Louis v. Canada (MCI) 2024 FC 1391
In Louis v. Canada (MCI) Justice Turley examined the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was a Saint Lucian citizen whose H&C application was refused. On judicial review, Justice Turley found the determinative issue to be the Officer’s best interests of the child (BIOC) analysis when it came to the Applicant’s 11-year-old Canadian born son. The Officer argued that the Applicant’s departure and permanent residence application from abroad would not cause “significant negative impact” on the child’s best interests. Justice Turley found that there were a number of serious flaws with the Officer’s BIOC assessment that rendered the decision unreasonable. First, the Officer depended on the general resilience of children, arguing that the child could adjust to life in Saint Lucia, despite never having lived there. The Federal Court “has consistently held that generic reasoning about children’s adaptability and resilience is problematic” (at par. 8). The Officer also failed to do an individualized assessment by linking their conclusion to the child’s circumstances. The Officer’s generalized approach did not consider whether the child’s medical conditions increased his vulnerability such that he may not be able to be as resilient as other children. The Officer bolstered their conclusion about the child’s integration by referencing to the assistance of the Applicant’s siblings and parents in Saint Lucia; however, this evidence was also misapprehended.
Second, the Officer did not do a comparative analysis. Justice Turley found that it was mandatory for the Officer to assess the child’s best interest from both perspectives: Canada and Saint Lucia. The Officer should have also considered the child’s various medical conditions when conducting a BIOC analysis. In contrast, the Officer simply made a passing remark on the child’s medical conditions and did not meaningfully engage with the evidence on record. The evidence showed that the child suffered from chronic eczema requiring a high dose prescription medication, as well as sever environmental allergies and a life-threatening nut-allergy. The Officer erred when finding that there was a lack of objective evidence about access to medical care in Saint Lucia determinative of the BIOC analysis regarding the son’s medical conditions. The Officer failed to consider how remaining in Canada under the care of his doctor, with access to his medication, would be in the best interest of the child, thereby failing to engage in the necessary comparative analysis. Lastly, the Officer failed to address the Applicant’s evidence that they would not be able to live with their family in Siant Lucia; evidence which was highly relevant and should have been factored into the BIOC analysis. The application for leave was allowed.
Andrada v. Canada (MCI) 2024 FC 1387
In Andrada v. Canada (MCI) Justice Pallotta reviewed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant was a Filipino citizen who came to Canada as a permanent resident in 2005. In 2022, the Applicant was found inadmissible to Canada due to serious criminality and subject to a removal order (he had served some time in prison for drug trafficking, possession of a weapon, and possession of the proceeds of a crime). The Applicant made a PRRA application, alleging that he had struggled with drug abuse for years, and would be personally subject to the risks outlined in s.97 of the IRPA, due to the war on drugs in the Philippines. The Applicant also argued that the separation from his family and risk of poverty in the Philippines would re-trigger his addiction. The Officer refused the PRRA, finding that the Applicant would not face forward-looking risk as the Applicant “used to have substance problems” and “is not a current drug user” and “has never been a drug dealer in the Philippines.” In light of the evidence on record, Justice Pallotta disagreed with the finding that the Applicant would not face forward-looking risk due to relapse. The Officer failed to explain how the Applicant’s past substance abuse and unemployment were considered in the Officer’s assessment of forward-looking risk. It did not follow that as the Applicant was not using drugs at the time and had never been a drug dealer in the Philippines, that he would not face a forward-looking risk in the Philippines. The application for leave was allowed.
Sebok v. Canada (MCI) 2024 FC 1362
In Sebok v. Canada (MCI) Justice Pentney assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant was a Hungarian citizen who was of Roma ethnicity. The Applicant came to Canada in 2011, after facing prolonged discrimination and violence (including racist attacks) in Hungary. The Applicant’s refugee claim was refused in 2014, but the proceeding was tainted as his lawyer, Joseph Farka, was found to have failed to provide competent representation to a large number of Roma refugee claimants. In the end, the Applicant applied for a PRRA in 2021. In 2022, the Applicant’s PRRA was refused, with the Officer finding that the Applicant failed to show that he was at risk in Hungary and failed to rebut the presumption of state protection. Justice Pentney found the determinative issue was the Officer’s treatment of the evidence of racist attacks, as well as the Officer’s assessment of state protection.
