Gopalakrishnan v. Canada (MCI) 2023 FC 277
In Gopalakrishnan v. Canada (MCI) Justice Ahmed examined the Refugee Appeal Division’s (RAD) decision to dismiss the Applicants’ appeal on the grounds of viable internal flight alternatives (IFA) existing in Bangalore or Mumbai. The Applicants had sought asylum on the grounds of threats, and fear of persecution from the CEO of a business enterprise and a member of the Legislative Assembly in Tamil Nadu. The Refugee Protection Division (RPD) rejected their claim, and the RAD dismissed their appeal. On judicial review, Justice Ahmed identified the determinative issue was that of the RAD’s treatment of the objective evidence. The evidence demonstrated the connection between the Indian police, the corruption of political figures, and showed how state databases could be used to locate the Applicants in the proposed IFAs. By being selective in their assessment of the evidence, the RAD’s proposed IFAs rendered the decision unreasonable. The Applicants’ application for leave and judicial review was granted.
Liu v. Canada (MCI) 2023 FC 275
In Liu v. Canada (MCI) Justice Go assessed the Refugee Appeal Division’s (RAD) decision to dismiss the Applicant’s appeal. The Applicant had sought asylum on the grounds of feared persecution from the Chinese authorities because of his political opinion and protestation against his land being expropriated. On judicial review, Justice Go found the determinative issue to be that of the RAD’s assessment of the Applicant’s documentary evidence. The Applicant had submitted three documents before the RPD in support of his allegation that he had been detained by the Public Safety Bureau in China: an administrative punishment decision, a summons, and a certificate of release. As a result of the RAD finding the summons to be fraudulent, little weight was given to the other two documents. Justice Go found the RAD’s analysis of the summons to be unreasonable, in turn tainting the assessment of the other documents, and affecting the RAD’s assessment of forward-looking risk. In addition, Justice Go addressed the question of nexus, and noted that the relevant point was not the Applicant’s motivation to protest the land expropriation, but how the Chinese authorities would view and interpret such protest. The Applicant’s application for leave and judicial review was granted.
Nekenkie v. Canada (MCI) 2023 FC 271
In Nekenkie v. Canada (MCI) Justice Brown reviewed the Officer’s decision to refuse the Applicant’s Pre-Removal Risk Assessment (PRRA) application. The Applicant had come to Canada via the United States, where he had previously applied for asylum, making him ineligible to file a claim, pursuant to s. 101(1)(c.1) of the IRPA. However, the Applicant was eligible for a PRRA with a mandatory oral hearing (s.113.01 of the IRPA). The Applicant alleged fear of persecution in Ethiopia due to: his sister’s activism against the regime, his Oromo ethnicity, and his claim for asylum in the USA. On judicial review, Justice Brown found that the Officer’s decision contained ambiguous statements that, while not outright rejected the Applicant’s evidence, cast it in a cloud of doubt. Justice Brown found that the Officer failed to grapple with the Applicant’s evidence, making the decision unreasonable. The Applicant’s application for leave and judicial review was granted.
Nader v. Canada (MCI) 2023 FC 265
In Nader v. Canada (MCI) Justice Go examined the Refugee Appeal Division’s (RAD) decision to uphold the Refugee Protection Division’s (RPD) finding that the Applicant was excluded under Article 1F(b) of the Refugee Convention for having committed serious non-political crimes. The Applicant was a citizen of the Iraq, who came to reside in the UK in 2003 after his father had managed to secure permanent residence in the country. In 2017, the Applicant was arrested and charged in the UK with the handling of stolen goods (11 motorcycles with an estimated value of $80,000 CAD), possession of a controlled substance (cannabis) with intent to supply, and possession of a prohibited weapon (a taser gun). While the Applicant plead guilty to the weapons charge, he plead not guilty to the other two. The Applicant had a trial date set for July 2018, to address the two outstanding charges, but he left the UK for Iraq shortly prior to the trial date. The Applicant then travelled in November 2018 from Iraq to Canada and sought asylum upon arrival. On judicial review, Justice Go found that the RAD made an error by grouping unrelated, non-serious crimes in their finding. Justice Go further found that by aggregating the taser and cannabis charges with the handling of the stolen goods charge, the RAD failed to properly take into consideration post-offense conduct. The above error was determinative to the application, and Justice Go concluded that the RAD’s assessment of the contextual factors was unreasonable. The Applicant’s application for leave and judicial review was granted.
Singh v. Canada (MCI) 2023 FC 239
In Singh v. Canada (MCI) Justice Ahmed reviewed the Refugee Protection Division’s (RPD) decision to allow the Minister’s cessation application. The Applicant was a citizen of India that arrived in Canada in 2009, successfully claiming asylum, and becoming a permanent resident in 2012. In 2013, he secured an Indian passport and made two subsequent trips back to India. This resulted in the Minister applying for cessation of his refugee status in 2015. The cessation application was set to be heard on March 10, 2020, but the Minister failed to appear. As a result, the Applicant’s counsel requested that the cessation application be deemed abandoned. The RPD wrote to the Minister, requesting an explanation for her failure to appear, which the Minister responded to, claiming that her lack of appearance was a result of human error and asking that the hearing be rescheduled. In response, the Applicant’s counsel took the position that the cessation should be declared abandoned. In August 2021, the RPD issues a decision, dismissing the Applicant’s abandonment application. On judicial review, Justice Ahmed explored whether i) the RPD erred by finding that the delay did not ammount to an abuse of process, and ii) failed to properly address and question the Minister’s explanation for her non-appearance. With respect to this first issue, Justice Ahmed found that the high threshold for abuse of process was not met by the Applicant. The Applicant failed to provide sufficient evidence to show that the delay in cessation proceeding was unfair to the point that it equated a breach in justice. With respect to the second issue, Justice Ahmed found that the Applicant’s submissions amounted to a request to verify the Minister’s veracity when it came to the explanation provided for non-appearance, and in turn, reweigh the evidence. Ultimately, Justice Ahmed found the RPD did not breach the duty of fairness. The RPD’s discretion to take necessary actions in situations where there were no governing rules, did not guarantee that that outcome would favour the Applicant. The RPD’s actions showed equal treatment of the parties in the assessment of the application. Justice Ahmed concluded by finding that the RPD’s refusal of the abandonment application was reasonable and did not ammount to a breach of procedural fairness. The Applicant’s application for leave was dismissed.
Pena v. Canada (MCI) 2023 FC 180
In Pena v. Canada (MCI) Justice Brown assessed the Refugee Protection Division’s (RPD) decision refused the Applicants’ claim for asylum for failing to rebut the presumption of state protection in Columbia. On judicial review, Justice Brown found the determinative issue to be that of state protection. First, Justice Brown noted that the RPD failed to mention the correct legal test for state protection. Justice Brown explained that is not possible to do a proper assessment of state protection without setting out the constraining law as to what state protection means. State protection entails state protection at an operational level. Nowhere in the reasons did the RPD define state protection, making the decision, in this respect, unreasonable. The second issue that Justice Brown noted was the RPD’s failure to grapple with the country condition evidence, which had shown inadequate state protection in Columbia. The Applicants’ application for leave and judicial review was granted.