Zeng v. Canada (MCI) 2023 FC 75

In Zeng v. Canada (MCI) Justice Go examined the Applicants’ refused second refugee appeal redetermination decision. The Applicants had originally filed a claim for protection from the Chinese authorities based on the Principal Applicant’s (PA) identity as a Falun Gong practitioner. As proof of her allegations that the Chinse authorities were looking for her, the PA had provided a subpoena. On judicial review, Justice Go explored the RAD’s second decision, and their finding that the subpoena was fraudulent as it did not match the 2021 National Documentation Package (NDP) samples. Justice Go found that the Applicant’s subpoena had only minor immaterial differences from that of the NDP samples. Justice Go also note that the RAD failed to provide convincing and clear reasoning for why they found the subpoena did not pass their inspection or meet the requirements  relating to subpoenas in China. In conclusion, Justice Go stated that the RAD’s incorrect finding that the subpoena was fraudulent affected the RAD’s decision making process. It called into question the Applicants’ sur place claim and forward-looking risk, and disregarded the PA’s knowledge of the Falun Gong. The application for leave was allowed.

Ahmed v. Canada (MCI) 2023 FC 72

In Ahmed v. Canada (MCI) Justice Pallotta assessed the Refugee Appeal Division’s (RAD) decision to refuse the Applicant’s appeal on credibility grounds, which was a determinative issue for both the RAD and the RPD. The Applicant originally filed a claim for refugee protection on fear and persecution faced in Bangladesh as a result of his membership in the Liberal Democratic Party (LDP), and his position as their religious affairs secretary for the region of Sylhet. Ultimately, the RAD found the Applicant’s membership not credible as he had submitted two deemed fraudulent documents to establish his membership. On judicial review, Justice Pallotta argued that the RAD’s decision was unreasonable as it relied on select information from the National Documentation Package (NDP) and failed to provide convincing and clear reasoning  for why the documents were found to be fraudulent.  Second, the RAD then used this finding to discount and disregard all of the Applicant’s testimony and other documentary evidence. Justice Pallotta argued that an adverse credibility finding in itself is not enough when it coms to rejecting potentially corroborative evidence as each piece of evidence must be examined independently of the credibility concern before rejecting it. Justice Pallotta concluded that the RAD’s errors amounted to sufficient serious shortcomings and warranted the RAD’s decision to be set aside. The application for leave was allowed.

Trinidad v. Canada (MCI) 2023 FC 65

In Trinidad v. Canada (MCI) Justice Go examined the Officer’s decision to refuse the Applicant’s Humanitarian and Compassionate (H&C) Application for previous non-compliance with Immigration laws. The Applicant had originally lost her legal status is 2016 as a result of incompetent service from an immigration consultant. Shortly after losing her status, the family she worked as a caregiver for, began to exploit and abuse the Applicant, resulting in mental health issues. Only through the aid of the Human Trafficking Hotline and counselling was the Applicant able to break free. On judicial review, Justice Go found that the Officer had failed to consider that the Applicant had lost her status as a result of negligence of her former consultant. This led the Officer to then make an unreasonable finding of non-compliance with Canada’s immigration laws and detract from the positive establishment factors in the Applicant’s case.  Failing to address the nature of the non-compliance resulted in the Officer’s assessment being void of compassion or empathy to the Applicant’s sensitive circumstances.  In addition, Justice Go  added orbiter comments in the hopes that they would be looked at by the new decision maker assigned to the redetermination of the application. In particular, Justice Go highlighted the extensive evidence and submissions the Applicant provided with respect to her experience as a “trafficked worker”- evidence that the previous Officer failed to engage with. In Justice Go’s view, the above should have been considered to determine if the Applicant was a victim of trafficking and, if so, whether that experience would rise to the level of misfortune and warrant the granting of H&C relief. The application for leave was allowed.

Akbari v. Canada (MCI) 2023 FC 53

In Akbari v. Canada (MCI) Justice Régimbald examined the Refugee Protection Division’s (RPD) decision to refuse the Applicants’ reinstatement of their claim pursuant to r.60 of the RPD Rules. The Applicants’ had originally made a refugee claim in Canada, but withdrew it after the female applicant suffered a miscarriage, which caused sever mental anguish for her and her husband. I support of their reinstatement application, the Applicants had provided  written submissions, medical documentation, and a mental health assessment from the registered psychotherapist. The assessment had indicated that the female applicant was suffering from anxiety and depression, which resulted in her not being in a proper mental state to make important decision, especially when it came to withdrawing their case. On judicial review, Justice Régimbald looked at three main issues: 1) whether adequate consideration was given to the reinstatement in the interest of justice; 2) whether the analysis of the Applicants’ delay prior to applying for reinstatement was reasonable; and 3) whether an error of judgment was made by failing to take into consideration the best interests of the child (BIOC). When it came to the analysis of the interest of justice, the Court found that the Member had failed to consider the evidence demonstrating the Applicants’ lack of mental capacity to assess the enormity of withdrawing their claim. Furthermore, no justification was provided why the psychological evidence was dismissed. The record ultimately did not contain any insight or details that Justice Régimbald could rely to justify the refusal of the reinstatement. While the decision to set aside the refusal was based on the Member’s failure to properly consider interests of justice,  Justice Régimbald also commented on the delay and BIOC. Justice Régimbald noted that  although the Member reasonably calculated the delay, on its own, it was not necessarily instructive. With respect to BIOC, Justice Régimbald found that  while it may have been relevant when assessing forward-facing risk, the Member could not be criticized for not considering it as a factor in the “interest if justice” as the issue was never raised by the parties.  The application for leave was allowed.

Kamalanathan v. Canada (MCI) 2023 FC 44

In Kamalanathan v. Canada (MCI) Justice Sadrehashemi examined the Refugee Protection Division’s (RPD) decision to reject the Applicant’s claim as it had no credible basis. The Applicant had put forward a claim wherein she presented a false narrative of having just arrived from Sri Lanka where she claimed to have faced abuse an persecution. Around five month prior to the hearing, she had filed an amended narrative, with the aid of a new counsel, wherein she admitted to making a false statement in her original narrative, provided an explanation for the falsehood, explained her lack of status in India, and set out a detailed chronology  explaining her fear of persecution in Sri Lanka. On judicial review, the sole issue was whether the credibility analysis was reasonable. Justice Sadrehashemi found that the RPD’s analysis was ultimately unreasonable as it: 1) was based on an inaccurate account of key issues; and 2) relied on a generic negative inference that failed to reference any evidence. The application for leave was allowed.

Pasha v. Canada (MCI) 2023 FC 43

In Pasha v. Canada (MCI) Justice Diner reviewed both the Refugee Protection Division’s (RPD)  and the Refugee Appeal Division’s (RAD) decisions to uphold the refusals of the Applicants’ claim on the grounds of a viable IFA in Hyderabad. The Applicants had initially made a claim based on persecution at the hands of extremist militant organizations and family members who were members of said organizations. On judicial review, Justice Diner stated that the key issue came down to whether the extremist groups could locate the Applicants in Hyderabad. Justice Diner found that the RAD had failed to examine evidence in a UNHCR document located in the NDP package, which had indicated that generally no viable IFAs existed in Pakistan for individuals targeted by militant extremist groups such as SSP and LeJ. This was the central issue raised by the Applicants on appeal, and the RAD made a fatal flaw in overlooking this evidence when it came to the viability of the IFA. The application for leave was allowed.