Category: Refugee Law

the Court upheld a finding that a person was ineligible to make a claim. The person had been granted withholding of removal in the USA and the Court concluded that this was equivalent to refugee status.

The court set aside a refusal of a claim for refugee status. The applicant a lesbian had alleged she would suffer persecution as a soldier due to her sexual orientation. The Court set aside the decision holding the tribunal erred in its assessment of the expert evidence; in the manner in which it dealt with the issue of prosecution vs persecution and in the manner in which the tribunal took judicil notice.

The Court set aside a decision rejecting a claim for refugee protection holding the tribunal failed to consider whether or not the person was at risk due to her religion:The Panel does not appear to have made a finding as to the Applicant’s Christian practices in China or as to her Christian convictions in Canada. The Panel does not appear to have carried out an analysis regarding these matters or made findings as to the whether the Applicant might encounter religious persecution if sent back to China.

The Court set aside a decision of the Refugee Protection Division because it failed to consider that the applicant would be denied the right to practice his religion: [29] It seems to me the RPD also erred in equating the possibility of religious persecution with the risk of being raided, arrested or jailed. This understanding of religious freedom is quite limitated and does not take into account the public dimension of this fundamental right. If one has to hide and take precautions not to be seen when practising his or her religion, at the risk of being harassed, arrested and convicted, I do not see how he or she can be said to be free from persecution. As this Court said in Fosu v. Canada (Minister of Employment and Immigration) (1994), 90 F.T.R. 182, [1994] F.C.J. No. 1813:

The Court set aside the decision rejecting a claim to refugee status. The tribunal accepted that the applicant was a Tamil from the north and was required to assess the claim against the objective evidence.

The tribunals finding on lack of subjective fear due to reavailment was unreasonable given that the Applicant was deported back to his country and therefore did not return voluntarily.

The Court set aside a decision rejecting a claim. The finding of lack of subjective fear was unreasonable given the lack of a credibility finding.

The Court set aside a decision rejecting a claim for refugee status. The Board denied natural justice by not disclosing a document it relied on to reject the claim. The Board erred in finding state protection when the state agents were the agents of persecution. Also the Board erred in finding no subjective fear given there was no credibility finding.

The Court set aside a decision that the Applicant had re availed and had no subjective fear Having made no credibility finding it was unreasonable to find no subjective fear. The tribunal also erred in finding the applicant re availed himself given the evidence of lack of intent to reavail

The Court applied the jurisprudence holding that a lack of subjective fear should only be made in the context of an adverse credibility finding citing "Shanmugarajah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 583, at paragraph 3 "it is almost always foolhardy for a Board in a refugee case, where there is no general issue is to credibility, to make the assertion that the claimants had no subjective element in their fear".