We have chosen these Federal Court case decisions for this edition. A list of cases is included below:
- 2024-08-27: Nguyen v Canada – TFWP (PFL)
- 2024-08-28: Tasdemir v Canada – Refugee (Late BOC, incompetent lawyer)
- 2024-08-29: Nshimyumuremyi v Canada – PRRA (LGBTQ Applicant removed from Canada despite the indication that leave would be granted)
- 2024-09-04: Singh v Canada – Flagpoling/TRV
- 2024-09-04: Wong v Canada – Spousal (Unreasonable conclusions by officer)
- 2024-09-06: Canada (Citizenship and Immigration) v Hosseini (IAD misapplication of residency requirements)
- 2024-09-10: Fearon Edwards v. Canada (Citizenship and Immigration) (H&C hardship test)
2024-08-27: Nguyen v Canada – TFWP (PFL)
In Nguyen v Canada, Justice Pamel held that a procedural fairness letter (PFL) issued to the Applicant did not give him with the necessary clarity to understand the case he had to meet.
The Applicant applied for a work permit under the Temporary Foreign Worker Program as a food service supervisor. His spouse applied for an accompanying work permit. The Applicant included relevant work experience on an additional page rather than in the Employment section of the application and provided a letter of recommendation for this work experience. The visa officer noted that the Applicant did not mention this work in the form itself. The Applicant received a PFL explaining that the officer had concerns that he provided a false employment history. The Applicant responded with affidavits from family members and other evidence. The officer gave these supporting documents little weight and the Applicant’s work permit application was refused, as was his wife’s application.
Justice Pamel found that the PFL did not adequately raise potential contradictions in the Applicant’s work history, leaving the Applicant to guess at what the contradictions could be. Therefore, the Applicant did not have a meaningful opportunity to respond.
2024-08-28: Tasdemir v Canada – Refugee (Late BOC, incompetent lawyer)
The Applicant, a citizen of Turkey, sought refugee protection. The Applicant found an interpreter who assisted him with the initial paperwork, helped him draft his narrative, and found him a lawyer. On the day of the Applicant’s basis of claim (BOC) filing deadline, the interpreter contacted the lawyer saying that the Applicant needed an extension to submit his BOC. The lawyer said he would submit an extension request, but did not do so until three weeks later.
The Applicant received a letter from a Registry Support Assistant at the RPD with a Notice to Appear to determine whether his claim for refugee protection had been abandoned. The Applicant wrote to the interpreter, who told him the lawyer had already asked for an extension to file the BOC. The extension request was denied. The lawyer told the interpreter he would try to have the abandonment hearing cancelled, and if not, he would “explain everything to the Board Member at that time.”
The hearing proceeded. The lawyer appeared on the Applicant’s behalf, but the Applicant had trouble connecting to the hearing. The RPD found that although the lawyer provided submissions, the Applicant failed to provide evidence why he was not at the hearing or why his BOC was late, and the claim was declared abandoned. The lawyer filed an application to reopen the Applicant’s claim, which was denied.
On judicial review, the Applicant argued a breach of natural justice resulting from the lawyer’s alleged incompetent representation. The Court sided with the Applicant, finding that the lawyer’s submissions in support of the application to reopen the claim fell short of a competent filing and that the evidentiary component fell outside the range of reasonable professional assistance. Madam Justice Aylen stated: “It is unfortunate that the Intervener (the lawyer) failed to show the same level of effort he put forward on this application when preparing the materials in support of the application to reopen.”
2024-08-29: Nshimyumuremyi v Canada – PRRA (LGBTQ Applicant removed from Canada despite the indication that leave would be granted)
The Applicant, a gay man from Rwanda, challenged the refusal of his application for a pre-removal risk assessment (PRRA), which was refused for lack of corroborative evidence about his sexual orientation. The Applicant was removed from Canada despite receiving a production order from the Court before his removal indicating that leave would likely be granted.
