Kang v. Canada (MCI) 2025 FC 473, [2025] F.C.J. No. 460
In Kang v. Canada (MCI) Justice Little reviewed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant arrived in Canada from India to get married at eighteen. She married her husband five days after arriving in British Columbia, in December 2021. Her husband started to abuse the Applicant emotionally, verbally, physically, and sexually, isolating her from her family and the outside world. The Applicant was also pressured by her husband and family to have a baby. With the aid of her brother and sister-in-law, she was able to leave her husband in July 2022. The Applicant relocated to Ontario, where she remined under their support. In August 2022, the husband withdrew the sponsorship application, and the Applicant remained in Canada on a temporary resident visa, which was valid until 2028. The Applicant submitted an H&C application which was ultimately refused.
On judicial review, Justice Little found the Officer’s decision contained material errors when it came to intimate partner violence. The Federal Court has held that intimate partner violence is a compassionate factor when it comes to H&Cs. In the case at hand, the Officer’s overall conclusion gave positive consideration to the Applicant’s resilience in the face of abuse. However, by focusing on this aspect, to the exclusion of the Applicant’s filed statements, the Officer failed to conduct a proper assessment of the issue. The abuse in question was not only “emotional, verbal physical and sexual abuse (as the officer stated), but also breach of trust, betrayal, controlling behaviour, isolation of the applicant from her family and friends, abuse of her financial dependence on the husband, the stifling of her ambitions and independence, and the shattering of her dreams of a happy marriage in Canada, thousands of kilometres from her home in India.” None of the aforementioned was noted in the Officer’s reasons. The Officer also failed to disclose how much weight was given to the intimate partner violence as a compassionate factor, nor why such weight was assigned. The application for judicial review was allowed and the Applicant was permitted to update her application upon redetermination.
Kilivan v. Canada (MCI) 2025 FC 467
In Kilivan v. Canada (MCI) Justice Whyte Nowak examined the Applicant’s Pre Removal Risk Assessment (PRRA) decision. The Applicant was a Turkish citizen who submitted a PRRA on the allegations of persecution due to his Kurdish ethnicity and political affiliation with the Halklarin Demokratik Partisi (HDP). The Officer refused the application, finding that the discrimination against Kurdish people did not rise to the level of persecution and that the Applicant failed to show personalized risk.
On judicial review, Justice Whyte Nowak found the first issue was whether the Officer reasonably and fairly considered the Applicant’s affidavit. The Applicant’s affidavit noted an incident in 2022 wherein he was confronted by the civilian police and questioned regarding his involvement in the HDP, as well asked to spy on the party. When the Applicant declined, he was beaten and threatened. The Applicant stressed that this evidence clearly connected the incident of persecution to his political affiliation. Justice Whyte Nowak found the Officer’s dismissal of the incident, without clear rationale, was not justified. In addition, the Applicant’s fear of the police was more than generalized risk of his political affiliation with the HDP; rather, it stemmed from his refusal to spy on group’s leadership, which was a part of the Applicant’s profile that the Officer failed to acknowledge.
Second, the Applicant argued that he was denied procedural fairness as a result of how the Officer handled the evidence. The minimal weight assigned to his evidence, due to lack of objective corroborative evidence, constituted a veiled assessment of credibility and required the Officer to allow the Applicant to respond to the Officer’s concerns. The Applicant referred to JKL, 2021 FC 1166, and Yakut, 2009 FC 1190, which found that where an officer cites “insufficient objective evidence” in support of an applicant’s assertions, it amounts to a finding that the officer disbelieves the applicant and constitutes a conclusion about the applicant’s credibility. Justice Whyte Nowak agreed that the Officer’s statement that the Applicant failed to show that the incident in 2022 was due to his political affiliation (when the Applicant clearly stated that it was) represent a disconnect and suggestive of credibility issues. The Respondent argued that Yakut was distinguishable, as it pertained to persecution based on sexuality, for which there is rarely any objective corroborating evidence. However, Justice Whyte Nowak found the reasoning to be equally applicable wherein the incident of persecution stemmed from extra-judicial incidents with the police, which are also not likely to be documented.
