Taji v. Canada (MCI) 2023 FC 1587
In Taji v. Canada (MCI), Justice Norris examined the Applicant’s cessation decision. The Applicant was a citizen of Iran who had successfully claimed asylum in 2011 and obtained permanent residence in 2012. Shortly after obtaining permanent residence, the Applicant travelled to Iran eight times, usually staying several months at a time. During one of these trips, he renewed his Iranian passport. In 2020, the Minister applied for a determination that the Applicant’s refugee protection status has ceased due to voluntary reavailment. The Applicant had submitted that he had never intended to reavail himself and, in any event, the circumstances that had given rise to the need of protection had ceased. The change in circumstances became clear to the Applicant during his first trip back in 2012, and his subsequent trips confirmed that he was no longer at risk in Iran. The Refugee Protection Division (RPD) allowed the Ministers cessation application on the grounds of reavailment under s. 108(1)(a) of IRPA.
On judicial review, the Applicant argued that it was unreasonable for the RPD to find that his refugee protection had ceased as a result of reavailment without also contemplating whether it had ceased because the reasons he had sought protection had ceased to exists (as per s.108(1)(e) of IRPA), and if this was the case, explaining why his refugee protection should nevertheless been found to have ceased due to reavailment. A finding under s. 108(1)(e) of IRPA does not result in the loss of permanent resident status. Justice Norris agreed with the Applicant, that the decision was unreasonable, stating that “the decision only explains why the RPD concluded that the test for re-availment had been met. The RPD does not explain in any way why the Minister’s application was being allowed on this ground alone, notwithstanding the applicant’s detailed submissions urging it to find that cessation was established only under paragraph 108(1)(e), if at all. Given the serious consequences of the RPD’s decision, its complete silence in this regard means that the decision does not meet the requirements of responsive justification set out in Vavilov and Mason” (par. 15). Moreover, the RPD’s failure to meaningfully grapple with s.108(1)(e), or even at all, called into question the alertness and sensitivity of the tribunal to the matter at hand. The application for leave was allowed.
Shala v. Canada (MCI) 2023 FC 1561
In Shala v. Canada (MCI), Justice McDonald reviewed the Applicant’s Immigration Division decision. The Applicant was found inadmissible pursuant to ss.34(1)(b), (c) and (f) of IRPA. The Applicant was a Palestinian national from Gaza who had been employed by the Palestinian Authority (PA) between 1997 and 2007. The ID determined that there were reasonable grounds to believe that employment with the PA was equivalent to membership with the Palestinian Liberation Organization (PLO), which the ID had fond engaged in acts of terrorism. The ID also determined that the PA was an internal organ of the PLO and not a separate organization. On judicial review, Justice McDonald found that the ID failed to properly take into account contradictory evidence on the role of PA within the PLO. The ID had relied on the fact the PA and the PLO shared the same leaders as grounds to conclude that they were the same organization. However, the country condition evidence and the National Documentation Packages (NDP) considered by the ID were conflicting with this finding. The ID failed to undertake any analysis of the legal or operational distinction between the two groups and failed to reconcile the conflicting evidence. Justice McDonald found that “… overall, the ID did not demonstrate the level of caution prescribed in Kanagendren when conflating membership in one group with another, especially in the context of nationalist or liberationist movements like that of Palestinian liberation” (at para. 39). The application for leave was allowed.
Saha v. Canada (MCI) 2023 FC 1553
In Saha v. Canada (MCI), Justice Southcott examined the Applicant’s cessation decision. The Applicant was a citizen of Bangladesh who had successfully claimed asylum in 2011 and obtained permanent residence in 2013. Shortly after obtaining permanent residence, the Applicant travelled to Bangladesh on her original passport, and applied and obtained a new Bangladeshi passport while there. The Applicant then used her new passport to travel to Bangladesh in 2014 and 2016. Based on her travel history, and use of Bangladeshi passport, the Refugee Protection Division (RPD) granted the Minister’s cessation application on the basis of reavailment. On judicial review, the determinative issue was the RPD’s failure to assess the Applicant’s knowledge of the consequences of reavailment, unreasonably arriving at the conclusion that the Applicant should have known instead of what she actually knew. The application for leave was allowed.
Layug v. Canada (MCI) 2023 FC 1545
In Layug v. Canada (MCI), Justice Pentney assessed the Applicant’s Pre-Removal Risk Assessment decision. The Applicant had arrived in Canada when he was seventeen, becoming addicted to drugs and accumulating a criminal record. Due to the Applicant being inadmissible as a result of serious criminality, he was not eligible for refugee protection. The Applicant submitted a PRRA which focused on the risks he would face due to his history of drug use, his Substance Use Disorder, and mental health. The Applicant’s PRRA was refused. On judicial review, Justice Pentney found the decision unreasonable for two reasons. First, the Officer failed to engage with the central issue of the Applicant’s case, which was him being at risk by virtue of his drug addiction and past association with drug use. Second, the Officer’s determination rested on the finding that the Applicant would have access to effective treatment in the Philippines, yet the decision rejected the conflicting evidence about the inadequacy of such treatments and risk associated with seeking such treatment. The application for leave was allowed, and the Applicant was granted an opportunity to make additional submissions.
Sobhan v. Canada (MCI) 2023 FC 1540
In Sobhan v. Canada (MCI), Justice Pentney reviewed the Applicants’ Humanitarian and Compassionate (H&C) decision. The Applicants, a husband and wife, were citizens of Bangladesh. They had their daughter and her family in Canada. In 2018, their grandson was diagnosed with Autism Spectrum Disorder and Pervasive Development Disorder. Since then, the female applicant has spent approximately six months of the year in Canada, assisting her daughter and son-in-law with the care of her grandson. The Applicant’s daughter had attempted to sponsor her parents through the Parent/Grandparent Sponsorship Program but was not selected from the lottery. The Applicants then submitted an H&C Application, which was refused. The core of the Applicant’s H&C was the best interests of their grandson. On judicial review, the determinative issue was the Officer’s articulation and application of the best interests of the child (BIOC) test. Justice Pentney found the Officer’s decision as the reasons, when it came to the BIOC assessment, departed from the guidance in Kanthasamy. Rather than determining what was in the best interest of the child, the Officer kept asking whether the Applicants’ presence was absolutely necessary for his well-being and development. Justice Pentney found that this was the incorrect test. The Officer had failed to explain why it was not in the best interest of the child to receive ongoing care from the Applicants (who had undergone specialized training) and who understood not only his growing developmental needs but had developed a close relationship with their grandson. The application for leave was allowed, and the Applicants were granted an opportunity to make additional submissions before a new decision was made.