Kuka v. Canada (MCI) 2024 FC 209
In Kuka v. Canada (MCI) Justice Favel examined the Applicant’s refused Humanitarian and Compassionate (H&C) and Pre-Removal Risk Assessment (PRRA) application decisions, made by the same Senior Immigration Officer. The Applicant feared persecution from her and her ex-fiancé’s family when a blood feud was declared after she broke off her engagement. On judicial review, Justice Favel found the PRRA decision unreasonable due to the contrary findings made in the H&C decision. The reasoning was not clear when it came as to why the Officer gave positive weight to hardship (in the H&C context) while simultaneously finding that the Applicant had not provided evidence of the same past or future hardship in the PRRA. The Officer also made a remark about the Applicant’s withdrawn refugee claim, which was interpreted as misapprehension of the refugee protection scheme – contributing to the unreasonableness of the PRRA decision. Moreover, the Internal Flight Alternative (IFA) determination in the PRRA decision was procedurally unfair as the Officer failed to provide the Applicant an opportunity to respond or disclose the IFA location being considered. This was a similar issue when it came to the IFA matter in the H&C decision. Finally, the H&C IFA analysis was unreasonable as it improperly imported an analysis applied in a refugee context into the H&C process. The application for leave was allowed.
Anwar v. Canada (MCI) 2024 FC 197
In Anwar v. Canada (MCI) Justice Turley reviewed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant claimed asylum in Canada on the basis of fear of persecution in Pakistan as a result of her sexual orientation. Both the Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD) denied her claim on the basis of credibility. The applicant had three children in Canada, submitting a PRRA in 2022, based on a new fear of persecution in Pakistan due to her status as an unwed mother. The Applicant argued that having children outside of wedlock is prohibited under Islamic faith, resulting in hostility from her family and friends. She claimed that her brother had threatened to kill her, and her children, should he see her again, and that the Taliban had ordered her family to carry out an honour killing against her. Furthermore, a First Information Report (FIR) had been registered in May 2022, accusing the Applicant of prostitution under Pakistan’s Penal Code. In the end, the Officer refused the Applicant’s PRRA. On Judicial review, Justice Turley found the determinative issue to be the Officer’s failure to conduct a proper risk assessment under s.96 of IRPA based on the Applicant’s profile as an unwed mother. The Applicant was clear in articulating her fear of an honour killing. While the Officer acknowledged that honour killings were on the rise in Pakistan, the Officer failed to comprehend the requisite risk analysis based on the evidence of similarly situated individuals to determine whether the Applicant’s evidence was enough to establish that she faced or would face risk upon her return to Pakistan. Justice Turley argued that this line of inquiry was relevant to s.97 analysis. However, as a s.96 claim was based on membership in a particular social group, the Applicant was not required to show proof that she herself had been or would be persecuted in the future. The application for leave was allowed.
Roy v. Canada (MCI) 2024 FC 189
In Roy v. Canada (MCI) Justice Turley assessed the Applicant’s Pre-Removal Risk Assessment (PRRA) decision. The Applicant came to Canada in 2019 on a study permit, but his status was subsequently revoked, and a removal order was issued as he was found to be inadmissible under s.36(1)(a) of IRPA. The Applicant claimed asylum in 2021 but the claim was terminated due to his inadmissibility. The Applicant proceeded to file a PRRA arguing that he was at risk in Bangladesh from extremist Muslim groups due to his Hindu faith. The Applicant further alleged that he was at risk due to an arrest warrant issued against him based on an allegation that he had posted anti-Islamic messages on social medica. He claimed that a fake Facebook account had been created in his name to make these posts. After holding a credibility hearing, the Officer rejected the Applicant’s PRRA for three main reasons: 1) “low credibility” of documents from Bangladesh; 2) the Applicant’s failure to make a refugee claim until after a removal order had been issued; and 3) the lack of evidence to support his allegation that he was wanted in Bangladesh. On judicial review, Justice Turley found that the Officer erred by assigning little probative value to the Applicant’s supporting documents on the basis of prevalence of fraudulent documents in Bangladesh, without making an explicit finding about their authenticity. This error alone rendered the decision unreasonable. Moreover, Justice Turley found that a breach of procedural fairness had occurred by failing to provide the Applicant with an opportunity to respond to the Officer’s concerns. While an oral hearing was held, the Officer did not question the Applicant about his failure to mention the falsified social media posts in his Basis of Claim form, or his failure to disclose the criminal charges he was facing when making his study permit extension application in 2020. Nevertheless, the Officer made a negative inference against the Applicant’s credibility based on the above concerns. The Officer’s failure to advise the Applicant of said concerns and provide him with an opportunity to respond breached procedural fairness. The application for leave was allowed.