Lastly, Justice Whyte Nowak found the Officer’s silence regarding the evidence from the Applicant’s wife (claiming that police officers came to their home, seeking the Applicant) conflicted with the determination that “while the Applicant alleges that he was attacked in March 2016 and August 2022 by police officers, I note that in both incidences the applicant was released and returned home. This indicates that he does not hold a high-ranking position in the HDP and is not of interest to the authorities.” The Officer’s failure to engage with the wife’s substantial and contradictory evidence amounts to a reviewable error. The Officer ought to have clarified why the continued interest on the police did not corroborate the Applicant’s fear of continued persecution and, in light of the 2022 incident, whether it supported the Applicant’s argument that his profile was different from that of a regular low-level HDP member. The Application for leave was allowed.
Fuentes Yanez v. Canada (MPSEP) 2025 FC 456
In Fuentes Yanez v. Canada (MPSEP) Justice Ahmed assessed the Applicant’s stay of removal application. The Applicant was looking to stay his removal set for March 31st, 2025, pending the judicial review determination of the deferral decision (an Officer denied the Applicant’s deferral request on February 28th, 2025).
On judicial review, Justice Ahmed found that the Applicant met the tripartite test for a stay. First, the Applicant raised a serious issue with the decision. The Applicant’s son was nonverbal and was in the process of being assessed and treated for autism and delayed speech. The Officer determined that as the primary caretaker was the mother, the son’s separation from the Applicant would not rise above “an unfortunate yet inherent result of the removal process.” Justice Ahmed noted that “primary caregivers are not the only individuals upon whom nonverbal autistic children may rely during the period immediately following their diagnosis, when their condition is assessed and their treatment and language therapy plans are created and implemented” (at par. 4). Second, the Applicant established irreparable harm. Justice Ahmed noted that the harm that could result to this particular child, as a direct result of being separated suddenly from their parent (who was highly involved), was greater than the standard consequences of deportation. The balance of convenience favored the Applicant. Justice Ahmed found that the Applicant was also not a danger to the public or security of Canada and granted a temporary deferral in light of the best interests of the child. The stay was granted, pending the determination of the judicial review of the negative deferral decision.
Canada (MPSEP) v. Eriator 2025 FC 446
In Canada (MPSEP) v. Eriator Justice Roy considered the Respondent’s inadmissibility appeal with the Immigration Appeal Division (IAD). The Respondent was a low-raking police officer in Nigerian Police Force (NPF) from June 2009 to December 2016. The Immigration Division (ID) determined that the evidence did not prove the Respondent’s inadmissibility to Canada pursuant to s.35(1)(a) of the IRPA (committing acts outside of Canada that constitutes an offense under sections 4 to 7 of the Crimes Against Humanity and War Crimes Act [CAHWCA]). The Minister appealed the decision, and the IAD ultimately found that the Respondent was complicit in crimes against humanity committed by the NPF and thus inadmissible to Canada. The Federal Court (Eriator, 2022 FC 1154) found that the IAD’s decision was not reasonable, and returned the matter for redetermination. On redetermination, the appeal was dismissed by the IAD, upholding the ID’s original determination that the Respondent was not inadmissible under s.35(1)(a) of the IRPA. In particular, the IAD was not satisfied that “the prohibited acts committed by the NPF and/or SARS (Special Anti-Robbery Squad) were part of a widespread or systematic attack that was also pursuant to state policy.” The Minister’s appeal is the judicial review of that decision.
At the forefront, the main issue before the IAD was what constitutes a crime against humanity (CAH). In 2021, the Federal Court in Verbanov, 2021 FC 507 had interpreted CAH as requiring that it be committed pursuant to or in furtherance of a State or organized policy; termed as “policy requirement.” The second issue raised at the IAD was whether the NPF and/or the SARS had committed CAH- which the IAD answered in the negative. Given the decision reached by the IAD on the first two issues, it did not address the question of the Respondent’s complicity. The IAD concluded that the Respondent was not inadmissible under s.35(1)(a) of the IRPA because neither the NPF nor the SARS could be said to have committed crimes which qualified as a CAH, as defined in Verbanov. The “policy requirement” element had not been established.
