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REFUGEE PROTECTION - Persecution - Religion

Thursday, January 24, 2019 @ 8:32 AM  


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Application by Gill for judicial review of a rejected reconsideration request in response to a refusal of an application for permanent residence under the Convention refugee abroad class. The applicant Gill and his family were Christian citizens of Pakistan. They claimed to be at risk from a certain individual and the Muttahida Quami Movement (MQM) in Pakistan. Gill stated he had been harassed and physically assaulted and threatened with punishment and death if the family did not accept Islam. The family had an interview with a Canadian immigration officer in regard to a permanent resident application, which was refused. After the application was refused, Gill submitted a reconsideration request with new evidence of a fatwa directed against him. The officer sent a procedural fairness letter that raised concerns about the genuineness of the fatwa, in particular, questioning why Gill could not provide the fatwa at the interview. Gill submitted further explanatory documents, but the reconsideration was refused. The officer's procedural fairness email, computer notes, and reconsideration refusal were considered as evidence. Gill asserted the officer had not engaged in the appropriate two-step analysis for reconsideration. The issue was the reasonableness of the reconsideration refusal.

HELD: Application allowed. The standard of review was reasonableness. The assessment of reconsideration applications was to consist of two steps: 1) a determination of whether to reopen the application to reconsideration, and; 2) the actual reconsideration. Here, the officer had engaged with both steps by considering the evidence and then asking for clarification in the procedural fairness email. However, the officer's statements were internally inconsistent in describing which stage the officer reached. The officer had stated that the new information provided by Gill was insufficient to "reopen the application", but then indicated the further explanation given by Gill had been weighed. This indicated a reconsideration analysis had been conducted on the merits. As the officer was on the second step of the process, the reasons provided were inadequate: they did not demonstrate the officer undertook the necessary reconsideration analysis, or why the initial refusal remained unchanged. Even if the officer had not engaged in the second analysis step, the decision was still unreasonable. The procedural fairness letter invited a reply from Gill, which meant the officer had a heightened duty to explain why the information sent in response did not merit reconsideration. The officer had not considered all the documents presented by Gill in response. The reconsideration refusal was unreasonable for lacking transparency. The decision was aside and remitted back to a different officer for reconsideration.

Gill v. Canada (Minister of Citizenship and Immigration), [2018] F.C.J. No. 1206, Federal Court, A. Diner J., November 29, 2018. Digest No. TLD-January212019007