Henry-Okoisama v. Canada (MCI) 2024 FC1160
In Henry-Okoisama v. Canada (MCI) Justice Ahmed reviewed the Applicants’ Humanitarian and Compassionate (H&C) decision. The Principal Applicant (PA) and her three children were Nigerian citizens. The Applicant came to Canada in 2018, unsuccessfully claiming asylum. Subsequently, the Applicants submitted an H&C application which was refused in 2022. On judicial review, Justice Ahmed found the Officer’s best interests of the child (BIOC) assessment was flawed. The Officer’s claim that the minor applicants could “reasonably accompany” the PA to Nigeria was “an unconvincing disguise” for finding that the children could adapt to life in Nigeria. Justice Ahmed argued that “This ‘adaptability’ approach is unsound. In my colleague Justice Norris’s words, ‘[t]he life can be hard but children are resilient approach taken by the officer is the antithesis of the compassion that is meant to be shown under section 25(1) of the IRPA’” (at par. 20). In addition, the Officer further erred by only assessing the minor applicants’ basic interest, not their best interest, and misapplied the family reunification principles set forth in s.3(1)(d) of IRPA.
While the errors with the BIOC assessment were sufficient to render the decision unreasonable, there were additional aspects that Justice Ahmed found unreasonable. The first being the Officer’s failure to acknowledge the PA’s role as an essential worker during the pandemic, finding the Applicants’ establishment as “typical.” The Federal Court has recently found this approach to establishment analysis to be an error (Cheng, 2024 FC 560). Furthermore, the Officer’s finding that the PA was educated and resourceful was unreasonably used against the Applicant. Both counsels made submission on whether the Applicants had to prove their circumstances were “exceptional” to justify an H&C exemption. Justice Ahmed found that while there were two cases that equated the term “exemption” with “exceptional”, there was a long list of caselaw that interpreted “exemption” as synonymous with “exception” not “exceptional.” Justice Ahmed noted that “Parliament did not intend that applicants had to clear an “exceptionally” high bridge to obtain H&C relief from the regular requirements of entry or admissibility to Canada. Requiring this emasculates the IRPA remedy, unduly setting it apart from its dual descriptors of “humanitarian and compassionate,” and in so doing, removing any realistic possibility of the provision’s words and Kanthasamy’s promise that officers have the discretion to place a bridge above applicants’ troubled waters” (par. 37). Justice Ahmed cited multiple cases that support the view that an individual’s circumstances do not need to be exceptional to warrant H&C relief:
A “humanitarian” approach calls for an approach that recognizes a person’s humanity. Requiring a person demonstrate that their circumstances are “exceptional” does not accord with this approach. The implication of this position is that the failure to meet this requirement is a designation of one’s circumstances as not exceptional—as unexceptional. Aside from the subjectivity bound up in the word “exceptional,” no one—including an immigration officer, this Court, or others—can meaningfully commit to another’s humanity and act with compassion when they view others’ circumstances through the lens of “exceptional” or “unexceptional,” “extraordinary” or “expected,” “remarkable” or “banal”. This approach amounts to evaluating an H&C application through a test that is disjunctive, analytically unsound, and antithetical to the very words of the exemption prescribed by section 25(1) of the statute.
Justice Ahmed concluded that the Officer erred by expecting a standard of “exceptionality” from the Applicants. The application for leave was allowed.
Hamzi v. Canada (MCI) 2024 FC 1159
In Hamzi v. Canada (MCI) Justice Grant examined the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants were Lebanese citizens (mother and daughter) and Shia Muslims. An influential Sheikh from their village pressured the Principal Applicant’s (PA) father to allow him to marry the Principal Applicant (daughter). The PA did not wish to marry the Sheikh and she and her mother left Lebanon in 2021. The PA learned from her brother that the Sheikh was angry with her departure and advised the PA’s father that if the PA did not wish to marry him then she should remain in Canada. Shortly after their departure, the PA’s father died, and the Sheikh continued to ask the PA’s family when the PA would be returning to Lebanon. The Refugee Protection Division (RPD) found that while the Applicants were credible, they failed to establish that they would be targeted by the Sheikh. The RAD sided with the RPD and rejected the appeal.
On judicial review, Justice Grant found that the application had to be granted on a single, narrow ground. The PA had testified that should she be forced to return, she would have no other choice but to return to live in the village where the Sheikh was living. The RPD misapprehended this testimony, as it referred repeatedly to the risk she would face upon return to Beirut. The RAD did not specifically refer to the location of the PA’s return but did adopt a significant portion of the RPD’s reasoning, including paragraphs that referred the PA’s return to Beirut. Given the circumstances of the case, Justice Grant saw this as a reviewable error. It is not the RPD or the RAD’s place to disregard testimony and instead focus their assessment on the risk of return to Beirut. The documentary evidence indicated that both corruption and gender-based violence were pronounced in rural and conservative areas (which the PA had specifically highlighted as the village being quite socially conservative). The application for leave was allowed.
