Anvar v. Canada (MCI) 2023 FC 1194
In Anvar v. Canada (MCI), Justice Go examined the Applicant’s cessation decision. The Applicant was found to be a convention refugee in 2005 and resettled in Canada in 2006. In 2022, the Refugee Protection Division (RPD) had found that the Applicant had voluntarily reavailed himself as he had applied and received three Afghan passports and travelled to Afghanistan five times between 2007 and 2015. On judicial review, Justice Go found that the RPD had erred by failing to consider the Applicant’s lack of knowledge of the consequences of travelling on an Afghan passport. The Respondent countered that given the limited evidence to rebut the presumption of reavailment, the RPD’s failure did not give rise to a reviewable error. However, in consideration of the potential significance of the evidence concerning the Applicant’s awareness of the consequences of his actions, Justice Go determined that the appropriate remedy was to send the matter back for redetermination. The application for leave was granted.
Olusola v. Canada (MCI) 2023 FC 1191
In Olusola v. Canada (MCI), Justice Grammond assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant submitted a PRRA based on fear of persecution in Nigeria as a bisexual man. The Officer refused the application due to insufficiency of evidence, without conducting a hearing. Justice Grammond noted that it can be difficult to distinguish between a negative credibility finding and insufficiency of evidence as the manner in which PRRA Officers describe their findings is not determinative. Justice Grammond referenced Ahmed, 2018 FC 1207, in which Justice Norris suggested the following method to differentiate between a credibility finding and an insufficiency of evidence finding (at para. 31 of Ahmed): “One useful test in the present context is for the reviewing court to ask whether the factual propositions the evidence is tendered to establish, assuming them to be true, would likely justify granting the application for protection. If they would not, then the PRRA application failed, not because of any sort of credibility finding, but simply because of the insufficiency of the evidence. On the other hand, if the factual propositions the evidence is tendered to establish, assuming them to be true, would likely justify granting the application and, despite this, the application was rejected, this suggests that the decision maker had doubts about the veracity of the evidence.” In the case at hand (Olusola v. Canada (MCI)), if the facts alleged in the Applicant’s affidavit were true , they would establish that the Applicant had been in a homosexual relationship for a significant period of time; that this fact had become know to the Applicant’s father, the police, and other individuals in the community; and that the Applicant’s parents were attacked as a result. When combined with the objective evidence of persecution of the LGBTQ+ members in Nigeria, this would likely result in granting the PRRA. By finding the evidence as insufficient and requiring corroboration, the PRRA Officer made veiled credibility findings. Moreover, Justice Grammond noted that when expecting corroborative evidence to be available, one must also consider the criminalization of homosexuality in Nigeria and that potential witnesses may be reluctant to come forward as it could result in incriminating themselves or others. The application for leave was granted.
Kaur v. Canada (MCI) 2023 FC 1189
In Kaur v. Canada (MCI), Justice Rochester reviewed the Applicants’ Refugee Appeal Division (RAD) decision. The Applicants- a mother and her two adult children- were citizens of India who came to Canada in 2017 to visit their relatives. While still in Canada, the Applicant’s husband/father was arrested in India on suspicion of drug trafficking. Upon release from custody, he subsequently disappeared. The Applicants put forward a refugee claim, alleging that if they were to return to India, they would be persecuted or seriously harmed by the police in an attempt to locate or obtain information about the whereabouts of the husband/father. The decisive issue for the Refugee Protection Division (RPD) was credibility. The RAD however found the decisive issue to be prospective risk. The RAD concluded that even if it were to accept as credible that the father had been arrested and subsequently disappeared, there was not sufficient evidence to show a serious possibility that the police would persecute the Applicants or subject them to a s.97 risk on a forward-looking basis. On judicial review, Justice Rochester found that the RAD had breached its duty of procedural fairness by failing to provide the Applicants an opportunity to respond on the issue of prospective risk. Justice Rochester noted that it can be difficult to distinguish between the RAD raising a new issue versus the RAD expanding or adding to an existing issue. In this case, and in light of the case law on what constitutes a new issue, Justice Rochester found that the RAD raised a new issue- the fact that prospective risk is part of the essence of a refugee claim does not prevent it from constituting as a new issue on appeal. The application for leave was granted and the Applicants were provided with an opportunity to make submissions on prospective risk.
Belay v. Canada (MCI) 2023 FC 1154
In Belay v. Canada (MCI), Justice Elliott explored the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of Ethiopia, who had fled to Germany and was granted temporary status on humanitarian grounds. However, his status expired sometime after he left the country. Subsequently, the Applicant was unsuccessful in making a refugee claim in the United States, and upon arrival in Canada, initiated a claim for asylum. The Applicant’s claim was denied by the Refugee Protection Division (RPD) under Article 1E of the Refugee Convention due to his status in Germany. The decision was returned to the RPD for redetermination. On redetermination, the RPD once more denied the claim under Article 1E, and the RAD upheld the decision. On judicial review, Justice Elliott found the decisive issue to be procedural fairness. The RAD had found serious deficiencies in the RPD’s redetermination decision, but noted that it could remedy the breach. In Justice Elliott’s view, the issues identified by both the Applicant and the RAD were so sever that they amounted to a breach of the Applicant’s rights to a de novo hearing. The RAD’s finding that it could remedy the breach, without hearing from the Applicant or putting the Applicant on notice, was a further breach of procedural fairness. The application for leave was granted.