Vadiati v. Canada (MCI) 2024 FC 1056
In Vadiati v. Canada (MCI) Justice Battista examined the Applicant’s writ of mandamus application. The Applicant was seeking IRCC to issue a decision on his permanent residence application which had been pending for four years. The Applicant had fled Iran, fearing persecution due to his political and religious beliefs, and was granted refugee protection in April 2019. One month later, the Applicant submitted an application for permanent residence. In the application, the Applicant noted that he was part of the Iranian Armed Forces, Sepah, as a conscript and then soldier, between July 1996 and July 1998. The Applicant also submitted a “Details of Military Service” form, which was received by IRCC in March 2020. The Applicant commenced a mandamus in July 2023, after multiple attempts of inquiring about the status of his application. In May 2024, the Applicant received a procedural fairness letter (PFL), expressing IRCC’s concerns that the Applicant may be inadmissible under s.34(1)(f) of IRPA. The security concerns were due to the information the Applicant had submitted in March 2020 regrading his involvement in the Islamic Revolutionary Guard Corps (IRGC).
On judicial review, the parties disagreed on whether there was an unreasonable delay in processing time. In Justice Battista’s view, there were two central considerations when it came to assessing the reasonableness of the delay. The first consideration was the impact of the procedural fairness letter and why it had arrived at such a late stage when the information which the letter was based on had been with the Respondent since the application was filed. While it was true that the IRGC was recently added to the list of official terrorist organization, the legal status of the organization did not change the nature of the activities in Sepah, nor did it change the nature of the Applicant’s involvement with the IRGC. The Respondent had the information since 2020. For this reason, Justice Battista found that the recent issuance of the PFL should not impact the relief requested.
The second consideration when it came to the delay was the justification brought forward by the Respondent. The processing time, when it came to the Applicant’s application, had been double the average time for such an application. The Respondent relied on the ongoing security concerns and investigation as a justification for the delay. However, the potential grounds for inadmissibility under s.34(1)(f) of IRPA applied to both permanent residents and foreign nationals. Therefore, the granting of permanent residence to the Applicant would not necessarily have had to halt or end the investigation. If the investigation resulted in an inadmissibility finding under s.34(1)(f), the Respondent could still take the step of stripping the Applicant of his permanent resident status. Justice Battista found the security concern to not be a satisfactory justification for the delay. Lastly, Justice Battista examined the balance of convenience and found that it favoured the Applicant. The impact of the delay included the Applicant being away from his wife and daughter for over 4 years, and the mental health issues his wife and daughter were suffering due to the continued separation and insecurity of the situation. Justice Battista found that these circumstances constituted significant prejudice to the Applicant. The writ of mandamus was granted, and Justice Battista ordered that a decision be rendered on the application within 90 days.
Osipova v. Canada (MCI) 2024 FC 1055
In Osipova v. Canada (MCI) Justice Aylen reviewed the Applicant’s Humanitarian and Compassionate (H&C) application decision. The Applicant was an elderly (73 years old) citizen from Russia. While the Applicant had raised several grounds for review, Justice Aylen found that the Officer’s best interests of the child (BIOC) analysis was sufficiently flawed to render the decision unreasonable. The Applicant had been residing with her daughter and son-in-law in Canada as a visitor since 2017. When the Applicant submitted her H&C application, her daughter was pregnant. The Applicant’s granddaughter was born in February 2022 and the Applicant updated her application with evidence that she was involved in the care and upbringing of her infant granddaughter. In addition, the Applicant stated that she would be taking on an increasingly important role of caring for her granddaughter when her daughter’s maternity leave was over. Justice Aylen found that the Officer failed to identify what the child’s best interest were and how the child would be affected by the Applicant’s departure. Moreover, the Officer placed undue emphasis on the degree that the child depended on the Applicant. The fact that the Applicant was not the child’s primary caretaker was not determinative. It was not a question of whether the child would survive without the Applicant’s presence, but rather, how the child would be emotionally and practically impacted by the Applicant’s departure. Justice Aylen concluded that as the Officer’s BIOC analysis was unreasonable, rendering the decision as a whole unreasonable. The application for leave was granted, and the Applicant was afforded the opportunity to make additional submissions.
