Tofa v. Canada (MCI) 2023 FC 135
In Tofa v. Canada (MCI) Justice Mosley examined the Refugee Appeal Division’s (RAD) decision to refuse the Applicants’ asylum appeal, upholding the RPD’s decision that there were significant discrepancies and inconsistencies in the Applicants’ testimony and evidence. The Applicants were citizens of Bangladesh, who fled the country as they feared persecution from the paramilitary organization, Rapid Action Battalion (RAB). On judicial review, Justice Mosley found that while the RAD did make an unreasonable implausibility finding, the Court had more serious concerns with the RAD’s treatment of the documentary evidence. Justice Mosley took concern with the RAD’s view that the RPD was allowed to discount corroborating documents because of the Principal Applicant’s (PA) credibility. While there is case law to support the proposition that once a credibility finding is made, it is up to the Tribunal to determine if the corroborative evidence is insufficient to outweigh credibility, Justice Mosley’s argued that another line of reasoning holds that the Tribunal must consider documentary evidence supporting the Applicant’s story prior to reaching a conclusion on credibility- as in this case. Justice Mosely also found that there were indications of “inverted reasoning” with respect to the other documents the Applicants had submitted in support of their claim. The Applicants’ judicial review was granted.
Ehigiator v. Canada (MCI) 2023 FC 308
In Ehigiator v. Canada (MCI) Justice Régimbald assessed the Refugee Appeal’s Division’s (RAD) decision to refuse the Applicant’s asylum appeal due to credibility concerns. The Applicant was a citizen of Nigeria, who feared persecution from her ex-partner, a police officer and member of the Aye Confraternity (criminal organization) due to domestic abuse. The Applicant had put forward multiple documents in support of her domestic abuse allegations, including two medical reports from Nigeria, evidence from a pastor whose church she sought refuge at, as well as a medical report from a Canadian doctor which had indicated that the Applicant was severely depressed and under medication, all which could affect her ability to testify. On judicial review, Justice Régimbald found that the RAD selectively relied on evidence to reject the Applicant’s credibility and failed to explain why other parts of the Applicant’s reports were not credible. The RAD had also failed to explain why the first-hand evidence from the pastor (on the continuing threats for her ex-partner, and the church raising funds for the Applicant’s travel to Canada) was deemed not relevant or reliable. Lastly, the RAD had asserted that the Applicant’s past trauma could not explain the contradictions in the Applicant’s testimony, despite having Canadian medical reports that contradicted this assertion. In conclusion, Justice Régimbald found that the RAD had failed to assess the evidence holistically and contextually, dismissing evidence that contradicted the Tribunal’s findings. The Applicant’s judicial review was granted.
Bai v. Canada (MCI) 2023 FC 304
In Bai v. Canada (MCI) Justice Ahmed reviewed the Refugee Appeal’s Division’s (RAD) decision to refuse the Applicant’s asylum appeal due to credibility concerns. The Applicant was a citizen of China and a practitioner of Falun Gong. Fearing persecution from the Chinese authorities, the Applicant had fled China in December 2014, arriving in Canada and resuming her Falun Gong practice. In 2015, she learned that a neighbourhood committee officer was looking for her and had told her family that she was expected to report to them upon her return. The Applicant argued that this showed the authorities’ interest in her, and she feared that her return to China would result in persecution and barment to practice Falun Gong. The Applicant’s claim was refused on credibility concerns. The RAD also dismissed the Applicant’s appeal and upheld the decision of the Refugee Protection Division (RPD). On Judicial review, Justice Ahmed found that the RAD erred by failing to make their own independent assessment of the Applicant’s claim, basing their overall reliance on the RPD’s analysis. This act resulted in the RAD’s decision being unjustified and lacking in transparency. The Applicant’s judicial review was granted.
Cugliari v. Canada (MCI) 2023 FC 263
In Cugliari v. Canada (MCI) Justice Go examined the Immigration Division’s (ID) decision to find the Applicant inadmissible to Canada under s. 37(1)(a) of IRPA. The Applicant had outstanding charges in Italy for “Organization, Armed Robbery and Stolen Goods, “with alleged membership in a mafia-type organization, the ‘Ndrangheta. CBSA had prepared an admissibility report, pursuant to s.44(1) of IRPA, and referred the Applicant to the ID for a hearing. The ID found the Applicant inadmissible to Canada under s. 37(1)(a) of IRPA. The Applicant challenged both decisions, taking issue with the finding that he was a member of the group. On judicial review, Justice Go found that the ID did not unreasonably rely on the police opinion, nor did it err when assessing the news articles, however, the ID did err in not assessing the reliability of the organization chart prior to admitting it as evidence. Justice Go found that, contrary to the Applicant’s assertion, the ID did not fail to render a decision on the credibility of the Applicant’s testimony. Furthermore, Justice Go found that it is well within the ID’s jurisdiction to take preference of the Minister’s evidence over the Applicant’s. The ID also did not err by failing to make an equivalency assessment of the Applicant’s charges and was direct in stating that the outstanding charges would constitute as indictable offences in Canada. Justice Go also pointed out that caselaw confirms that the ID is not required to always perform an equivalency analysis. Lastly, Justice Go reviewed the issue of whether the ID’s decision should be set aside due to an error with respect to one piece of evidence. Justice Go noted that the Applicant’s reliance on Demaria, 2019 FC 489, did not support the position that one error in the ID’s evidence constituted the decision as a whole must fall. The ID’s error in not assessing the reliability of the organizational chart before admitting it as evidence was immaterial- and a different outcome could not be expected in the absence of this one error. The Applicant’s application for leave was dismissed.