a foreign company. While there were other credibility grounds raised, the Officer’s decision was significantly influenced by the inability of the PA and her brother to identify the company or its national origin. The Officer found this to be implausible. Justice Southcott found it was not the clearest of cases where it was outside the realm of what could have been reasonably accepted, given the circumstances described by the Applicants (the PA and her brother were both teenagers then and would not know the identity of the employer or the origin). In addition, the country conditions did not support the Officer’s analysis, with evidence showing that Iraqis working for international organizations faced threats and took measures to decrease risks, including concealing employment from their families. Justice Southcott ultimately found the Officer’s decision to be unreasonable. The application for leave was allowed.
Saleh v. Canada (MCI) 2024 FC 988
In Saleh v. Canada (MCI) Justice Gleeson reviewed the Applicant’s inadmissibility finding. The Applicant was a Yemeni citizen who was found to be inadmissible under s. 34(1)(f) of IRPA for being a member of an organization engaged in acts of subversion by force (s.34(1)(b)) and terrorism (S. 34(1)(c)). The finding was based on his membership with the Al Hirak Lil Slemi Lel Janoubi movement (Al Hirak or Southern Movement) from 2009 to 2014. On judicial review, Justice Gleeson referred to Aqeel, wherein the Court had considered a s.34(1)(f) determination in connection with the same organization. In Aqeel, the evidence before the Officer, as well as the Officer’s organization analysis, were very similar, if not identical, to the present case. Justice Gleeson came to the same conclusion as that reached in Aqeel, that the Officer’s finding that the Southern Movement is an “organization” for the purposes of s.34(1) of IRPA was not justified. The application for leave was allowed.
Kayali v. Canada (MCI) 2024 FC 909
In Kayali v. Canada (MCI) Justice Grammond assessed the Applicants’ Convention Refugee Abroad Class and Country of Asylum Class decision. The Applicants were citizens of Syria, and siblings (brothers). The Applicants fled Syria, coming to Lebanon, and then proceeding to apply for Canadian permanent residence under the Convention Refugee Abroad Class and Country of Asylum Class. Their applications were refused on credibility grounds. The Officer’s negative credibility finding was based on specific contradictions or implausibility, which Justice Grammond found unreasonable. First, the Officer found one of the brother’s denial of having seen members of terrorist groups was conflicting with the evidence that terrorist groups had been present in Aleppo throughout the relevant period. However, this finding was actually based on a distortion of what the brother had said. The second issue was in connection with the fact that one of the brothers and his family had moved between Aleppo and Idlib in 2015 and remained in Syria until 2021 (leaving shortly after one of the other brothers was released from the army). The Officer was concerned that: 1) the one brother and his family could have left Syria earlier; and 2) waiting for the other brother to be released was not a reasonable for remaining in Syria. Justice Grammond found the above problematic as the finding failed to take into account the Applicants’ explanations for their actions. Moreover, the Officer’s reliance on the fact that the Applicants were unable to depart earlier was also problematic. The application for leave was allowed.
Fontaine v. Canada (MCI) 2024 FC 894
In Fontaine v. Canada (MCI) Justice Pallotta assessed the Applicant’s Refugee Protection Division (RPD) decision. The Applicant was a Haitian citizen who sought asylum in Canada, after entering from the United States (US), in 2020. The RPD had rejected his claim. The Applicant contested the decision, arguing that the RPD failed to conduct a s.96 assessment under IRPA. The Applicant argued that since arriving in Canada, his political opinions have matured. The Applicant updated his Basis of Claim Form (BOC) narrative prior to his hearing to assert a sur place claim. In addition, at the time of the hearing, the Applicant provided extensive testimony on his risk of persecution in Haiti as a result of his political opinion. The Applicant alleged that the RPD ignored entirely the political aspect of his high-risk profile.
On judicial review, Justice Pallotta rejected the Respondent’s argument that the RPD was not required to assess political risk as it was not central to the Applicant’s claim. At the RPD hearing, the Applicant’s counsel clearly stated that the Applicant was asserting both a s.96 (risk of persecution) and s.97(risk of harm) claim. The RPD’s decision: a) failed to address the Applicant’s testimony on political risk; b) failed to engage with the National Documentation Package (NDP) evidence relevant to Haiti and political risk; or c) explain why the Applicant did not meet his burden. The decision’s lack of reasons made it impossible for Justice Pallotta to understand why the claim was rejected under s.96. Furthermore, the Applicant’s credibility (when it came to his s.97 claim) would have been definitive of his claim of persecution due to political opinion on s.96. The application for leave was allowed.
Zarate Lopez v. Canada (MCI) 2024 FC 879
In Zarate Lopez v. Canada (MCI) Justice Azmudeh reviewed the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants were Mexican citizens who sought asylum in Canada based on fear of risk of harm from the Jalisco New Generation Cartel (CJNG). The Refugee Protection Division (RPD) rejected the Applicants’ claim on credibility grounds, and the RAD dismissed their appeal. On judicial review, Justice Azmudeh found that the RAD had misapprehended and misconstrued material evidence, resulting in a break in the chain of reasoning between the evidence and the decision. Primarily, the RAD failed to independently engage with the larger picture: the CJNG’s direct interest in the Applicants (which was the central point of the Applicants’ claim). The RAD had accepted the Applicants’ claim that they were kidnapped by the CJNG, but failed to offer analysis of how this was relevant to the CJNG’s interest in the Applicants. Moreover, the basis for certain credibility findings when it came to forward facing risk, was unclear. Justice Azmudeh found that the RAD made an adverse credibility finding solely on the lack of corroborative evidence; and the RAD misapprehended some evidence in connection with the CJNG’s indirect interest in the Applicants. The RAD seemed to be fixated on scrutinizing individual pieces of evidence without stepping back to consider the broader context or narrative. Justice Azmudeh found that this made the decision unreasonable. The application for leave was allowed.