Cardenas v. Canada (MCI) 2024 FC 1051
In Cardenas v. Canada (MCI) Justice Aylen assessed Applicant’s Humanitarian and Compassionate (H&C) application decision. The Applicant was a Colombian citizen, who was paraplegic and confined to a wheelchair as a result of a spinal injury in 2006 (the Applicant was shot). Both his parents, and siblings, now resided in Canada, and the Applicant remained in Colombia with only his 90-year-old grandfather remaining in Bogota. The Applicant did not have the assistance he needed to support himself in his daily activities and was reliant on his family in Canada for financial support as he was unable to work. The Applicant experienced many difficulties in Colombia. The Applicant’s family have been attempting to bring him to Canada for the past 14 years. The Applicant’s application for permanent residence outside of Canada on H&C ground was refused as the Officer determined that the Applicant neither met the definition of a family member, nor demonstrated that an exemption to the requirements of IRPA should be granted for H&C grounds.
On judicial review, Justice Aylen found that the Office failed to consider the Applicant’s submissions regarding certain core elements. In particular, the Officer 1) misapprehended evidence with respect to the Applicant’s support system in Colombia; 2) failed to consider contradictory evidence when it came to the particular care the Applicant required; and 3) drew irrational inference that the Applicant currently had a support system based on the Applicant’s family’s choice to leave Colombia in 2008. While there were other errors, Justice Aylen found that any one of the above errors, taken independently, would have rendered the decision unreasonable. The application for leave was granted, and the Applicant was afforded the opportunity to make additional submissions.
Portillo de Jurado v. Canada (MCI) 2024 FC 1108
In Portillo de Jurado v. Canada (MCI) Justice Azmudeh assessed the Applicants’ Refugee Protection Division (RPD) decision. The Applicants were citizens of El Salvador who sought asylum in Canada based on fear of harm form the MS-13 gang under s.97(1) of IRPA. The RPD rejected their claims on credibility grounds. The RPD broke down their decision into two categories: subjective fear and generalized credibility. Justice Azmudeh organized the Court’s reasons in the same fashion. When it came to subjective fear, the RPD argued that the Applicants’ return to El Salvador from the US in 2016 amounted to lack of subjective fear. A large part of the RPD’s credibility finding was due to the Member’s perception that the Applicants had omitted mention of their trip to the US. Justice Azmudeh found two issues with this finding. First, the Applicants had fully disclosed this trip at the first opportunity when arriving in Canada. Second, while subjective fear is an essential element in s.96 claims, a nexus was not present in this case as they advanced their claim under s.97(1) of the IRPA and not s.96. The RPD did not explain why it applied a legal concept that was only essential in claims under s.96 of the IRPA, detracting from the transparency and intelligibility of the decision.
As for general credibility, while the RPD Member found the Applicant’s claim well documented, the “cumulative effect if negative credibility inferences” resulted in the claim that “generally lacked credibility.” The Applicants’ failure to claim in the US, and their return to El Salvador in 2016, formed a major part of the Member’s credibility finding. Justice Azmudeh found that the Member’s analysis missed the crux of the Applicants’ claim: the problems with the M-13 began in 2015 but increased in intensity in 2017 and 2018. Citing Ibrahimov, 2003 FC 1185, Justice Azmudeh noted that where fear of persecution is based on cumulative events, the RPD will err by faulting the Applicants for not leaving at the first sign of trouble. Justice Azmudeh found that the Member’s approach heavily fixated on scrutinizing an individual piece of evidence, without stepping back to look at the overall narrative. Justice Azmudeh concluded by finding that the RPD made a global credibility finding that was primarily based on conflated legal tests and illusionary omissions, making the decision unreasonable. The application for leave was granted.
Chen v. Canada (MCI) 2024 FC 1099
In Chen v. Canada (MCI) Justice Aylen examined the Applicant’s cessation decision. The Applicant successfully claimed asylum and was granted refugee protection in 2003 as she was found to be at risk of religious persecution in China. The Applicant proceeded to travel back to China on a Chinese passport a total of seven times between 2006 and 2018. In 2019, the Minister brought forward a cessation application. The Refugee Protection Division (RPD) granted the Minister’s application, but the Applicant successfully appealed the matter before the Federal Court, and it was sent back for redetermination. In 2023, the RPD once more granted the Minister’s cessation application on the basis of reavailment. The Applicant did not contest that she renewed her Chinese passport and returned to China voluntarily, however, she stressed that she did not intend by these acts to reavail herself of protection of the Chinese authorities or to waive her protection and status in Canada. The Applicant did not dispute the presumption of reavailment but asserted that the RPD had erred in determining that she failed to rebut that presumption.
