Menjivar v. Canada (MCI), 2022 FC 1490
In Menjivar v. Canada (MCI), the Court explored the IAD’s decision to dismiss the applicant’s appeal on H&C grounds under section s.67(1)(c) of the Immigration and Refugee Protection Act, on the basis that the applicant had engaged in misrepresentation and failed to show a lack of remorse. Upon Judicial Review, the Court found that while the IAD’s decision to uphold the finding of misrepresentation was reasonable, their assessment of the H&C considerations was not. In particular, the Court stressed that the applicant was not only entitled to put the Minister to the proof of the allegation regarding the genuineness of his prior marriage, but was also entitled to appeal the ID’s determination to the IAD. In addition, the Court noted that the IAD erred in treating the applicant’s lack of remorse not simply as the absence of mitigating factors but, rather, as aggravating factors weighing heavily against the granting of special relief. Lastly, the Court discovered that the IAD took a very limited review of the best interested of the child and unreasonably found it only as “slightly positive” factor in this case when the issue warranted more careful consideration. The application for judicial review was allowed.
Kaur v. Canada (MCI), 2022 FC 1483
In Kaur v. Canada (MCI) the Court addressed the Officer’s refusal of an elderly widow’s humanitarian and compassionate application. On judicial review, the Court found that the officer erred in their assessment of hardship (specifically, discrimination against widows in India). The Court noted that it was unreasonable for the officer to require direct evidence concerning discrimination against the applicant given that her status as a widow was sufficient to place her as a member of a discriminated group. The application for judicial review was allowed.
Singh v. Canada (MCI),2022 FC 1481
In Singh v. Canada (MCI), the Court explored the applicant’s appeal of the cessation of his refugee status on the ground of reavailment. On judicial review, the Court found that the RPD’s analysis as it related to the voluntariness and intention branches of the reavailment test was unreasonable. The Court found that none of the evidence before the RPD relating to the applicant’s subjective intent was actively considered. The RPD’s failure to grapple with the submissions and evidence relating to the applicant’s subjective intent, together with the RPD’s reliance on its objective view of how the applicant should have proceeded rendered the decision unreasonable. The application for judicial review was granted.
Alex v. Canada (MCI), 2022 FC 1454
In Alex v. Canada the Court addressed the Officer’s decision to refuse a humanitarian and compassionate application. The Court focused on the Officer’s assessment of the applicant’s hardship and best interests of the child as it relates to the racial discrimination they would face in Italy as Black persons of African descent. On judicial review, the court stated that it was while it was not unreasonable for the Officer to consider the anti-discriminatory measures that had been adopted in Italy to combat racial discrimination, the decision was unreasonable because the Officer failed to address the effectiveness of those anti-discrimination measures. The application for judicial review was allowed.