Justice Pentney found the Officer’s discussion of the evidence when it came to the racist attacks was not intelligible in light of the Applicant’s sworn affidavit. The main issue with the Officer’s analysis was the statement (which was immediately followed by the Officer’s discussion of the Applicant’s medical reports) “There is no other evidence on file to support that the incidents were based on his Roma ethnicity.” This statement could not be regulated with the Applicant’s sworn evidence which describe the incidents in detail. The Officer seemed to have confused the purpose of the medical reports, which were submitted to corroborate the evidence in the Applicant’s affidavit. It was not up to the Officer to ignore the Applicant’s evidence while concluding that there was “no other evidence” linking his injuries to racist attacks.
The Officer also found that the Applicant had not overcome the state protection findings made by the Refugee Protection Division (RPD). However, Justice Pentney found that the Officer failed to account for two key factors: 1) the RPD’s findings were marred by the incompetent representation of the Applicant’s former counsel; and 2) the significant amount of time that passed between the RPD’s first assessment and the determination. Evidence on record showed that Hungary was no longer considered democratic, with several of the institutions that the RPD relied on as avenues of protection having been abolished or undermined due to inadequate funding (the police and the authorities having failed to protect numbers of Roma from attacks). The Applicant provided substantive evidence about the progress of the situation in Hungary- key evidence that the Officer failed to address. The application for leave and judicial review was allowed, and the Applicant was afforded the opportunity to provide further evidence and submissions.
Skelton v. Canada (MPSEP) 2024 FC 1353
In Skelton v. Canada (MPSEP) Justice Battista analyzed the Applicant’s Immigration Division (ID) decision. The Applicant was convicted of several offences as a result from robberies in May 2015. The Applicant pleaded guilty as was sentenced to four month’s imprisonment. In 2020, the Applicant was found inadmissible pursuant to s. 37(1)(a) of IRPA (organized criminality), but this finding was quashed by the Federal Court and the matter was sent back for redetermination. The redetermination resulted in a second inadmissibility finding pursuant to s. 37(1)(a) of IRPA in 2023. The ID determined that the criminal organization existed from March to May 2015 and that the Applicant was a member. The Applicant argued a defense of duress to explain his actions. The ID acknowledged that the Applicant received death threats from the organization; was fearful due to his mother’s shooting and father’s murder in Jamaica; and had no means of escaping the commission of crimes. Nevertheless, the ID found the Applicant’s behaviour to be inconsistent with that of a “reasonable” 18 to 21-year-old in his position and dismissed the defense of duress on implausibility grounds.
On judicial review, Justice Battista found that the ID’s determination that the Applicant was a member of a criminal organization to be unreasonable as there was insufficient evidence on this, and because the ID dismissed the defense of duress. The ID acknowledged that the Applicant’s criminal activity was confined to the time period of May 25th to 28th. However, the ID argued that he was a member of an organization for four reasons: 1) he was involved in the same pattern of criminal activity; 2) he “hung out” with the members; 3) he played an integral in the criminal activities; and 4) he did not deny his involvement with the group. Justice Battista found that while the first finding was reasonable, the remaining three were not due to the evidence on hand. In addition, the ID’s approach to the Applicant’s defense of duress was flawed as it failed to apply the applicable jurisprudence. Instead, the ID set-up a highly subjective standard of behaviour, held the Applicant against the standard, and when the Applicant failed to meet the standard, the ID refused his defence of duress. The application for leave was granted and the ID decision was declared a legal nullity. As such, the consequences of the decision (specifically, the deportation order and loss of permanent residence status) were also declared legal nullities.
Nshimyumuremyi v. Canada (MCI) 2024 FC 1352
In Nshimyumuremyi v. Canada (MCI), Justice Battista reviewed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant was a gay man from Rwanda. He had been removed from Canada on April 30, 2024, despite the Federal Court’s production order, which was issued prior to removal (indicating that leave would most likely be granted). The preliminary issue at hand was whether the application was moot or not. In Justice Battista’s opinion, the concept of mootness does not neatly apply to the judicial review of a negative PRRA decision, especially once removed from Canada. However, the Court was bound by the Federal Court of Appeal’s decision in Solis Perez, 2009 FCA 171,that judicial review of a negative PRRA application by persons removed from Canada is moot. For that reason, Justice Battista found that the judicial review application was moot. Justice Battista then looked into whether to use his discretion to hear and determine the application, not withstanding its mootness, with reference to: 1) the continued existence of an adversarial context; 2)concern for judicial economy; 3) the Court’s lawmaking role; and 4) the role of one of the parties in manufacturing the condition for mootness (as the Applicant was removed while having a pending judicial review application). Justice Battista found that all the above factors supported the exercise of discretion.