On judicial review, Justice Aylen found two errors with the RPD’s reasons. First, the RPD had applied the wrong legal test. The RPD wasn’t to consider what the Applicant should have known, but rather whether she subjectively intended to depend on China’s protection (which involved considering the consequences of reavailment). However, the RPD concluded that the Applicant “knew or should have known” the immigration consequences of returning to China. Second, the RPD’s reasoning referenced to the answers the Applicant provided to Canada Border Services Agency (CBSA) in 2014, when an Officer spoke to the Applicant about the dangers of persecution in China and asked her whether she still feared persecution. The Member had inferred that as a result of this conversation, the Applicant knew or ought to have known that she could lose her status as a result of her trips to China. However, this inference was flawed as it conflated the issue of whether the Applicant knew that she should not return to China due to risk of persecution with the Applicant’s understanding of the immigration consequences. The application for leave was granted.
Rocha Badillo v. Canada (MCI) 2024 FC 1092
In Rocha Badillo v. Canada (MCI) Justice Ahmed reviewed the Applicants’ Refugee Protection Division (RPD) decision. The Principal Applicant (PA), Associate Applicant (AP) and the PA’s daughter (Minor Applicant) were Colombian citizens. They feared persecution from individuals who opposed the PA’s mother, who worked as a government lawyer and was persecuting corruption cases in Colombia. The RPD refused their claim due to a viable internal flight alternative (IFA). On judicial review, Justice Ahmed found that the RPD failed to address risk when it came to the Minor Applicant, a key issue of the Applicants’ risk profile. This alone was sufficient to render the decision unreasonable. In addition, the RPD’s reasons were insensitive to the consequences the Minor Applicant would face upon rejection of her and her family’s refugee claim. The consequences of the RPD’s decision were neither considered nor justified given the facts presented in the Basis of Claim narrative.
Given that the Applicant had been removed from Canada in 2023, the question at hand remained on how to remedy the situation. The Respondent had argued that the Applicants left Canada voluntarily. Justice Ahmed disagreed, referring to paragraph 22 of Jawad, 2021 FC 1262: “departing Canada after the CBSA advised that they had to leave the country and that they faced warrants for their arrest can hardly be considered a voluntary decision. They departed under legal compulsion by operation of the IRPA, backed by the power of the state.” The fact that the Applicants did not apply for a Stay of removal was not a determinative factor. When it came to the substantive remedies, Justice Ahmed 1) granted the Applicant’s judicial review; 2) set aside the decision of the RPD; and 3) ordered a different decision maker to redetermine the matter. Given the circumstances, Justice Ahmed saw it was appropriate to refer the matter back to the RPD with the instructions that: 1) the Applicants were given an opportunity to provided updated evidence and submissions with 30 days of the decision; 2) the RPD was to redetermine the matter within 60 days of the decision. Justice Ahmed did not grant the Applicants’ request to order their return to Canada or to be issued travel documents.
Johnfiah v. Canada (MCI) 2024 FC 1091
In Johnfiah v. Canada (MCI) Justice Sadrehashemi assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) Application. The Applicant’s PRRA was based on his fear of persecution as a bisexual man in Ghana. The Officer accepted the evidence that established “adverse treatment of the LGBT community in Ghana including discrimination, abuse and violence.” As part of the application, the Applicant submitted an extensive affidavit that provided details about growing up in Ghana, the emergence of his sexual identity as a bisexual, his reasons for not disclosing his sexual orientation to his family or friends in Ghana or Canada, and the nature of his sexual relationships in Ghana and Canada. Nevertheless, the Officer found this evidence to be insufficient to establish his bisexual identity and rejected the Applicant’s claim. On judicial review, Justice Sadrehashemi found the Officer to have made a veiled negative credibility finding on the determinative issue of the claim and failed to consider the need of an oral hearing.