Lin v. Canada (MCI) 2024 FC 185
In Lin v. Canada (MCI) Justice Go analyzed the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant successfully claimed asylum in Canada in 2007 on the basis of religious persecution. In 2021, the Refugee Protection Division (RPD) granted the Minister’s cessation application on the basis of reavailment. The Applicant submitted an H&C application as well as a request for a Temporary Resident Permit (TRP). The Applicant enclosed an affidavit outlining his religious activity in Canada, as well as evidence concerning ongoing persecution of house church members in China. The Officer refused the Applicant’s H&C application and did not consider the TRP request. On judicial review, Justice Go found that the Officer erred in their analysis of hardship faced by the Applicant as a Christian in China. Firstly, the Officer applied the incorrect legal test by relying on the RPD’s reavailment findings to conclude that the Applicant would not face persecution in China. Secondly, the Officer failed to engage with the Applicant’s evidence. While acknowledging that many Christians face discrimination and harassment in China, the Officer failed to consider whether such treatment would amount to hardship for the Applicant and expected the Applicant to demonstrate that he would be personally at risk. The Officer also failed to consider the relevant country condition evidence on the treatment of Christians in China. The application for leave was allowed.
Baptiste v. Canada (MCI) 2024 FC 181
In Baptiste v. Canada (MCI) Justice Go examined the Applicant’s Humanitarian and Compassionate (H&C) decision. The Applicant was a citizen of St. Vincent and the Grenadines (SVG) who resided in Canada without status since 2002. The Applicant submitted an H&C application in 2021, claiming fear of returning to SVG as she and her sister had been victims of gender-based violence at the hands of her two older brothers. She explained that the abuse had cause her sever depression and post-traumatic stress disorder (PTSD). The Officer refused the application. On judicial review, Justice Go found that the Officer erred by requiring the Applicant to show “exceptional” establishment, and by conducting an unreasonable assessment of the Applicant’s circumstances. Justice Go found that the abuse had severely affected the Applicant’s mental health and was the reason she fled to Canada. While the Officer accepted that the Applicant suffered residual effects from the abuse and required treatment, the Officer also found a number of factors that would “mitigate” the hardship incurred upon the Applicant’s return to SVG. Justice Go found that it was unreasonable for the Officer to conclude that the Applicant’s hardship was “mitigated” when the trauma itself was the source of the hardship. The Officer did not consider whether the hardship, however mitigated, might still warrant granting an exemption in light of the circumstances of the matter. The application for leave was allowed.
Ajayi v. Canada (MCI) 2024 FC 177
In Ajayi v. Canada (MCI) Justice Ngo reviewed the Applicants’ Humanitarian and Compassionate (H&C) decision. The Applicants and their two minor children arrived in 2018, submitting a refugee claim. Their asylum claim was refused. Subsequently, the Applicants made an H&C application which was also refused. On judicial review, Justice Ngo found the determinative issue to be the best interest of the child (BIOC) assessment, in particular with respect to the special needs of the children. The Officer argued that there was insufficient evidence to show how their child would not be able to access programs and support for his ADHD in Nigeria. The Applicants, however, had submitted objective evidence demonstrating the child’s diagnosis, particular schooling requirements, psychological health arising as a result of diagnosis, as well as other documents and country condition evidence. Reading the decision as a whole, as well as based on the full record before the Officer, Justice Ngo found the Officer failed to engage with the evidence regarding the child’s special needs and diagnosis. This reviewable error rendered the decision unreasonable. The application for leave was allowed.