Al-Maflehi v. Canada (MCI) 2024 FC 297
In Al-Maflehi v. Canada (MCI) Justice Heneghan examined the Applicant’s inadmissibility finding pursuant to s. 34(1)(f) of IRPA. The Applicant was a citizen of Yemen who applied for permanent residence in Canada in 2015. The Applicant was interviewed, twice, by Visa Officers in Ethiopia, during which he disclosed that he was a member of the Southern Movement/ Al-Hirak Al-Janoubi. The Officer found the Applicant inadmissible due to his membership with the Southern Movement. On judicial review, the Applicant argued that the decision was unreasonable as the Southern Movement was an “umbrella description covering many organizations and activists in southern Yemen,” not an “organization” within the meaning of s.34(1)(f) of the IRPA. The Applicant submitted country evidence that there were many competing bodies holding themselves out as leaders of the Southern Movement. The Officer, however, had referred to the Southern Movement’s website, without elaborating how they arrived at the conclusion that the website was representative of the entire movement. Given the evidence that many individuals and groups were holding themselves as leaders of the Southern Movement, Justice Heneghan argued that it was necessary for the Officer to explain how they determined that the individuals identified on the website were the “real” leaders of the Southern Movement. The Officer’s failure to do so rendered the decision unreasonable. The application for leave was allowed.
Singh v. Canada (MCI) 2024 FC 291
In Singh v. Canada (MCI) Justice Gleeson reviewed the Applicants’ Refugee Appeal Division (RAD) decision. The Principal Applicant (PA) and his spouse were citizens of India who sought asylum on the basis of fear of persecution from the Punjabi police due to a perceived connection to Sikh militants. The Refugee Protection Division (RPD) found the Applicants had an internal flight alternative (IFA) in New Delhi and the RAD dismissed the appeal on credibility alone. The RAD also found that the RPD had correctly determined the existence of a viable IFA in New Delhi. On judicial review, Justice Gleeson found that the RAD had breached procedural fairness in considering credibility without giving the Applicants notice or a chance to respond. Moreover, credibility was not an issue before the RPD. The RPD had accepted that the Applicants had established risk of persecution by the Jalandhar district police. Based on this, the only issue the Applicants raised before the RAD was whether the RPD’s proposed IFA was viable. The RAD had identified credibility concerns that were not pursued by the RPD, and no notice was given to the Applicants. Furthermore, the RAD’s reasoning suggested that the negative credibility finding affected its IFA analysis. The application for leave was allowed.
Shao v. Canada (MCI) 2024 FC 281
In Shao v. Canada (MCI) Justice Heneghan explored the Applicants’ inadmissibility finding pursuant to s.36(1)(b) of IRPA. The Principal Applicant (PA) and her spouse sought to challenge their family class permanent residence decision. The Officer found the husband inadmissible for serious criminality pursuant to s. 36(1)(b) of IRPA for being convicted of embezzlement under Articles 25, 382 and 383 of the Criminal Law of the People’s Republic of China. The PA was therefore inadmissible pursuant to s. 42(1)(a) of IRPA. The Officer also refused the Applicants’ request for Humanitarian and Compassionate relief pursuant to s. 25(1) of IRPA. On judicial review, Justice Heneghan agreed with the Applicants and found that the Officer erred in their equivalency analysis. The Officer either improperly or unreasonably had applied the equivalency test set out in Hill, (1987), 73 N.R. 315 (F.C.A.), specifically with respect to the husband’s mens rea and subjective belief. The application for leave was allowed.
Barrera Cornejo c. Canada (MCI) 2024 FC 268
In Barrera Cornejo c. Canada (MCI) Justice Azmudeh examined the Applicants’ Refugee Appeal Division (RAD) decision. The Principal Applicant (PA) alleged that he and his family faced persecutions in Argentina due to his activities with the Sindicato Unido de Trabajadores de la Educacion (SUTE). The Refugee Protection Division (RPD) rejected the Applicants’ claim on credibility grounds, and the RAD upheld the ruling. Upon appeal at the RAD, the Applicants attempted to submit several additional documents, including a psychiatric report, indicating that the PA suffered from Post Traumatic Stress Disorder (PTSD), which was accepted by the RAD, and an affidavit from the former general secretary of the SUTE (which the RAD did not accept). The affidavit provided more information on the PA’s role and more information the agent of persecution. While the RAD found the affidavit was probative, it was not new evidence for the purposes of s.110(4) of IRPA. On judicial review, Justice Azmudeh found it unreasonable for the RAD to reject the affidavit but accept the psychological report. It was unreasonable for the RAD to not consider whether the psychological report had a bearing on the timeliness of the other documents. The PA’s mental state was an essential element that the RAD failed to consider. The application for leave was allowed.
Wang v. Canada (MCI) 2024 FC 200
In Wang v. Canada (MCI) Justice Manson reviewed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of China and a Pentecostal Christian. While in China, the Applicant, along with other partitioners, distributed leaflets for their church. They were apprehended, interrogated, assaulted, and accused of illegal religious activities by the Public Security Bureau. In 2017, the Applicant fled to Canada, with the aid of a smuggler. In Canada, the Applicant joined a church and was baptized. The Refugee Protection Division (RPD) and the RAD both rejected his claim. The Applicant had appealed the refusal, and the Court had remitted the matter back to the RAD for redetermination, but the RAD refused the appeal for a second time. On judicial review of the second refusal, Justice Manson found that the RAD erred when it came to treatment of several pieces of new evidence. Moreover, the RAD’s assessment of the Applicant’s genuineness when it came to his religious practice, was unreasonable. Justice Manson found no evidence to suggest that the Applicant was “unresponsive” or “vague” as noted by the RAD. Second, the RAD had admitted a letter from the Applicant’s Reverend but gave it no weight. This letter confirmed that the Applicant had attending his church (since 2017), bible classes, and was baptized. Third, despite the Applicant being able to identify basic concepts of the Christian faith, the RAD concluded that he lacked religious knowledge. However, the RAD failed to identify the concepts the Applicant should have identified during his hearing. The Application for leave was allowed.