K.M. v. Canada (MCI), 2022 FC 1726
In K.M. v. Canada (MCI), Justice Strickland examined the Minister’s decision to refuse the Applicant’s Pre-Removal Risk Application (PRRA) due to lack of forward-looking risk. The Applicant originally made a successful refugee claim and became a permanent resident in 2010. However, due to the Applicant’s multiple trips to back to her country of persecution, the Minister initiated the application to cease the Applicant’s protected person status pursuant to s.108(1)(a) of the Immigration and refugee Protection Act. As a result of miscommunication and misunderstandings the Applicant did not attend the cessation hearing and the Refugee Protection Division (RPD) grated the cessation application in 2015. The Applicant applied for a PRAA in 2020, based on her continued fear form her ex-husband, but the application was refused. On judicial review, Justice Strickland assessed the Officer’s treatment of the Applicant’s submissions on forward-looking risk. Justice Strickland found that the Officer failed to grapple with the changes in the Applicant’s circumstance and did not address what impact the return may have on the Applicant’s mental health or on her ability to hide from her ex-husband. Furthermore, Justice Strickland noted that while the Officer did mention the prospect of the Applicant hiding indefinitely, he failed to address whether this was a reasonable solution for mitigating risk. Justice Strickland concluded by stating that the Officer’s decision was contradictory for finding a lack of forward-looking risk but also acknowledging the exitance of continued risk. The application for leave and judicial review was granted.
Montes Camacho v. Canada (MCI), 2022 FC 1723
In Montes Camacho v. Canada (MCI), Justice Fuhrer assessed the Applicants’ refused refugee claim appeal with the Refugee Appeal Division (RAD) as a result of a viable IFA. During the appeal, although the RAD did allow for new evidence, it did not hold an oral hearing, despite the Applicant’s request for one. On judicial review, Justice Fuhrer focused more on the issue of whether the RAD filed to provide a reasonable explanation of why an oral hearing was warranted, rather than whether the RAD failed to provide an oral hearing overall. Justice Fuhrer found that the RAD’s decision for no oral hearing lacked justification and transparency. The application for leave and judicial review was granted.
Skenderaj v. Canada (MCI), 2022 FC 1697
In Skenderaj v. Canada (MCI), Justice Elliott examined the Office’s decision to refuse the Applicant’s Pre-removal Risk Assessment (PRRA) application on the grounds of insufficient risk in Albania. On Judicial review, the determinative issue on judicial review was the Officer’s finding with respect to the requirement of corroborative evidence. In his decision, Justice Elliott cited Senadheerage, 2020 FC 968, a case that set the legal framework with respect to requirements for corroborative evidence. In Senadheerage, Justice Grammond outlined that a decision maker can only require corroborative evidence if 1) a clear and independent reason is set out for requiring corroborative evidence; and 2) the evidence in question is expected to be easily available, and after given the opportunity to do so, the Applicant failed to provide a reasonable explanation for not obtaining it. Justice Grammond also stressed that the two-step framework ought not to be reversed, as this would “hollow out the presumptions of truthfulness. (at paras. 17-18).” When applying this precedent to the case at hand, Justice Elliott found Officer’s reasoning was flawed as the Officer presumed of the availability of evidence as a ground to require it, reversing the two-step framework. The application for leave and judicial review was granted, but the matter was not sent back for reconsideration as the Applicant’s whereabouts were unknown.
Marimuthu v. Canada (MCI), 2022 FC 1694
In Marimuthu v. Canada (MCI), Justice Brown explored the Applicants’ refused refugee claim appeal with the Refugee Appeal Division (RAD) as a result of a viable IFA. The Principal Applicant alleged that the there was a serious possibility that he would be apprehended should he return to his home country for violating his conditional release. On judicial review, Justice Brown was not satisfied that the RAD reasonably factored in the Principal Applicant’s arbitrary and violent treatment by the police when assessing the motives of the agent of persecution, making the IFA assessment fundamentally flawed. Furthermore, Justice Brown was not satisfied that the RAD applied the correct test to the facts, or reasonably conclude that the Applicant’s could be able to avoid detection by careful use of social media and the internet. The application for leave and judicial review was granted.
Liu v. MCI (Canada), 2022 FC 1691
In Liu v. Canada (MCI), Justice McHaffie examined the Officer’s decision to refuse the Applicant’s Humanitarian and Compassionate (H&C) application. The Applicant was an elderly woman with Parkinson’s disease, requiring constant care. In his decision, the Immigration Officer noted that the Applicant’s family had failed to demonstrate that they 1) were required to remain in Canada permanently; 2) that they were not health care professionals or providers; and 3) there was insufficient evidence that the family were best positioned to provide assistance. On judicial review, Justice McHaffie found the decision unreasonable. In particular “There is no particular requirement in an H&C application that an applicant show a necessity for them to be in Canada. Nor must they show that they are qualified as a health care worker to provide personal care and support to a family member. This is particularly so where, as here, the physical and emotional care that the applicants have been providing—and wish to continue providing as permanent residents—does not appear to require particular health care training. While issues of necessity or capacity may be relevant factors for consideration, they are not the central question and cannot alone be determinative” (at para. 14).” The application for leave and judicial review was granted.