Recent Decisions | Landings LLP

Khowaja v. Canada (MCI) 2025 FC 313

In Khowaja v. Canada (MCI) Justice Brown reviewed the Applicant’s Temporary Resident Visa (TRV) decision, which was refused on inadmissibility grounds. The Applicant was a former member of the Pakistani Intelligence Bureau (IB) and found inadmissible under s. 34(1)(f) as it relates to s.34(1)(a) of IRPA (a member of an organization that engaged in espionage “against Canada or that is contrary to Canada’s interests”).

On judicial review, the Applicant argued that the Officer had unreasonably interpreted s.34(1)(a) of IRPA by failing to expressly define and identify the necessary connection between intelligent gathering activities conducted by the IB and the security interests of Canada, contrary to the Federal Court of Appeal’s decision in Weldemariam, 2024 FCA 69. Justice Brown agreed with the Applicant in this respect. Justice Brown did not believe that the Officer reasonably considered or applied the narrowed scope and new focus given by Parliament in 2013 to s.34(1)(a) of the IRPA. Justice Brown was also unable to perceive that the Officer identified the necessary connection between the identified espionage conducted by the IB as being “against Canada or contrary to Canada’s interests” (at par. 67). As per Weldemariam, there is only one reasonable interpretation of s.34(1)(a) of the IRPA (at para. 118): “That is, permanent residents or foreign nationals may only be found to be inadmissible to Canada under paragraphs 34(1)(a) and 34(1)(f) of IRPA where the espionage in which they are involved—either directly or indirectly—is directed against Canada or has a nexus to Canada’s national security or security interests: Mason at para. 121.” While Justice Brown was asked to read that nexus into the decision on the basis of the record, Justice Brown declined to do so. The application for leave was allowed.

Subakaran v. Canada (MCI) 2025 FC 309

In Subakaran v. Canada (MCI) Justice Grant examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a Sri Lankan citizen who feared persecution based on his mistreatment at an army camp, as well as his Tamil ethnicity, and failed asylum status. The Applicant alleged that in 2019 he was stopped by soldiers on his way home from school. He was then blindfolded, taken to an army camp, shown a photo and asked if he was the person in it. He denied it and was then beaten. He remained in detention for a week and continued to be asked if he was in the photo. Each time the Applicant denied he was in the photo, he was beaten. The Applicant was also forced to sign a document in Sinhalese, which he did not understand. The Applicant was eventually released and left unconscious in the streets, requiring treatment in the hospital for multiple injuries. The Applicant’s father arranged for his departure, and he arrived in Canada in January 2020. The Refugee Protection Division (RPD) rejected the Applicant’s claim, and the RAD denied his appeal. The determinative issue was credibility.

The RPD found, and the RAD agreed, that there were inconsistencies with the Applicant’s Basis of Claim (BOC) Narrative and the testimony on how the Applicant understood the demands of those who arrested him. However, upon review, Justice Grant found this was not the case. Both the RPD and the RAD misapprehended the Applicant’s evidence, conflating what the Applicant stated about the moments of his arrest with his testimony about the interrogations he alleged to have later experienced at the army base. This error related to a defining moment of the Applicant’s claim for asylum: his arrest and the mistreatment by the military. Moreover, Justice Grant found that the RAD erred in its treatment of the Applicant’s corroborative evidence, in particular, a letter from the Applicant’s father and medical evidence on record. There was no basis for the RAD to find that these pieces of evidence warranted little probative value. The application for leave was allowed.

Alaybiyi v. Canada (MCI) 2025 FC 289

In Alaybiyi v. Canada (MCI) Justice Strickland assessed the Applicant’s cessation decision. The Applicant was granted asylum in 2005. The claim was based on her fear that her father would marry her to an abusive older man, who would force her to undergo female genital mutilation. The Applicant secured permanent resident status in 2006. The Applicant testified that when she was applying for permanent residence, IRCC requested that she obtain a Nigerian passport. She renewed this passport twice for the purposes of travel to the United States and Benin. The Applicant also used her passport to travel back to Nigeria four times due to serious illnesses of her family. Based on these trips, the Refugee Protection Division (RPD) granted the Minister’s cessation application on the basis of reavailment. The Applicant did not challenge that she went back to Nigeria voluntarily. The main issue was the Applicant’s intention, and whether she actually did reavail herself of Nigeria’s protection.

