Gayle v. Canada (MCI) 2024 FC 29
In Gayle v. Canada (MCI) Justice Turley examined the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was a Jamaican national who entered Canada in 2019 to help care for her daughter. The child’s father was deceased. In 2022, the Applicant submitted an H&C application, which was refused. On judicial review, Justice Turley found that the Officer made two reviewable errors: 1) failing to properly assess the best interests of the child (BIOC), who was seventeen at the time, and 2) failing to consider the Applicant’s recent evidence of domestic violence in Jamaica. With respect to the first error, the Officer incorrectly concluded that due to the Applicant’s daughter turning eighteen by the time the matter came before the Officer, the BIOC assessment did not apply. In accordance with IRCC Guidelines, BIOC is to be considered when a child is under eighteen years at the time of submission of the H&C application. The Officer erroneously limited their analysis to whether there was evidence to support the stance that the Applicant’s daughter could not take care of herself and/or had any psychological, physical, or mental impairments that made her dependent on the Applicant. Justice Turley argued that these were not appropriate factors to consider when the child was under eighteen at the time of submission of the application. The Officer erred by applying the wrong legal test. When it came to the second error, relating to domestic abuse, the Officer only referred to the abuse the Applicant suffered when she was younger. The Applicant’s statutory declaration had detailed more recent abuse by her former partner, and had tendered significant evidence, including a police report and an application for a protection order. While the Applicant did obtain a restraining order, it was nor strictly enforced, and she lived in fear of running into him. Justice Turley found this overlooked evidence of recent domestic violence, which figured prominently under the Applicant’s hardship analysis, vitiated the decision. The application for leave was granted.
Patel v. Canada (MCI) 2024 FC 28
In Patel v. Canada (MCI), Justice Asmudeh reviewed the Applicants’ Refugee Protection Division (RPD) decision. The Applicants (a husband, wife, and minor child) sought asylum on the grounds that his wife’s (well-connected) ex-spouse had unleased the police on them, accusing them of supporting Muslim militants. Their claim was refused, finding “no credible basis” for their claim. As a result, the Applicants had lost appeal rights to the Refugee Appeal Division (RAD). On judicial review, Justice Asmudeh found that the RPD’s logic was mostly unintelligible, with the Member engaging in circular logic, microscopic analysis, and treating all evidence as equal, irrespective of relevance or materiality. Justice Asmudeh found the RPD’s finding of “no credible basis” unreasonable. Justice Asmudeh highlighted that the Court could return a finding of “no credible basis” back to the RPD for redetermination by a different member if it found the decision otherwise reasonable. In this case, the “no credible basis” was intertwined with the RPD’s unreasonable analysis and could not be separated. The appropriate remedy was to send the whole matter back for redetermination. The application for leave was allowed.
Abdisa v. Canada (MCI) 2024 FC 25
In Abdisa v. Canada (MCI), Justice Go assessed the Applicant’s resettlement application decision. The Applicant was a citizen of Ethiopia, who applied to resettle in Canada through the Convention Refugees and Humanitarian-Protected Persons Abroad Class. The Applicant had alleged that he worked as a pharmacist at a government run hospital in 2019. During the course of this employment, he and his colleagues had treated a large number of protestors who were wounded during the Ethiopian government’s crackdown on peaceful demonstrations. The Applicant claimed that government forces harassed the hospital staff, including himself, for tending to the injured and that he was arrested and detained for over three weeks. Three days after being released, the Applicant fled to Kenya, where he was recognized as a Convention Refugee by both the UNHCR and the Kenyan Government. However, a migration Officer of the High Commission of Canada rejected the applicant’s application due to lack of well-founded fear of persecution. On judicial review, Justice Go found that despite the Applicant’s arrest and detention being central elements to his allegations, the Officer did not ask a single question regarding the aforementioned ordeal. Moreover, the Officer committed only one short sentence to the Applicant’s allegations. The Officer unreasonably failed to explain why the arrest, detention, beatings, and interrogations did not ammount to persecution or support well-founded fear. Justice Go also found the Officer failed to analyze whether the ongoing requirement to report to the police would put the Applicant in any future risk, given past allegations. Additionally, the Officer erred by not engaging with the UNHCR’s designation or provide an explanation as to why they did not concur with this designation. The application for leave was allowed.
Zhou v. Canada (MCI) 2024 FC 24
In Zhou v. Canada (MCI), Justice Pentney examined the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant, a citizen of China, originally came to Canada in 2011 to care for his aging father. After his visitor visa expired, the Applicant remained in Canada, looking after his father until his passing. The Applicant had made numerous unsuccessful immigration applications in an attempt to regulate his status: a refugee claim, an H&C application, and a Pre-Removal Risk Assessment application. In 2021, the Applicant submitted a second H&C application, which too was refused. That refusal was successfully appealed before the Federal Court ( 2022 FC 1046) and sent back for redetermination. On redetermination, the H&C application was once again refused. The evidence accepted by the Officer was as follows: the Applicant was now 72 years old; he had been seriously injured in two car accidents; he had not been in the workforce for the past 20 years while in Canada; he may be able to qualify for a pension should he return to China, but at best it would provide him with a nominal income; and that the Applicant’s wife had a serious mental health condition that required considerable ongoing support from him. On judicial review, Justice Pentney found the H&C analysis unreasonable as the Officer failed to grapple with the Applicant’s personal circumstances. The Officer failed to consider the consequences the Applicant would face should he be unable to qualify for a pension in China, nor the practical realities he would face in supporting himself and his wife on a meager pension should he be eligible for one. Rather than engaging with the reality of the Applicant’s personal circumstances, the Officer engaged in an analysis that removed the specific realities the Applicant faced. The decision failed to meet the standard of responsive justification in accordance with the Vavilov framework. The application for leave was allowed.