#IndigiBot: Namgis First Nation v Canada (Fisheries & Oceans), X (Re), López v. Canada (Citizenship and Immigration)

Namgis First Nation v. Canada (Fisheries and Oceans)2019 FCA 149 (CanLII) 

This is a decision that outlines procedures and processes, namely around evidence, when appealing a decision by a decision-maker. It is a good read for general administrative principles. Briefly, the First Nation appellant desired additional evidence to be included in its appeal book. The court held that no evidence should be included (and will make a separate order with reasons).  

X (Re), 2018 CanLII 141797 (CA IRB) 

XXXX XXXX (“X”) claimed that if returned to Ukraine, his country of nationality, he will be persecuted as a homosexual. X’s claim for refugee protection was heard and rejected by the Refugee Protection Division (RPD). X appealed to the Refugee Appeal Division (RAD).  

At issue in X’s case was whether there was state protection available. You can learn more about this concept here but in sum, it is whether a Convention refugee “be unable, or by reason of his or her fear of persecution, unwilling to avail him or herself of the protection of the country of nationality (citizenship)”. The RPD held that state protection was available to X and that he did not avail himself of same. The RAD held that the RPD failed to consider several reports and other evidence provided to them, and that RPD did not take a nuanced approach to state protection. The standard of review is correctness, unless the RPD had advantage of oral testimony. In the end, the RAD held that “there is a serious possibility that the Appellant will be persecuted in Ukraine based on his sexual orientation”, among other things. The RAD set aside the RPD decision and allowed the appeal, finding X to be a Convention refugee.   

López v. Canada (Citizenship and Immigration), 2019 FC 349 (CanLII) 

The Applicant, Mr. López, sought judicial review of a visa officer’s decision to refuse his application for an exemption under humanitarian and compassionate grounds (“HC grounds”). The court allowed his application “since the visa officer did not reasonably weigh the relevant factors, in particular the best interests of Mr. López’s daughter” (para 1). Initially, Mr. López was denied for having a conviction which he disputed and sought to overturn in Columbia but was unsuccessful. Mr. López asked to be granted an exemption under HC grounds. The visa officer denied under HC grounds but the court held that the officer failed to properly consider HC grounds, namely the best interests of the child. The officer only relied on the criminal conviction as reasons to deny HC grounds and the court held that this was not reasonable. Specifically, the court held, quoting another decision, that “it is the interests of the child that must prevail, not the circumstances of the child’s birth”

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