On judicial review, Justice Strickland found that that the RPD failed to meaningfully engage with the Applicant’s precautionary measures which she took while in Nigeria. When it came to assessing subjective fear, while it was open to the RPD to balance the precautionary measures against other factors to see whether the evidence rebutted the presumption of reavailment, it was not apparent that the RPD did this. Moreover, the RPD noted several times that the Applicant returned to Nigeria four times but also found that the first two trips were for compelling reasons. Thus, it was not clear why the four returns factored heavily in the assessment. Additionally, it was not clear why the RPD distinguished the first two trips due to family illness from the latter two trips, which the Applicant made for the same reasons. Lastly, the RPD appeared to have conflated its analysis of intent to reavail with whether the motive for travel was necessary or justified. As the decision was found to be unreasonable, Justice Strickland did not engage with the Applicant’s Charter arguments. The application for leave was allowed.

Hattabi v. Canada (MCI) 2025 FC 283

In Hattabi v. Canada (MCI) Justice Ngo explored the Applicants’ negative Refugee Appeal Division (RAD) decision. The Applicants (a married couple and three children) were Algerian citizens who feared several members of their respective families that never accepted their union. The wife claimed that since their union, she experienced harassment, threats, and assaults from her family and in-laws. The harassment and violence prompted the Applicants to leave Algeria. The Refugee Protection Division (RPD) accepted some of the allegations but ultimately found that there was an internal flight alternative (IFA) in Algeria. The RAD dismissed the Applicants’ appeal and sided with the RPD on the IFA matter. On judicial review, the Applicants argued that the RAD errored in their assessment of the alleged threats of abduction when it came to their children. Justice Ngo agreed with the Applicants. The RAD’s decision relied on the supposedly late mention of the threat of abduction to determine that it was not credible. However, the evidence on record showed that the Applicants had raised this fact earlier, during a hearing before the RPD. The application for leave was allowed.

Ayyanathan v. Canada (MCI) 2025 FC 278

In Ayyanathan v. Canada (MCI) Justice Southcott reviewed the Applicant’s negative Refugee Appeal Division (RAD) decision. The Applicant was an Indian citizen and member of the Agamudayar caste. On judicial review, the key issue was the second prong of the internal flight alternative (IFA) test. Specifically, the question of whether the Applicant’s caste would impede him from securing accommodations in the proposed IFAs. The Applicant testified that when he would register as a new tenant, the police would look into the matter and advise the landlord of his caste. The RAD noted that a document in the National Documentation Package (NDP) stated that last names are almost always indicative of which caste a person belongs to. Nevertheless, the RAD concluded that this did not apply to the Applicant due to his testimony that the police would have to dig into the matter to discover his caste (the RAD reasoned that the Applicant’s caste would not be apparent in the absence of such efforts.) Justice Southcott found that the RAD failed to intelligibly engage with the country condition evidence. Justice Southcott did not comment as to whether the referenced NDP evidence applied to the Applicant’s surname and caste, but it was unreasonable for the RAD to concluded that it did not based on the Applicant’s testimony by which a landlord might become aware of his caste. As the Applicant’s inability to get accommodations could render the IFAs unreasonable, the application for leave was allowed.

Rodas Tejedas v. Canada (MPSEP) 2025 FC 214

In Rodas Tejedas v. Canada (MPSEP) Justice Southcott examined the Applicant’s inadmissibility finding. The Applicant brough forward two applications for judicial review: 1) the Minister’s decision to refer him to the Immigration Division (ID) for an admissibility hearing; and 2) the ID’s decision that the referral did not constitute an abuse of process.