Cruz Salazar v. Canada (MCI) 2024 FC 1149
In Cruz Salazar v. Canada (MCI) Justice McDonald assessed the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants were Mexican citizens who alleged to be targeted by organized crime groups. However, on appeal, the RAD found they had a viable internal flight alternative (IFA) in Vitoria de Durango. On judicial review, Justice McDonald found that the RAD had enough evidence on hand to determine that the Applicants were facing extortion and were targeted by the cartel. The fact that the Applicants could not identify whether the cartel as either CJNG or Los Zetas did not disqualify their claim for consideration. The fact that an applicant cannot identify their agent of persecution “does not negate the probability of risk the applicants alleged they faced” (Diaz, 2010 FC 797, at par. 22). Justice McDonald found that the RAD unreasonably failed to consider the above when determining that the Applicants has not established the identity of their agent of persecution. In addition, Justice Ahmed found that it was unreasonable for the RAD to use this uncertainty as a basis to conclude that no agent of harm could be identified, and as such there was no motivation to locate the Applicants. This finding failed to reconcile the country condition evidence with the Applicants’ circumstances. The application for leave was allowed.
Thevarasa v. Canada (MCI) 2024 FC 1123
In Thevarasa v. Canada (MCI) Justice Azmudeh considered the Applicant’s stay of removal motion. The Applicant sought stay of removal pending the final determination of his pending judicial review of a negative Pre-Removal Risk Assessment (PRRA) decision. The Applicant was a failed refugee claimant who claimed persecution at the hands of the Sri Lankan authorities. The Refugee Protection Division (RPD) had rejected his claim on credibility grounds. The Applicant submitted extensive PRRA submissions, which included new evidence on his cumulative residual profile in Canada since his claim was rejected. This included evidence: 1) that he was returning to Sri Lanka as a failed refugee claimant; 2) he resided in a large Tamil community in Canada and engaged in pro-Tamil (anti-government) activities; 3) the fact that he has been away from Sri Lanka since 2018; and 4)he did not have a Sri Lankan passport and would therefore return on a travel document.
Justice Azmudeh found that the PRRA Officer accepted all of the above, but individually, without analysis of interaction of the factors, ignoring the cumulative nature of the Applicant’s risk profile. Justice Azmudeh found that the first prong of the tripartite test for a stay was met. The Applicant had established a serious issue: the Officer failed to consider the cumulative nature of the Applicant’s profile, conducting a high-selective analysis of the country conditions. Justice Azmudeh found that the Officer attempted to articulate their decision in terms of “sufficiency” of evidence, when in reality their decision was based on credibility. When it came to irreparable harm- the second element of the test- it was also met as the Applicant’s removal prior to the determination of his pending leave would potentially render the application moot; the loss of the right to seek a meaningful and effective remedy in the underlying proceeding amounted to irreparable harm. Lastly, Justice Azmudeh found that the balance of convenience favoured the Applicant. It is not in the public interest to favour the removal of the Applicant to a country where he could be persecuted or tortured, rather the interest in ensuring that the Applicant retained the right to a meaningful and effective remedy was not the Applicant’s alone. The application for leave was allowed.
Noory v. Canada (MCI) 2024 FC 1119
In Noory v. Canada (MCI) Justice Sadrehashemi examined the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant was an Afghan citizen, who fled to the United States (US) roughly 24 years ago after he was detained and tortured by the Taliban. While in the US, the Applicant worked as a cook and driver at the Afghan Embassy in Washinton, DC. In 2018, the Applicant came to Canada but was unable to claim asylum as the Refugee Protection Division (RPD) found him inadmissible for having been a member of the Mujaheddin resistance. The Applicant made a PRRA application, alleging that he was at risk form the Taliban due to his previous work of educating girls in Afghanistan, and due to his former work for the Afghan Embassy in the US. The Applicant’s PRRA was refused as the Officer found that the Applicant did not establish that he was of interest to the Taliban, arguing that the alleged risk was generalized and not personalized.