The Officer did not make any outright negative credibility findings and rejected the claim due to insufficiency of evidence. However, the basis on which the Officer asserted they were rejecting the claim was not determinative of the issue. Justice Sadrehashemi argued that the “exercise of determining whether an insufficiency of evidence finding is effectively a negative credibility finding is fact specific” (at par. 10), and cited the approach suggested by Justice Norris in Ahmed, 2018 FC 1207: “if the factual propositions the evidence is tendered to establish, assuming them to be true, would likely justify granting the application and, despite this, the application was rejected, this suggests the decision maker had doubts about the veracity of the evidence. (par. 31)” Utilizing this approach in the present case, Justice Sadrehashemi found that the Officer clearly made a negative credibility finding. The Officer failed to explain why corroborative evidence was required, relied on stereotypes, and ignored explanations provided by the Applicant in his affidavit. The application for leave was granted.
Ali v. Canada (MPSEP) 2024 FC 1085
In Ali v. Canada (MPSEP) Justice Battista engaged with the Applicant’s vacation decision. The Applicant was found to be a convention refugee in 2017. The decision was made after an oral hearing, with consideration of oral and documentary evidence confirming the Applicant’s identity as a Somalian citizen. In 2020, the Minister put forward an application to vacate his refugee status. The Application was based on the Minister’s belief that the Applicant was actually a Kenyan citizen who allegedly entered Canada as a student in December 2016. The Refugee Protection Division (RPD) allowed the Minister’s application in February 2023. The decision was based on perceived similarities between the Applicant and the Kenyan student after a visual comparison of photographs. On judicial review, the Applicant argued that the RPD breached procedural fairness by denying his request to determine the methods used to obtain and analyze the photographs, and thereby to test the reliability of the Minister’s evidence. The RPD found it sufficient for the Minister’s counsel to provide assurance that no facial recognition software was used.
Considering the contextual factors identified by the Supreme Court in Baker, 1999 CanLII 699, when it came to determining the content for procedural fairness, Justice Battista found that vacation proceedings required a high level of procedural fairness. “This includes a full opportunity for refugees to challenge the evidence supporting the request to vacate status, which in turn entails the provision of information to refugees regarding the source and methodology used to obtain the evidence being used against them” (at par. 27). Justice Battista found that the RPD breached the Applicant’s right to procedural fairness when it denied the request for further information about the source and methodology used by the Minister when it came to obtaining and comparing the photographs, resulting in blocking the Applicant’s attempts to test the reliability of the evidence being used against him. Justice Battista argued that the RPD was wrong when it stated that “the method of gathering evidence is not relevant to the case.” An assessment of the probative value of the evidence first requires a determination of the reliability of the evidence, and determining the reliability of the evidence used against him was what the Applicant was trying to achieve.
Justice Battista also found that the RPD breached procedural fairness by accepting, without further verification, statements by the Minister’s counsel that no facial recognition technology had been used, and that the discovered photographs were compared manually. Minister’s counsel was counsel for an adversary who provided unsworn evidence on the origin of the photographs, which Justice Battista assumed was hearsay. While the rules regarding evidence in RPD proceedings are laxed, “the relaxation of evidentiary rules by the RPD cannot be uniform in all matters; they must respond to the requirements of procedural fairness, and reflect the nature of the particular proceedings, issues involved, and interests at stake. In this case, given the adversarial context, the highly contested and controversial nature of the evidence in question, and potential for severe consequences resulting from the proceedings, the rules of procedural fairness required more than unsworn, general statements by counsel to an adversary in the proceedings regarding the provenance of evidence” (at par. 31). In the end, Justice Battista found it was unfair for the RPD to consider the photographic evidence, which was sufficient to revoke the Applicant’s status, and at the same time allow that evidence to be shielded from examination and reliability.
Justice Battista ultimately found the decision to not only be procedurally unfair but also unreasonable. The RPD also ignored and unjustly dismissed the following evidence before the Tribunal: evidence submitted in the Applicant’s refugee determination hearing; evidence of dissimilarities in the photographs; and evidence from the Kenyan government that the Applicant was not a citizen of Kenya. Justice Battista concluded that the RPD relied primarily on visual acuity to override the decision of another RPD panel, which in turn revoked the Applicant’s refugee status and exposed the Applicant to the loss of permanent resident status, inadmissibility, and removal under IRPA. The RPD breached the Applicant’s right to procedural fairness by curtailing his ability to test the evidence against him. The application for leave was granted.