Justice Battista granted the application for judicial review, despite its mootness, explaining that the concept of mootness does not neatly apply to the review of negative PRRA decisions made after a person is removed from Canada. Justice Battista writes at para 19: “The object of a judicial review application of a negative PRRA decision is the negative PRRA decision; the object is not the person who filed the PRRA application, nor the PRRA application on its merits. Unless the parties before the Court on judicial review are in agreement about the validity or invalidity of the decision that is under review, a live controversy or lis exists.”
At para 34, Justice Battista writes: “The Respondent states that re-determining a PRRA application from a removed applicant will not lead to concrete consequences or benefits to the parties. This is speculative. As explained above, the presence or absence of the Applicant in Canada is a fact to be determined at the time of the redetermination; it is not a matter for this Court. Even if the chances of the Applicant’s return to Canada prior to the redetermination of the PRRA application are small, he should have the benefit of those chances given the precipitous removal of the Applicant after the Court indicated that leave was likely, and the possibility that Canada’s obligation of non-refoulement was breached.”
Justice Battista also found that the Officer unreasonably dismissed the Applicant’s 11-page narrative in support of his PRRA application and unreasonably imposed a requirement of corroboration of the Applicant’s sexual orientation (para 52), citing the United Nations High Commissioner for Refugees’ (UNHCR) Guidelines on International Protection No. 9 that self-identification as an LGBTQI person should be taken as an indication of sexual orientation (paras 58-59).
2024-09-04: Singh v Canada – Flagpoling/TRV
In Singh v Canada, Justice Grant discussed the practice of “flagpoling” in relation to the Applicant’s application for a TRV which was refused for misrepresentation. The Applicant and his spouse sought to extend their work permits and went to a Canada-US land crossing, exited Canada, turned around without being admitted to the US, and applied for their work permits upon re-entry into Canada.
Justice Grant explains that “flagpoling” is not unlawful, but technically results in an administrative refusal to enter the US. The Applicant’s work permit was not extended, and six months later, he applied for a TRV. The Applicant was sent a PFL in which he was advised that “enforcement activities by the United States of America” were taken against him. The Applicant explained in response that he was unaware that flagpoling was considered a denial of entry and that his non-disclosure was inadvertent.
Justice Grant touched on the narrow exception of innocent misrepresentation, but did not base his conclusion on this issue, finding that the Officer’s reasons that the Applicant had committed a misrepresentation were deficient. Specifically, at para 27: it was important in this case for the Officer to consider whether it was reasonable for the Applicant, who does not appear to have been represented by counsel, to have been unaware that a U.S. entry refusal was a by-product of the flagpoling process. In the circumstances, I find that the Officer did not reasonably assess these important considerations.
2024-09-04: Wong v Canada – Spousal (Unreasonable conclusions by officer)
In Wong v Canada, the Applicant’s application under the Spouse or Common Law Partner in Canada class was refused on the grounds that the Officer allegedly sent an email for further information, which the Applicant never received, and therefore did not reply.
The Officer found that the relationship was primarily for immigration purposes, but provided no support for this basis of refusal.
The Officer’s second basis for refusal was lack of updated evidence of the relationship to ensure it resembled the relationship at the time the application was submitted, implying that a genuine relationship existed, contradicting the first basis for refusal.
The Officer also refused the application because of lack of sufficient evidence of the relationship submitted with the original application. Justice Battista writes at para 10: “As the Applicant states, this finding undermines the second basis of the refusal because it implies that more than a mere update of evidence was required.”
Finally, Justice Battista found at para 11: “Aside from the internal incoherence of the reasons, the Officer erred by fettering their discretion when they said: “Letters of support can never be given much value as they are easily forged and offer only circumstantial support for the existence of the relationship.”
