Porosh v. Canada (MCI) 2023 FC 1638
In Porosh v. Canada (MCI) Justice Go examined the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant sought asylum on the basis of alleged danger due to a land disputed between his family and a family who was part of Bangladesh’s ruling party. The Applicant also alleged that he was wanted, for arrest, as a result of the dispute. The Refugee Protection Division (RPD) refused the Applicant’s claim, primarily due to the finding that the arrest warrant that was submitted into evidence did not conform with the objective documentation in the National Documentation Package (NDP). The RAD agreed with the RPD and found that the arrest warrant did not look like the sample arrest warrant found in item 9.4 of the NDP. In making the determination, the RAD relied on the English translation of the sample arrest warrant. Moreover, the RAD relied on the fact that the arrest warrant was missing the judge’s authorizing signature. On judicial review, the Applicant argued that a breach of procedural fairness had occurred as the English translation of the arrest warrant sample was not available to him. Justice Go found that the online version of the NDP Item 9.4 did not currently include the sample arrest warrant, and it was not known whether the English translation was ever available. Furthermore, Justice Go noted that even if the English translation was previously available, the fact that it currently was not, made the record before the Court incomplete and supported the granting of the judicial review. This was key as the RAD’s determination that the arrest warrant was fraudulent was central to the credibility finding. The RAD’s reliance on the English translation, without providing the Applicant an opportunity to respond, constituted as a breach of procedural fairness. In addition, Justice Go found that the RAD had also breached procedural fairness by raising new concerns about the missing authorization signature on the warrant. The Applicant should have been given an opportunity to respond the RAD’s new comments on the issue. The application for leave was allowed.
Allahbakhshihafshejani v. Canada (MIRC) 2023 FC 1614
In Allahbakhshihafshejani v. Canada (MIRC) Justice Turley explored the Applicant’s Pre-Removal Risk Assessment (PRRA) application decision. The Applicant was a citizen of Iran that came to Canada in 2016 on a study visa as a PhD candidate. His doctoral supervisor was also a citizen of Iran, as well as a Canadian permanent resident. The Applicant and his supervisor worked on a project that was sponsored by Wood Group, one of the world’s largest engineering firms. The project was to “develop deep water petrochemical infrastructure, such as undersea pipelines.” The Applicant was the only member of the research group with relevant experience to operate a key equipment (the centrifuge). The Applicant submitted a PRRA which was refused. He was ineligible to submit an asylum claim due to a criminal conviction. In his PRRA, the Applicant claimed risk of torture as well as cruel and unusual punishment should he be returned to Iran for refusing to transmit confidential research information to SADRA (an Iranian company controlled by the Islamic Revolutionary Guard Corps) as requested by his supervisor. On judicial review, Justice Turley found the Officer’s analysis unreasonable. The Officer had found that there was insufficient evidence to support the Applicant’s allegations that his supervisor was “attempting to evade international sanctions and provide SADRA with confidential information.” When reviewing the Officer’s analysis, Justice Turley asked “what other evidence could reasonably have been brought?”. In this case, the question was expanded to: “what sort of further evidence could the applicant have reasonably adduced to substantiate the allegations that his supervisor was attempting to transfer confidential data in violation of international sanctions? In this regard, the officer indicated that they would have expected: (i) a more specific reaction from the supervisor in response to the applicant’s refusal than general anger; and (ii) the involvement of other university officials.” (at par. 17). Justice Turley determined that in making these findings, the Officer failed to engage with the evidence; misapprehended and mischaracterized the evidence; and made both irrational and illogical conclusions. The application for leave was allowed.
Aqeel v. Canada (MCI) 2023 FC 1606
In Aqeel v. Canada (MCI) Justice Gleeson analyzed the Applicant’s permanent residence application refusal. The Applicant was a citizen of Yemen who secured protected person status in Canada. In his asylum claim, the Applicant disclosed that between 2007 and 2014, he was a member of the Southern Movement/ Al-Hirak Al-Janoubi (Southern Movement). Due to his membership, the Applicant’s permanent residence application was refused under s.34(1)(f) of IRPA, on the basis of him being a member of an organization that engaged in acts referred to in ss.34(1)(b) and (c) of IRPA. The Officer had determined that the Southern Movement was an organization within the meaning on s.34(1)(f) of IRPA based on the following two factors: 1) the decentralized, amorphous, or loose coalition of various factions all shared the common goal of restoring the independence of Southern Yemen; and 2) the movement was represented by a list of known and identifiable leaders characterized by a certain hierarchy. On judicial review, Justice Gleeson reviewed the Officer’s reliance on “the common goal of independence”, finding that there was no chain of analysis connecting “the common goal of independence” with the conclusion of one shared identity. In addition, Justice Gleeson had concerns that the Officer relied on evidence and information that postdated the Applicant’s period of membership when it came to the list of identifiable members of the Southern Movement. Justice Gleeson found that the Officer failed to consider the Southern Movement’s evolving nature and failed to engage with the matter of whether the movement was an organization during the Applicant’s membership period. It was, in Justice Gleeson’s view, that temporality is relevant when considering if a movement falls under the meaning of “organization” for the purposes of s.34(1)(f) of IRPA. The application for leave was allowed.
Abayarathne v. Canada (MCI) 2023 FC 1598
In Abayarathne v. Canada (MCI), Justice Southcott reviewed the Applicants’ Refugee Appeal Division (RAD) decision. The principal application (PA) and his daughter (associate applicant) were citizens of Sri Lanka, who claimed asylum on the basis that in 2014 police had attended his home, beat him, and accused him of being associated with the Liberation Tigers of Tamil Eelam (LTTE). In 2015, the PA was arrested and taken to a military camp where he was once more mistreated and accused of having ties with the LTTE. The PA left Sri Lanka in 2015 and travelled to the US, returning back to Sri Lanka in 2016. Two days after his return, a police officer had informed his wife that he would be arrested. As a result, the PA left Sri Lanka again, travelling back to the US, where he remained until 2018 before once again returning to Sri Lanka. In October 2018, the Sri Lankan army came to the PA’s home, took him in for questioning, and once more accused him of being a supporter of the LTTE and a part of the Tamil movement in the US. The PA left Sri Lanka in 2019, travelling to Canada, and his daughter followed him shortly after. Unfortunately, their claims were rejected. The Applicants appealed the refusal. During the appeal, the RAD had advised the Applicants that it wished to receive submissions on the issue of the PA’s reavailment to Sri Lanka and failure to claim asylum in the US. The Applicants had provided said submissions, as well as an affidavit from the PA, but the appeal was ultimately dismissed. On judicial review, Justice Southcott found that the RAD had made an adverse credibility determination with respect to the matters the PA had deposed in his affidavit. The RAD erred by failing to exercise its discretion under s. 110(6) of IRPA to decide on whether to hold an oral hearing on the basis that the affidavit contained documentary evidence that: i) raised a serious issue with respect to the PA’s credibility; ii) was central to the decision; and iii) if accepted, would justify allowing the claim. Moreover, the RAD had erred in rejecting the PA’s claim without considering the associate applicant’s evidence of being sexually harassed by the agents of persecution while the Applicant was in the US. The Application for leave was allowed.