Li v. Canada (MCI) 2023 FC 957
In Li v. Canada (MCI) Justice Manson examined the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant had originally entered Canada in 2016, along with his father, and sought asylum based on persecution by the Chinese authorities for being followers of the Church of the Almighty God. The claim was refused on credibility grounds, and the Refugee Appeal Division (RAD) dismissed the appeal. The Applicant’s father passed away in 2017 and five months later, the Applicant learnt from his stepmother that the Chinese authorities had come to her home, twice. The Chinese authorities had asked about their whereabouts and accused them of engaging in Church of the Almighty God activities in Canada. The Applicant submitted a PRRA application in 2021, which included evidence of his continued support of the Church of the Almighty God, a letter from his stepmother informing of the Chinese authorities continued search for the Applicant, and updated country conditions. The country conditions focused on the deteriorating religious freedoms in China and how the Applicant’s adherence to the Church of the Almighty God placed him in serious risk of arrest, detention, and abuse. The Officer denied the application without an oral hearing. On judicial review, Justice Manson found that in this case, an oral hearing was warranted as the Applicant’s evidence engaged in all three prescribed factors of s.167 of the IRPR. As the Officer did not believe the Applicant’s new evidence or central claim, this raised serious issues regarding credibility. Justice Manson noted that while the Officer was entitled to rely on the Refugee Protection Division’s (RPD) credibility finding, the new evidence raised fresh credibility concerns and warranted an oral hearing. Failing to do so was unreasonable. The application for leave was allowed, with the matter sent back for redetermination after an oral hearing had taken place.
Mohammed v. Canada (MCI) 2023 FC 956
In Mohammed v. Canada (MCI) Justice Norris reviewed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of Ghana, who sought asylum on fear of persecution as a bisexual man. The claim was refused on credibility grounds, and the Refugee Appeal Division (RAD) dismissed the appeal. On judicial review, Justice Norris found that the RAD’s decision had three fundamental flaws. First, the RAD erred in finding the Applicant’s bisexual claim was not credible, using the absence of evidence to support the finding that the Applicant had “not demonstrated his sexual orientation.” Justice Norris found the RAD’s finding was inferred on the application of the Difference, Stigma, Shame, or Harm (DSSH) model. This model was not mentioned in the proceedings before the RPD, nor the RAD. Neither did the RAD explain what this model was or how it was to be used. This alone, Justice Norris argued, was a serious issue, leaving a fundamental gap in the RAD’s reasoning. Additionally, based on public sources regarding the DSSH model, it was clear to Justice Norris that the RAD had misused the model. The second flaw in the RAD’s reasoning was regarding the credibility of the Applicant’s account of disclosing his bisexuality. The RAD had based their finding on stereotypical reasoning and unfound generalizations of how Muslim men were likely to behave. Third, the RAD erred in concluding that the Applicant was not bisexual as he had only one same-sex partner. The unstated premise behind the RAD’s reasoning was that bisexuals were more likely to have had more than one same-sex relationship. Justice Norris found that there was no support for this premise. The application for leave was allowed.
Jalloh v. Canada (MCI) 2023 FC 948
In Jalloh v. Canada (MCI) Justice Heneghan assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant had appealed the refusal, arguing that the Officer had failed to consider the “compelling reasons” exception as per s.108(4) of IRPA. The Applicant was a citizen of Sierra Leon, where he had been a child soldier. He came to Canada in 2007, under the Family Class category, but lost his permanent resident status due to a criminal conviction. The Applicant argued that while the Officer accepted the Applicant’s past, the Officer had failed to consider the compelling reasons exception when looking at the overall PRRA application. In response, the Minister had argued that the Officer was not obligated to do so as the Applicant did not obtain his status via the asylum route and was never found to be a Convention refugee. Justice Heneghan disagreed with the Minister, and referred to Yamba, 2000 CanLII 15191 (F.C.A.) quoting : “In summary, in every case in which the Refugee Division concludes that a claimant has suffered past persecution, but this [sic] has been a change of country conditions under paragraph 2(2)(e), the Refugee Division is obligated under subsection 2(3) to consider whether the evidence presented establishes that there are “compelling reasons” as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes subsection 2(3). That being said the evidentiary burden remains on the claimant to adduce the evidence necessary to establish that he or she is entitled to the benefit of that subsection.” The application for leave was allowed.
Ghaddar v. Canada (MCI) 2023 FC 946
In Ghaddar v. Canada (MCI) Justice Gascon explored the Applicant’s mandamus application. The Principal Applicant (PA) and her family were citizens of Lebanon, who had originally submitted their permanent residence application in 2016, which remained in processing. On judicial review, Justice Gascon agreed that the Applicants were owed a clear public duty. The delay, which was more than six years, was unreasonable and unacceptable, with IRCC failing to provide a reasonable explanation or justification for the delay. The hardship faced by the Applicants tilted the balance of convenience in their favor. Justice Gascon ordered that IRCC complete the processing of their application within 90 days, and for the Minister to pay the Applicants’ costs in the amount of $1000.00. Justice Gascon declined to grant other declaratory remedies, as the order of mandamus was a sufficient remedy.