On judicial review, Justice Roy considered the definition of CAH in accordance with CAHWCA. Justice Roy stated that “the CAHWCA defines the CAH in accordance with customary international law (ss 6(3); it then specifies (ss 6(4)) that crimes described in s 7 of the Rome Statute are crimes according to customary international law (as of July 17, 1998)). S 7 of the Rome Statute, incorporated in domestic legislation and found in a schedule to the CAHWCA, defines the crime against humanity as requiring that the commission of acts listed in ss 7(1) be pursuant to or in furtherance of a State or organizational policy. If there is another way of understanding the series of provisions which appear to be inexorably linked together, that construction has not been offered. In fact, the connection of these various provisions appears to be inescapable” (at par. 48). Justice Roy stressed the importance of Verbanov, noting that the Federal Court had already reached the conclusion that there is now a need for a “policy requirement,” over and above the four elements of a CAH as set out by the Supreme Court of Canada in Mugesera, 2005 SCC 40. In the case at hand, the IAD followed what was already set out by the Federal Court. Regardless of the “policy requirement”, the IAD also found that the Minister had failed to establish that the contested conducts constituted a widespread or systemic attack, as defined in Mugesera. Justice Roy was unable to find the IAD decision unreasonable and noted that it was a common mistake that the CAH is established on the basis of the “reasonable grounds to believe” standard. “Rather, that standard applies only to the proof of questions of fact. Hence the IAD did not discount that torture, with its brutality, happens frequently. But the analysis does not end there. As for whether or not facts give rise to a crime against humanity is a question of law” (at par. 76). In this case, what was missing was how frequent torture committed by the NFP and/or SARS became a widespread or systematic attack directed against a civilian population. The Minister’s application for judicial review was dismissed, and Justice Roy declined to certify the proposed question.
Pinto Guardado v. Canada (MCI) 2025 FC 403
In Pinto Guardado v. Canada (MCI) Justice Little evaluated the Applicants’ Humanitarian & Compassionate (H&C) decision. The Applicants were a couple from El Salvador. The husband had been previously employed as the General Director of the El Salvador Ministry of Public Health. While holding this role, he led efforts to fight corruption and to reform public health institutions. After stepping down, he successfully defended himself against an administrative investigation and numerous civil lawsuits. In 2013, he was charged by a criminal court in El Salvador in connection with the same dispute that had been the basis of the prior civil suits. The charges were withdrawn, then reinstated, then once more dismissed by the criminal court. This decision was upheld on appeal and then once more reversed in June 2017. The couple came that same year to Canada and unsuccessfully claimed asylum. Subsequently, they were unsuccessful with their H&C and Pre-Removal Risk Assessment (PRRA) applications. The Applicants did not pursue judicial review of the negative PRRA.
On judicial review, Justice Little found the Officer’s hardship assessment to be unreasonable. The Applicants submitted that they would be subject to continued political persecution in El Salvador and that the decades long campaign to discredit and exclude the husband had made it impossible for him to do business or secure work in the country. The Applicants had exhausted all their financial resources in defending cases and were dependant on the funds from their adult children in Canada. Justice Little found the Officer made cursory remarks that finding employment or financial stability was “identical” to the return of El Salvador, and that the husband could use his education, skills, and work experience to “once again secure livelihood.” The Officer’s perfunctory conclusion failed to engage with the evidence that outlined the dire financial situation the Applicants found themselves in because of the threats, harassment, charges, and investigations against the husband. Moreover, the Officer failed to take into account a statement from on the Applicants’ daughters. It was not clear whether this additional statement would have been dispositive, but it was of sufficient importance to the issue of the hardship submissions, and to an assessment of the BIOC of the Applicants’ grandchildren, that it had to be considered by the Officer. Combined, these two concerns affected the vital reasonableness of the H&C decision and were sufficient to make the decision unreasonable. The application for leave was allowed.