Edirimanna v. Canada (MCI) 2023 FC 1339
In Edirimanna v. Canada (MCI) Justice Turley reviewed the Applicant’s cessation decision. The Refugee Protection Division (RPD) had ceased his Convention refugee status on the grounds of reavailment. On judicial review, Justice Turley found that the RPD had failed to meaningfully engage with the Applicant’s stated purpose for returning to Sri Lanka when assessing his voluntariness under s. 108(1)(a) of IRPA. The Applicant had clearly presented that he felt compelled to return to Sri Lanka to respect his dying uncle’s wishes to see the Applicant before he passed. The Applicant went on to elaborate that his uncle was like a father to him after his biological father had abandoned his family. Rather than assessing the Applicant’s voluntariness, the RPD had focused on their analysis of whether the Applicant actually cared for, or needed to care for, his uncle. However, the Applicant never claimed that he returned to Sri Lanka to care for his uncle. Justice Turley concluded that the RPD had failed to consider whether the Applicant’s action amounted to an exceptional circumstance rebutting the presumption of reavailment. Moreover, Justice Turley found that the RPD erred in finding that the Applicant’s renewal of his Sri Lankan passport, prior to claiming asylum, was relevant in assessing voluntariness. The application for leave was allowed.
Omar v. Canada (MPSEP) 2023 FC 1334
In Omar v. Canada (MPSEP) Justice Turley examined the Applicant’s vacation decision. The Refugee Protection Division (RPD) had vacated his status after finding the Applicant had misrepresented his citizenship and identity. The RPD found that he was not who he claimed to be, a citizen of Somalia, but rather a Kenyan citizen, with an entirely different name. On judicial review, Justice Turley found that the RPD erred in vacating the Applicant’s status on the sole basis of photographic comparison and failed to consider and assess the evidence supporting the Applicant’s Somali identity and citizenship. Justice Turley found that the RPD’s observations regarding the photographs were general and superficial. The RPD’s reasoning was inadequate when it came to identity, and even starker when considering the RPD approached the remaining evidence already from a viewpoint of having already decided on the Applicant’s true identity.
While not definitive, Justice Turley was also concerned about the identical phraseology used by the same RPD panel Member in this case and in Hirsi, 2023 FC 843, when comparing facial features. The almost identical wording by the RPD in both cases underscored the very general nature of its photographic comparison analysis and lack of personalization, undermining the reasonableness of the analysis. What’s more, during the virtual hearing, the Panel had failed to take into consideration the inherent limitations of observing an individual’s facial features virtually. In addition, the RPD failed to state how its observation of the Applicant’s facial features factored to its comparison of the photographs.
In addition, Justice Turley found that the RPD had erred by failing to consider the Applicant’s additional evidence, which included his Somali passport and birth certificate. The Applicant had also provided an affidavit from a guarantor, a Somali citizen who claimed to know the Applicant and his family as Somali citizens. The Applicant had stated that a guarantor was required to establish his Somali identity and obtain the passport and birth certificate. Contrary to the established jurisprudence, the RPD had failed to consider whether there were valid reasons to question the authenticity of the documents and relied on general statements in the National Documentation Package (NDP) about “widespread fraud.” Justice Turley also found that the RPD failed to consider the circumstances of how the documents were obtained, even though the Applicant had provided detailed evidence about the process. Moreover, the RPD had misconstrued the NDP evidence on Somalian passports. Finally, the RPD had failed to consider the reliability and credibility of the guarantor’s affidavit, discounting it and other identity documents due to the Applicant having a “history of misrepresentation before the Board.” Justice Turley found this to be circular reasoning. The application for leave was allowed.
Shah v. Canada (MCI) 2023 FC 1332
In Shah v. Canada (MCI) Justice Norris explored the Applicant’s cessation decision. The Applicant was found to be a Convention refugee on the basis a fear of persecution in Pakistan because of his sexual orientation. The Applicant became a permanent resident in April 2019. On August 23, 2019, the Applicant returned to Pakistan using his Pakistani passport and stayed until October 5, 2019. The Applicant then travelled to Dubai on the same passport, before returning to Canada at the end of October. In 2020, the Minister submitted a cessation application which the RPD granted on the basis of reavailment. During the cessation hearing the Applicant explained that he had returned to Pakistan because his then five-year-old son (who lived with the mother) was seriously ill and he believed his son might die. The Applicant stated that he took precautions in Pakistan, to avoid his agents of persecution. While the RPD found that the evidence did not establish that the Applicant’s son was as ill as the Applicant believed, the RPD did not express doubt that the Applicant honestly believed that his son was seriously ill, or that he took precautions while in Pakistan. Nevertheless, the RPD concluded that the Applicant’s return was voluntary because the evidence did not support the finding that his presence in Pakistan was “absolutely necessary” to his son’s care.
On judicial review, Justice Norris found that the RPD had used an unreasonably narrow scope when it came to the circumstances. The RPD failed to consider how compelling the reasons were from the Applicant’s perspective. Secondly, the RPD failed to address the Applicant’s intention to re-avail himself of Pakistan’s protection, instead choosing to conflate the issue with whether the Applicant knew he should not return to Pakistan because he would be at risk there. Justice Norris argued that the two issues were both logically and factually distinct. It does not follow from the fact that the Applicant returned to Pakistan knowing that there was risk to his personal safety also knew that doing so would put his status in jeopardy. This flawed analysis did not provide a reasonable basis for the conclusion that the Applicant intended to re-avail himself of Pakistan’s protection. Even if the circumstances around the Applicant’s actions did not render them involuntary, they may still have been relevant to the determination of whether the Applicant willing accepted the protection of Pakistan. Travelling to Pakistan for compelling reasons such as a serious illness of a family member may have different significance for whether the Applicant had rebutted the presumption of reavailment than travel for a more frivolous reason. Justice Norris concluded that the RPD failed to recognize this nuance and chose to conclude that since the Applicant did not establish that his actions were involuntary, his actions did not rebut the presumption of reavailment. The application for leave was allowed.
Mohamed v. Canada (MIRC) 2023 FC 1330
In Mohamed v. Canada (MIRC) Justice O’Reilly examined the Applicant’s vacation decision. The Applicant was a citizen of Somalia who claimed that he had obtained refugee status in the United States (US) in 1992 using a fake identity. In 1994 the Applicant made a successful asylum claim in Canada and obtained refugee status in 1995. At the time of the claim, he had informed the CBSA Officer that he had not made any claims elsewhere and was only in the US for a week. In 2019, the Minister had asked the Refugee Protection Division (RPD) to vacate the Applicant’s status under s.109(1) of IRPA. The RPD granted the Minister’s application, finding that the Applicant had secured refugee status through misrepresentation of material facts, and if the true facts were known, the Applicant would have been excluded from refugee protection based on Article 1E of the Refugee Convention. The RPD did not deem in necessary to see if other available evidence might have been sufficient to grant the Applicant refugee status under s.109(2) of IRPA.
On judicial review, Justice O’Reilly noted that on an application to vacate an Applicant’s refugee status, the RPD was to first determine whether the original decision grating protection was a result of misrepresentation or of withholding of material facts relating to a relevant matter. This involves a three-prong approach: 1) a finding that there was misrepresentation or withholding of material facts; 2) a finding that the facts related to a relevant matter; and 3) a finding that there is a casual connection between the misrepresentation or lack of disclosure and the favorable result. Justice O’Reilly found that the RPD had failed to satisfy the first prong, as the Applicant’s failure to disclose that he had obtained status in the US using a false identity was not a material representation.
Justice O’Reilly asked: what would happen if the Applicant had advised the original decision maker that he had made a successful claim for asylum in the US based on a fake identity? Justice O’Reilly found that the decision maker would have likely made inquiries to determine the Applicant’s true identity, but it could have found that the Applicant was excluded from asylum in Canada only if he had a valid claim to status in the US. At the vacation hearing, the evidence before the tribunal suggested that he had no such claim; still, the RPD declined to address the issue. Justice O’Reilly found that in order for the RPD to grant the Minister’s application, the RPD would have had to 1) find that the Applicant has a valid claim to permanent residency in the US; and 2) find that the identity the Applicant used to make his Canadian claim was false. The RPD made no such findings. Justice O’Reilly concluded that the decision was unreasonable as it failed to address whether the Applicant’s lack of disclosure amounted to material misrepresentation. The application for leave was allowed.
Benoit v. Canada (MCI) 2023 FC 1323
In Benoit v. Canada (MCI), Justice Norris reviewed the Applicants’ Humanitarian and Compassionate (H&C) decision. The Applicants, a mother, and her eldest and younger daughters, were citizens of Saint Lucia. Arriving in Canada in 2012, the mother had two more children, and her eldest daughter had had two children of her own. They made an unsuccessful H&C application. On judicial review, the determinative issue was the best interests of the child (BIOC). Justice Norris found that the Officer did not meaningfully engage with the Applicants’ attestation that the best interests of the four Canadian-born children would be adversely affected by their removal to Saint Lucia and expose them to the unfavorable social and economic conditions in Saint Lucia. The Officer, however, found that with the support of their primary caregiver, their young age and inherent resilience, the children “would be able to successfully adapt to their life in Saint Lucia.” Justice Norris found the Officer’s finding to be unreasonable. The Officer unreasonably assessed the impact of leaving Canada on the eldest daughter’s two children, given that it would separate them from their father. Even if the evidence of the father’s participation in their lives was poor, it was still unreasonable for the Officer to conclude that separation from him would have had no impact on their best interests. The Applicants had also argued that leaving Canada would be disruptive to the younger daughter’s high-school education, which she was pursuing online. However, the Officer found “little objective evidence” to indicate that the younger daughter could not continue her online studies remotely, in Saint Lucia. Justice Norris found that the Officer had assumed, without any supporting evidence, that the younger daughter would still be able to attend school virtually even though she was no longer a resident of Toronto. Even if the above factor was not determinative, is still needed to be reasonably assessed and the Officer’s failure to do so undermined the reasonableness of the decision as a whole. The application for leave was allowed.
Connell v. Canada (MCI) 2023 FC 1316
In Connell v. Canada (MCI) Justice Turley reviewed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was a dual citizen of Barbados and Saint Lucia, who first entered Canada as a visitor in 2012 to escape from her abusive husband. The Applicant’s son remained in Barbados, living with the Applicant’s friend, and she sent back financial support for her son. The Applicant was diagnosed with depression, anxiety, and hypertension. In support of her H&C application, the Applicant submitted a psychiatric consult report that indicated she had met the diagnostic requirements for PTSD. The report went on to state that if the Applicant was to be returned to Barbados, it was likely that her mental state would worsen. In her legal submissions, the Applicant requested she be granted a Temporary Resident Permit (TRP) should she not meet the H&C requirements for permanent residence. On judicial review, Justice Turley found that the Officer erred in assessing the best interests of the child (BIOC). The Officer also failed to consider the adverse impact on her mental health if she was required to leave Canada. “Where there is evidence before an officer to the effect that a parent’s mental health will deteriorate, the officer needs to assess this in the best interests of the children analysis” (at para. 19). The Officer’s failure to consider this important factor when making the BIOC assessment made the decision unreasonable. Moreover, when it came to the hardship analysis, Justice Turley found that the Officer’s analysis of the Applicant’s mental and physical well being did not withstand examination. Lastly, the Officer failed to consider the Applicant’s request for a TRP- which was a breach of procedural fairness. The application for leave was allowed.