St. Brice v. Canada (MCI) 2023 FC 1139
In St. Brice v. Canada (MCI), Justice Régimbald reviewed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant was a 31-year-old bisexual man, with a cognitive impairment, who feared persecution in St. Lucia due to his sexual orientation. The Applicant had been threated multiple times in St. Lucia, and the police refused to aid him. The Officer refused the Applicant’s PRRA on the grounds that the Applicant would be able to get state protection in St. Lucia-a country where homosexuality is a criminal offence under s.133 of St. Lucia’s Criminal Code (CC133). On judicial review, Justice Régimbald found two issues with the Officer’s decision. Firstly, the Officer breached the Applicant’s procedural fairness rights by relying on independent and undisclosed research. It was not clear what sources the Officer relied on when concluding that it was “unanimous” that CC133 was not enforced, resulting in the Applicant being unable to rebut the research of the Officer. Second, the finding that the Applicant did not rebut the presumption of state protection was unreasonable. The Officer had implied that the burden of proof was directly proportional to the level of democracy in St. Lucia and that because St. Lucia was considered a free and fair democracy, the burden was higher. However, Justice Régimbald noted that democracy is not a poxy for state protection. The Officer still had to conduct a proper analysis of available operational state protection. There was no analysis as to how, despite CC133, there was adequate state protection at an operational level, when considering the evidence present and information existing in commonly cited sources. Moreover, Justice Régimbald found that had the Officer applied the proper legal test, it is possible that they would have found that the Applicant had rebutted the presumption of state protection by repeatedly, and unsuccessfully, trying to seek help from the police. The application for leave was allowed.
Wen v. Canada (MCI) 2023 FC 1127
In Wen v. Canada (MCI), Justice Diner examined the Applicants’ Humanitarian and Compassionate (H&C) decision. The Applicants had originally come to Canada in 2019 to visit their grandson, intending to stay only for a few months. However, their departure was delayed due to COVID-19. The Applicants stayed to provide primary care to their grandson, after his mother had left the family home in March 2021. The Applicants maintained their status throughout their stay, submitting their H&C application in 2021, so that they could continue to live with their son and assist in the care of their grandson. Unfortunately, the Officer refused their application. On judicial review, the Applicants argued that the Officer’s decision was not responsive to the significant evidence they had provided when it came to the best interests of the child (BIOC), including a psychologist’s report that concluded how essential the Applicants were to the well-being of their grandson. Justice Diner agreed with the Applicants, noting that the psychologist’s report pointed out the interdependency between the child and his grandparents, their primary caregiver role, and the serious psychological harm to the child should they be separated. Justice Diner concluded by finding that the Officer failed to properly engage with the evidence, and that the Officer’s BIOC analysis was fundamentally flawed. The application for leave was allowed.
Wei v. Canada (MCI) 2023 FC 1125
In Wei v. Canada (MCI), Justice Gascon assessed the Applicants’ Humanitarian and Compassionate (H&C) decision. The Principal Applicant (PA), her husband, and their children came to Canada in 2017. While in Canada, the PA was diagnosed with severe major depressive disorder with psychotic features and was receiving ongoing psychiatric treatment. The Applicants submitted their H&C application, but it was ultimately refused. On judicial review, the determinative issue was the best interest of the child (BIOC). Justice Gascon found that the Officer had failed to take into consideration how the PA’s possible removal would affect the PA’s mental health, and the cascading effect this would have on the BIOC. The Officer ignored the specific arguments that were made by the Applicants in their submissions. The Officer’s failure to deal with this factor in the BIOC assessment was a flaw in the overall analysis and rendered the decision unreasonable. Moreover, given the faulty BIOC assessment, the Officer’s weighing exercise of all the factors, was impaired. The application for leave was allowed.
Sagibo v. Canada (MCI) 2023 FC 1118
In Sagibo v. Canada (MCI), Justice Diner explored the Applicant’s study permit decision. The Applicant had relied on Monteza, to argue that it was inappropriate for the Officer to act as a “career counselor” by insisting that her proposed study plan was “vague and general” and would not likely lead to career advancements. Justice Diner agreed with the Applicant and found that the Officer had failed to address the Applicant’s two assertations: 1) the Applicant’s instructors in the Philippines lacked workplace experience in the field of business; and 2) international credentials and experience are valued by businesses in the Philippines in the Applicant’s desired field. Considering the Applicant’s detailed submissions, wherein she explained and outlined how the proposed studies would be complementary to her degree and work experience, the Officer’s conclusions were unjust and unsupported. The application for leave was allowed.