2024-09-06: Canada (Citizenship and Immigration) v Hosseini (IAD misapplication of residency requirements)
In a recent FC decision, the Minister alleged that the IAD misapplied the residency requirement under ss. 130 and 133 of the IRPR with respect to Mr. Hosseini’s sponsorship application, conflating it with the calculation used for permanent residence.
Mr. Hosseini obtained PR in July 2010. He separated from his ex-spouse in 2013 and re-married in 2018 to his wife in Iran. He applied to sponsor his wife in June 2020 and his application was rejected in January 2023. The IAD allowed the appeal, finding that Mr. Hosseini met the residency requirement based on the number of days of his physical presence in Canada during the relevant period. When he was not in Canada, he was visiting his wife in Iran.
The Court held at paras 18-19: The determination of one’s residence, for the purposes of section 130 of the IRPR, does not depend only on a mathematical calculation based on physical presence (Jabeen v Canada (Citizenship and Immigration), 2020 FC 703 [Jabeen] at para 15). The issue of residence is also reasonably assessed by reviewing a number of factors beyond mere physical presence, taking into account the applicant’s legitimate wish to spend time with a spouse residing abroad. Other factors may be considered provided that they assist in the determination of whether the sponsor has “centralized his or her mode of living in Canada” (Jabeen at para 8 citing Iao at para 32).
The Court found that it was difficult to reconcile the IAD’s analysis with its conclusion that Mr. Hosseini met the residence requirement. At para 24, the Court stated: While one factor may not necessarily be determinative over another, the Decision was silent on the weight of a negative finding or a factor where there was no evidence vis-à-vis other potential positive factors. Despite this, the IAD nonetheless found that the Respondent “globally” met the residence requirement under section 130 of the IRPR.
Note: The hearing proceeded in Mr. Hosseini’s absence.
2024-09-10: Fearon Edwards v. Canada (Citizenship and Immigration) (H&C hardship test)
The Applicant (Jamaican national) worked as a seasonal agricultural worker from 2010 to 2019, and stayed in Canada as a visitor until December 2020. He married in December 2019 and separated from his spouse in January 2023, at which time his spousal sponsorship application was refused. The application was converted into an H&C application in which he cited his establishment in Canada, the best interests of his children and grandchildren, hardships in Jamaica, and family violence. The H&C application was denied.
Madam Justice Go found that the officer applied the wrong test for assessing hardships. The Applicant pointed to adverse country conditions including high unemployment, weak economy, and stigma against adult education. The officer acknowledged that these conditions were not favourable, but did not find them to constitute “an exceptional circumstance to justify a positive exemption” and noted that the purpose of s. 25 of IRPA “is to give the Minister the flexibility to deal with extraordinary situations which are unforeseen by IRPA where humanitarian and compassionate grounds compel the Minister to act.”
Madam Justice Go writes at para 11: By stating the purpose of section 25 is to deal with “extraordinary situations,” the Officer’s reasons ran counter to the test for H&C as outlined in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy]. The Supreme Court of Canada determined that H&C relief should be warranted in circumstances that “would excite a reasonable [person] in a civilized community a desire to relieve the misfortunes of another:” Kanthasamy at para 21.
Additionally, at para 13: By referencing “exceptional circumstances,” and by suggesting that the stated purpose of section 25 of the IRPA is to deal with “exceptional situations,” the Decision signalled the Officer’s expectation of the Applicant to demonstrate “exceptional” hardships. Further, the Officer’s remark that insufficient evidence was provided to show that the Applicant’s “fundamental rights will be denied” also indicates that the Officer adopted a threshold of exceptionality when assessing hardships.
Madam Justice Go held that read in its entirety, the decision reveals that the officer was focusing on whether the Applicant’s hardships met the threshold of being “exceptional” rather than considering whether the Applicant’s circumstances as a whole justified H&C relief.
Disclaimer: The information on these pages is for general use only and should not be relied upon as legal advice. The summary here is not designed to be comprehensive. It is designed to collect some cases that we believe are interesting to practitioners.
See you next edition!