The first application for leave dealt with the referral to the ID for an admissibility hearing 12 years after he entered Canada and disclosed potential basis for inadmissibility. The Applicant argued this was an abuse of process and the matter should be stayed. Justice Southcott noted that the prematurity principle applied in this case as the Applicant was seeking intervention, wishing to stay the administrative proceedings for abuse of process, rather than let the proceedings take place before the ID. The prematurity principle is not absolute, and there have been cases where the abuse of process gave rise to intervention. As expressed in those authorities, if recourse to the administrative process does not represent an adequate remedy as an alternative to seeking a stay, then the court may find an available exception (at par. 15). The Applicant argued that the ID was not an adequate remedy as its jurisdiction was restricted to considering delay following the decision to prepare a s.44 report (which in this case, was only 28 months). No such restriction applies to the court. As such, the Applicant submitted that the administrative process did not afford an alternative remedy that could be considered adequate. Justice Southcott found this argument would be compelling, if not for the conclusion that the court reached in the judicial review of the ID decision (2025 FC 215): the ID erred in finding that its jurisdiction was limited to the period following the CSBA’s decision to prepare the s.44 report. Thus, the ID did represent an adequate alternative remedy. Justice Southcott was conscious that this result differed from that in Beltran, 2011 FC 516, an authority upon which the Applicant relied. However, that case was distinguishable. Justice Southcott concluded that this application for leave was premature and was dismissed. Justice Southcott certified the following question:

Does the Immigration Division of the Immigration and Refugee Board have the jurisdiction to grant a stay of proceedings upon finding an abuse of process taking into account delays by the Canada Border Services Agency before making a decision to prepare a report pursuant to section 44 of the Immigration and Refugee Protection Act, SC 2001, c 27?

Rodas Tejeda v. Canada (MCI) 2025 FC 215

In Rodas Tejeda v. Canada (MCI) Justice Southcott assessed the Applicant’s Immigration Division (ID) decision, which found that the decision of a Minister’s delegate to refer the Applicant to an admissibility hearing pursuant to s.44(2) of the IRPA, 12 years after he entered Canada and disclosed the potential basis for inadmissibility, was not an abuse of process arising from the Minister’s delay. The ID determined that it had limited jurisdiction to grant a stay of proceedings due to an abuse of process arising from delay which is calculated from the point when the CBSA decides to prepare a s.44 report. The ID further noted that the delay in this case (28 months, based on this method of calculation) did not amount to an abuse of process (at par. 11).

On judicial review, Justice Southcott addressed the prematurity principle and the standard of review. Justice Southcott found that this application for leave was not premature. There was sufficient evidence of the effects that the ongoing immigration proceedings were having on the Applicant’s mental health. The circumstances of this case represented a situation wherein it was appropriate for the Court to examine the ID’s decision on whether the admissibility proceedings were an abuse of process, before subjecting the Applicant to further proceedings. There was an additional reason for Justice Southcott to perform the analysis at this stage: the required analysis in the application for judicial review of the referral decision (2025 FC 214) was inextricably linked. This connection represented an unusual and exceptional circumstance that supported a decision not to apply the prematurity principle (at par. 45). When it came to the standard of review, regardless of which was applied, Justice Southcott found that the ID had erred. The ID’s conclusion that the delay did not amount to abuse of process turned significantly on its conclusion that its jurisdiction to grant a stay of proceedings was restricted to consideration of delay following the point at which the Minister made a decision to prepare a s.44 report. The Applicant highlighted that the Supreme Court’s decision in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, like its earlier decision in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, assessed abuse of process by considering the entire period of governmental delay, beginning when the government first received notice of the relevant legal issue. Justice Southcott agreed with the Applicant’s interpretation of Abrametz (at para. 66). The ID’s decision failed to explain its conclusion that the different administrative regimes warranted different applications of the principles identified in the SCC jurisprudence. Justice Southcott reviewed the relevant jurisprudence and concluded that the authorities do not support a conclusion that there is something unique about the ID or its statutory regime that limits its jurisdiction in a manner inconsistent with Abrametz. The application for judicial review was allowed. The following question was certified for appeal: