Maan v. Canada (MCI) 2023 FC 1434
In Maan v. Canada (MCI), Justice Rochester examined the Applicant’s Refugee Appeal Division (RAD) decision. The determinative issue for both the Refugee Protection Division (RPD) and the RAD was credibility. The Applicant had testified that she was released from prison, in India, by paying a “bribe.” Her father’s affidavit, in support of the matter, also mentioned the use of a bribe. However, in the Applicant’s Basis of Claim (BOC) narrative, she had used the term “bail” instead of “bribe”. The Applicant had explained that she had a volunteer interpreter help her fill out her BOC and that the word “bail” was used mistakenly instead of “bribe.” The Applicant argued that this was a minor mistake that only appeared in the BOC and the correct term was used elsewhere. Justice Rochester found this was consistent with the Applicant’s narrative, that her detention was illegal. This was also consistent with the National Documentation Packages (NDPs) which discussed the detailed practice of using bribes by corrupt police officers. The RAD had concluded that based on the “bribe/bail” discrepancy, the Applicant no longer benefited from the presumption of truth. However, Justice Rochester found that the RAD’s credibility finding, which was solely based on the use of the word “bail” in the Narrative, failed to meet the standard of reasonableness. The application for leave was allowed.
Hemond v. Canada (MCI) 2023 FC 1432
In Hemond v. Canada (MCI), Justice Norris reviewed that Canadian Association of Refugee Lawyers’ (CARL) intervention application. The key issue raised was whether the determination by a Member of the Immigration Division (ID) that the Applicant was a compellable witness at a detention review was unreasonable. There was no disagreement that the application for leave was moot as the Applicant had been released and has since left Canada. However, Counsel submitted that the Court should exercise their discretion to hear and decide the application on its own merits. Counsel for the Applicant also supported CARL’s intervention. The Respondent was opposed to CARL’s intervention and maintained that the application should be dismissed as moot. Both parties agreed that the elements of 1) genuine interest, 2) usefulness, and 3) consistency with the interests of justice constituted as the test to be applied for the intervention. CARL’s genuine interest in the matter was accepted by the Respondent and Justice Norris. The issues to be addressed were usefulness and consistency with the interest of justice.
CARL had proposed to address the implications of Jaballah (Re), when it came to the matter of whether a detainee was a compellable witness at a detention review. Justice Norris, after having reviewed the detailed outline of CARL’s submissions and the Applicant’s further memorandum, was satisfied that the two matters were sufficiently distinct, and that CARL’s participation would be of assistance in addressing the central issue. CARL’s submissions showed that they were prepared to dedicate the necessary resources to the matter. Moreover, CARL’s significant history of interventions gave Justice Norris confidence that they understood the role of an Intervener. Finally, Justice Norris noted that the Counsel for CARL brought a singularly valuable insight, as they had been counsel in Jaballah. Justice Norris was satisfied that the usefulness requirement was met.
The Respondent had raised two concerns when it came to interest of justice should the intervention be granted. Firstly, it would interfere with the orderly progression of the underlying application, and secondly, since the underlying application should be dismissed as moot, the intervention would serve no useful purpose. With respect to the first concern, Justice Norris agreed that granting this intervention would disrupt the orderly progression, however, no one was prejudiced by this. When it came to the mootness of the matter, the possibility that the matter might not be heard and decided on its merits was relevant consideration when it came to interest of justice. Justice Norris was satisfied that there was an arguable case for hearing and deciding the application for leave on its own merits and be in the interests of justice. CARL’s participation would enhance the legitimacy and accountability of the proceeding wherein an important legal issue may be determined. Justice Norris was satisfied that it was in the interest of justice to permit the intervention and granted CARL’s motion for leave to intervene.
Haile v. Canada (MCI) 2023 FC 1424
In Haile v. Canada (MCI), Justice Brown assessed the Applicant’s refusal of their permanent residence application under the Convention Refugees Aboard Class. The Applicant was a citizen of Ethiopia, who was residing in South Africa and under Formal Recognition of Refugee Status from South Africa. South Africa confers temporary refugee status, but in reality, it may also be more permanent. The Applicant proceeded to apply for permanent residence in Canada under the Convention Refugee Abroad Class, but the application was refused due to the Applicant having a durable solution in South Africa. On judicial review, Justice Brown stated that “the Minister’s Operational Manual 5 Overseas Selection and Processing of Convention Refugees and members of the Humanitarian-protected persons Abroad Classes [OP-5] has long been recognized as providing a useful guide as to whether a durable solution exists. Notably, subsection 13.2 of OP-5 recognizes local integration is a long-lasting solution to a refugee’s situation and is ‘more than the granting of safe conditions of asylum’…OP-5 goes on to note that local integration is such that allows the refugee ‘to live permanently in safety’ in the country of refuge.” Justice Brown argued that a Claimant’s safety forms a central part of both local integration and durable solution. In this case, the Officer failed to grapple with the Applicant’s personal circumstances, predominately the evidence of persistent race-based violence and criminality coupled with a degree of official indifference. Justice Brown was also concerned with the Applicant’s allegations against the South African police and her alleged lack of protection. The application for leave was allowed.
Hassan v. Canada (MCI) 2023 FC 1422
In Hassan v. Canada (MCI), Justice Elliott examined the Applicant’s vacation decision. The Refugee Protection Division (RPD) vacated the Applicant’s status under s.109 of IRPA, finding that she had misrepresented her true identity. The Applicant was a citizen of Somalia. In 2005, the Applicant and her daughter were found to be Convention refugees. When seeking asylum, the Applicant stated that she did not go by any other name, that she did not know her location of embarkation, and that she needed protection from a recent attack on herself and her family in Somalia. In 2007, the Applicant’s husband was also found to be a Convention refugee. In 2008, the Applicant’s husband was stopped in Pearson airport, where he admitted to the Officer that 1) he was a Dutch citizen; 2) his daughter was a Dutch citizen, and 3) the Applicant had lived in Netherlands under a different name and had resident status in the Netherlands through him, as his spouse. In 2019, the Minister applied to vacate their refugee status. The Applicant’s husband and her daughter conceded the vacation applications against them based on their Dutch citizenship. At this point, the original RPD file for the Applicant had been destroyed. The Applicant conceded that she had withheld information regarding her time in Netherlands and that she lived there under an alias. She testified and provided her true identity, which she used to file her refugee claim, and that the other identity was a fraudulent alias used to travel to Netherlands, as she did not have a passport of her own. At the time of the hearing, the Applicant attempted to submit her marriage certificate as new evidence to rebut the Minister’s allegations of misrepresentation. The Panel ultimately decided not to accept this evidence and the RPD allowed the Minister’s vacation application.
On judicial review, Justice Elliott found that the RPD unreasonably concluded that the Applicant had misrepresented her identity and was thus excluded from protection pursuant to Article 1E. The RPD failed to accept the Applicant’s marriage certificate into evidence by incorrectly focusing on the requirements of s.109(2) of IRPA. The Applicant had presented the marriage certificate to rebut the finding of misrepresentation under s.109(1) of IRPA. The rejection of the evidence under s.109(2) was not available to the RPD. This error tainted the entire decision, as the RPD made the decision without the benefit of evidence that may have refuted the Minister’s case. Secondly, the RPD unreasonably concluded that the Applicant would have been excluded under Article 1E should she not have withheld information about her stay in the Netherlands. Based on the evidence, the RPD was not open to making a finding that the Minister had met his onus to establish a prima face case for exclusion. Finally, Justice Elliott found that there was no abuse of process in the RPD proceeding with the vacation proceeding after more than a decade. Even if the Applicant had established abuse of process, a Stay would not have been warranted in this case. The application for leave was allowed.
Adesoji-Atoyebi v. Canada (MCI) 2023 FC 1421
In Adesoji-Atoyebi v. Canada (MCI), Justice Norris reviewed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant first entered Canada in 2014, when he was 15. While not clear, it appeared that the Applicant was accompanied by his parents and two siblings. The Applicant attended secondary school, maintaining his status with a succession of study and work permits. In February 2021, the Applicant’s mother applied for permanent residence under the temporary public policy for refugee claimants working in Canada’s health-care sector during the COVID-19 pandemic. The Applicant, his two siblings, and his father were all included. However, the Applicant was not an eligible dependant as he had exceeded the maximum age of 22 years by seven months. As a result, he was removed from the Application. The Applicant’s parents and siblings all became permanent residents of Canada. The Applicant submitted an H&C application in 2021, but it was refused.
The Applicant’s main argument in his H&C application was that his personal circumstances all stemmed from his ineligibility to be included as a dependant on his family’s application for permanent residence. In response to the Applicant’s submissions, the Officer stated that “I note that the applicant is required to meet the requirements of the H&C and not being able to apply under certain programs is not a hardship in the context of the H&C.” Justice Norris found this analysis unreasonable as 1) the Officer did not elaborate on his blanket statement in any way, and 2) the Officer’s analysis was inconsistent with the established rationale behind H&C relief, which is to provide flexibility and mitigate the rigid application of the law in appropriate cases. The application for leave was allowed.
Whyte v. Canada (MCI) 2023 FC 1420
In Whyte v. Canada (MCI), Justice Turley assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) application decision. The applicant was seeking judicial review of two decisions, 1) a negative PRRA decision, and 2) a reconsideration refusal of the PRRA decision. The Applicant feared return to Jamaica because of violence and/or reprisals at the hands of criminals or gangs. The Applicant alleged that he experienced extortion, abuse, gang member violence, and he feared reporting these incidents to the police because the Jamaican police officers colluded with gangs. The Officer concluded that the Applicant had failed to provide sufficient objective evidence to assert his allegations of risk, and that insufficient evidence was provided to show the Applicant attempted to obtain and was denied state protection. On judicial review, the key issue was the Officer’s failure to apply the test of operational adequacy when it came to the review of sate protection. The Officer acknowledged that there was police corruption in Jamaica but found that efforts were being made to address the issue. What the Officer failed to address was the operational effectiveness of those efforts. Moreover, Justice Turley found that the Officer erred by selectively reading the objective evidence when it came to adequacy and availability of state protection. The application regarding the negative PRRA decision was allowed.