On judicial review, Justice Sadrehashemi found that the Applicant did not rely on generalized country conditions, rather the Applicant established that he had previously worked for the Afghan Embassy in the US and had been previously detained and tortured by the Taliban. The Taliban had since regained power in Afghanistan. Throughout the decision were examples of the Officer’s requirement for evidence that showed the Applicant as the “named target” of the Taliban, however, this was not the test under s.97 of IRPA. “Certainty is not required; a person does not need to be named in the objective country reports or be personally named as a target in a meeting in their village or be able to produce a wanted list on which they are listed. The test is on a balance of probabilities in relation to a danger and risk of particular harms, not certainty that these feared harms will befall them” (at par. 8). The Applicant also provided objective evidence that the Taliban was targeting former employees of the former government, and the Officer failed to grapple with this evidence. In addition, there was evidence that the Taliban’s promise of amnesty for former government employees was not followed through on, and yet the Officer found, without explanation, that amnesty was an option for the Applicant given his circumstances. The application for leave was allowed.
Jayaram Bhat v. Canada (MPSEP) 2024 CanLII 67102
In Jayaram Bhat v. Canada (MPSEP), Justice Pentney considered the Applicant’s stay of removal motion. The Applicant sought stay of removal pending the final determination of his pending judicial review of a negative deferral request. The Applicant came to Canada in July 2021 with his wife and infant son. Shortly afterwards, in September 2021, the Applicant separated from his wife after he was charged with assault causing bodily harm (the charges were later withdrawn after the Applicant completed a partner assault program and entered into a peace bond). The couple remained separated and entered into a parenting arrangement. The Applicant had attempted to renew his work permit with his employer’s support, but it was refused. The Applicant then attended at the point of entry and applied for a Temporary Resident Permit and work permit, however, both applications were refused, and he was issued an exclusion order. The Applicant’s deferral request was also denied.
On judicial review, Justice Pentney was persuaded that the Applicant would have likely succeeded in his deferral decision challenge. There was merit in the Applicant’s argument that the Officer’s best interests of the child (BIOC) assessment did not grapple with the crux of his request for a deferral of removal. This met the serious issue test. In addition, Justice Pentney found that the Applicant also succeeded in establish irreparable harm. The record before the Court showed that the Applicant made significant effort in maintaining a continuous, in-person, relationship with his infant son. Justice Pentney agree that if the stay was not granted, the Applicant and his son would most likely be physically separated for a year (pending the expiry of the exclusion order). “Neither of them will ever get that time back, and the damage to their relationship caused by such an extended absence is unknowable at this point. Irreparable harm to the child is, ipso facto, irreparable harm to the Applicant” (at par. 13). Based on the findings for the first two parts of the test, Justice Pentney found that the balance of convenience favoured the Applicant. The Minister’s removal interest did not override the Applicant’s interest in maintaining a relationship with his son. The Applicant’s stay motion was granted pending the determination of the judicial review of his negative deferral decision.
Labra v. Canada (MCI) 2024 FC 1114
In Labra v. Canada (MCI) Justice Grant assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant made a PRRA based on his profile as a crystal meth addict. The Applicant argued that drug users were subject to mistreatment in the Philippines. The Officer acknowledged that “conditions in the Philippines are less than ideal for those known or suspected to be drug users or dealers,” and that the war on drugs policy resulted in “egregious” human rights abuses. Nevertheless, the Officer found the Applicant to not be at risk as: 1) his drug use was not know in the Philippines; 2)he failed to establish that the authorities perceived him to be a drug dealer or user; 3) the Applicant had periods of sobriety and sought treatment;4) while there was a “possibility” of a relapse, there was not enough evidence that his family would not support him; 5) the focus of the drug war had shifted from punishment to treatment (allowing the Applicant access to treatment if he were to relapse) and 6) while the Applicant submitted positive case law where drug users facing removal to the Philippines were granted protection, each case was to be decided on its own facts.
On judicial review, Justice Grant found the Officer made several errors. First, the Officer made speculative findings when it came to Applicant’s sobriety and aid. The Applicant’s evidence showed that his life was defined by intense drug use with brief periods of sobriety. Despite strong family support, the Applicant still went through a downward spiral of addiction and homelessness. There was also evidence before the Officer which suggested that crystal meth addicts had a relapse rate of 61% in the first year and 87% after five years. It was unclear to Justice Grant how the Officer could have determined that the Applicant failed to establish likelihood of relapse, homelessness, and mistreatment should he be removed from Canada, where his support network is less sufficient than in Canada. Second, the Officer failed to explain why the facts of this case warranted a different outcome to the likewise situated decisions submitted by the Applicant. Lastly, the Officer failed to clearly articulate whether the Applicant was considered under s.96 of IRPA. The Officer’s disregard of a s.96 element was potentially significant due to the higher legal standards associated with s.97 applications. The application for leave was allowed.