When it came to the last factor (manufactured mootness), Justice Battista stated that an “application of this criterion is concerned with the extent to which an applicant has been able to exercise a right of review in court, the degree of the Court’s expressed interest in assuming jurisdiction over the matter, and the timing of a party’s actions in undermining the justiciability of the dispute” (at par. 40). The Applicant was in detention throughout the duration of the processing of his PRRA application, up until the date of his removal. His removal was enforceable 15 days after the deemed abandonment of his asylum claim in 2023, however, no steps were taken to remove him until the production order was issued in February 2024. Despite the production order, a Direction to Report was issued on April 22nd, and the Applicant was deported on April 30th, 2024. Justice Battista found that based on the evidence on record in support of the PRRA, the Officer’s lack of credibility concerns when it came to the Applicant’s experiences or fears, and the documentary evidence on risks faced by the LGBTQI community in Rwanda, it was possible, or even probable, that the respondent’s actions resulted in a breach of Canada’s non-refoulement obligation under the IRPA and international law (at par. 46). Justice Battista noted that: “[u]nless there is to be regular interference with the judicial function of the Court, production orders should be a signal to the Respondent to scale down enforcement strategies, not to escalate them, which is what appears to have happened in this case” (at par. 47). With the Respondent’s role in manufacturing mootness, given the Court’s expressed inclination to hear the application, it would be contrary to the interests of Justice to decline to hear the application for judicial review.
On judicial review, Justice Battista found that the Officer’s PRRA decision was unreasonable. The Officer unnecessarily dismissed the Applicant’s 11-page narrative as evidence of his sexual orientation. The Officer also unreasonably required corroboration of the Applicant’s sexual orientation. Justice Battista found the decision unreasonable and set aside. At the hearing, Applicant’s counsel requested that an order be issued to return the Applicant to Canada. Justice Battista stated that it was unlikely that the Court in a judicial review of a negative decision context had the authority to issue such an order. Either way, the Applicant failed to request the scope of the review to encompass the legality of removal, nor to enjoin the public authority responsible for removal. The matter at hand involved the review of the negative PRRA decision, not the removal. The requested order was dismissed. The application for leave was allowed.
Virag v. Canada (MCI) 2024 FC 1325
In Virag v. Canada (MCI) Justice Go assessed the Applicants’ Pre-Removal Risk Assessment (PRRA) decision. The Principal Applicant (PA), his spouse (Associated Applicant) and their two children were Hungarian citizens of Roma ethnicity. They claimed asylum in 2012, but the Refugee Protection Division (RPD) refused their claim in 2018. The Applicants departed Canada in 2019. In 2020, the Applicants attempted to re-enter Canada, but as they were not eligible to make a refugee claim, they once more departed the country (that same day). In 2021, the Applicants returned to Canada again, this time making a PRRA application in March 2022. The PRRA application was based on their alleged fear of persecution due to their Roma ethnicity. Unfortunately, the PRRA application was refused.
On judicial review, the determinative issue was the Officer’s finding that there was insufficient evidence to support the recent attacks (as they related to their ethnicity). The Applicants had submitted three affidavits as well as a statement from their minor son. The Officer relied on the references in these affidavits to past incidents (pre-dating the RPD decision) as the basis to discount the affidavits. The Officer provided no explanation as to why these past events resulted in discounted weight; this was unreasonable. It was also unreasonable for the Officer to argued that there was insufficient evidence to support the attacks as a result of their ethnicity. The Associated Applicant’s affidavit explicitly tied the attacks to their Roma ethnicity. An applicant’s sworn statements are presumed to be true unless there are considerable contradictions or inconsistencies. The Officer did not make any findings of contradictions or inconsistencies and failed to explain why the Applicant’s affidavits were insufficient evidence to link the attacks to their Roma ethnicity. The application for leave was allowed.