Category: Refugee Law

The Court set aside a decision based on state protection holding that the intention of the state was not sufficient to show that state protection was available.

The Court set aside a refusal of an H & C application holding it was unreasonable both in terms of its assessment of establishment and also due to the fact the officer erred in the test relating to hardship on return.

The court set aside a decision denying the applicant refugee status holding that the tribunal erred by failing to consider evidence that negated the finding of state protection.

The court set aside a decision rejecting a claim for refugee status based on the fact the applicant could obtain nationality in South Korea holding it was unreasonable because there was no certainty the nationality would be granted.

The Court set aside a decision refusing to reopen holding that the tribunal had failed to exercise its jurisdiction to determine whether or not there was a breach of natural justice: simply did not consider whether the "nature and importance" of the evidence presented by Mr. Seyoboka demonstrated that there had been a breach of natural justice. In my view, the Board is obliged, at least, to consider whether the applicant's evidence undercuts the basis on which the previous decision was made. This is certainly not to suggest that the Board has jurisdiction to reopen proceedings merely on the presentation of new evidence. Clearly, it does not. However, to respect the principle in Bougettaya, the Board must turn its mind to the question whether the applicant's evidence shows that the adverse finding against him or her was probably wrong.

The Court set aside a finding of generalized risk noting: 29 The tribunal relied on the Vickram and ProphËte cases in support of its finding the risk the applicants were facing was "generally faced by other individuals in Mexico". 30 The Vickram case involved an Indo-Guyanese claimant whose refugee claim was refused. He had testified he believed he had been targeted because of his wealth. The tribunal held the acts of violence he suffered were "random criminal acts faced generally by civilians." 31 In Vickram, my colleague Justice de Montigny pointed to Mr. Vickram's testimony he was a well-established business man with a big home and was making lots of money. Justice de Montigny held the tribunal correctly instructed itself on the law "which says the risk faced must not be indis-criminate or random and one faced generally by the entire population. The panel concluded the risk Mr. Vickam faced was of criminal activity, and that the risk was no greater than that faced by the population at large." [Emphasis mine.] 32 I agree with counsel for the applicants, the extortion and threats which Mr. Munoz alleges were not random. Mr. Munoz was specifically and personally targeted by Mr. Garcia because of his unique position - the head of sales at a car dealership which is why Garcia and his friends came there. If returned, Mr. Munoz does not fear being subject to random acts of violence by unknown criminal gangs. He fears Mr. Garcia. 33 The tribunal's reliance on Prophete is also misplaced. There is no evidence on the record Mr. Garcia extorted Mr. Munoz because he was wealthy. In fact, the last demand he made was for a free new car. I could find no evidence in which Mr. Munoz testified he was a wealthy man. Being successful does not mean that person is wealthy. 34 Prophete is of no assistance to the respondent. At the Federal Court of Appeal, cited Prophete v. Canada (Minister of Citizenship and Immigration), 2009 FCA 31, [2009] F.C.J. No. 143, that Court held a section 97(1) claim requires an individualized inquiry to be conducted on the basis of the evidence by a claimant "in the context of a present or prospective risk for him" which sup-ports the applicants' submission of specificity and uniqueness. The applicants' objections are sustained on this point.

The Court set aside a decision of the IRB that rejected a claim based on religious persecution: 15 For the Board to fairly rely upon general evidence of a diminished risk of religious persecution in China it was critically important to make specific findings about the truthfulness of Ms. Lin's account of the police raid on her church. That is so because the generalized risk facing Christians in China had to be assessed against her particular profile including her past experiences with the authorities. It was not enough for the Board to find that the instances of persecution of individual Christian congregants are now fairly rare if the authorities in her community were of a persecutory persuasion as evidenced by their earlier behaviour directed at Ms. Lin and the others in her church. Her situation may well have been one of increased risk thus taking her case outside of the statistical norm in China, and it was an error for the Board not to have conclusively resolved that point. It was also not a complete answer to Ms. Lin's alleged predicament to find that the local authorities would no longer be interested in her. What the Board needed to ask itself was whether, in her unique situation, she would be at risk of persecution if she returned home and resumed her religious practices.

The Court set aside an IFA finding noting: 28 The only issue decided by the Board in the case at bar was the existence of the IFA in San Pedro Sula. The Board correctly identified the IFA to be determinative of both a claim for protected status pursuant to section 96 as well as section 97 of the Act. To the extent that the Board uses its conclusion that a risk of maras gang violence is a generalized risk to refute the applicant's assertion that she would be persecuted in the proposed IFA, the reasoning in Pineda, supra, illustrates such assumed generalization to be faulty. This is not to say that the applicant faces a particular risk of violence which is equivalent to a positive determination on the first branch of the IFA. Rather, it undermines one of the premises the Board uses to get to its ultimate conclusion that there is no serious possibility of persecution in San Pedro Sula by the maras.

The Court set aside a finding of generalized risk noting: In short, the risk faced by an applicant ought not to be a random and generalized risk indis-criminately faced by all persons living in the country to which the applicant risks to be removed. In this case, the applicant submitted in his Personal Information Form (PIF) that he had been person-ally subjected to danger; yet the RPD did not take this into account and rather put the accent on the fact that Mr. Pineda had stated in his testimony that the Maras Salvatruchas recruited across the country and targeted all levels of society, regardless of the age of the persons contemplated. 14 On reviewing the reasons accompanying the RPD's decision, it appears that the member did not make any unfavourable findings regarding the applicant's credibility. It is true that on reading the hearing transcript, the member sometimes gives the impression that he doubts the truthfulness of certain explanations given by Mr. Pineda. However, he did not make the applicant's credibility an explicit reason for his decision and therefore we cannot speculate on his findings in this regard. 15 Under these circumstances, the RPD's finding is patently unreasonable. It cannot be accepted, by implication at least, that the applicant had been threatened by a well-organized gang that was ter-rorizing the entire country, according to the documentary evidence, and in the same breath surmise that this same applicant would not be exposed to a personal risk if he were to return to El Salvador. It could very well be that the Maras Salvatruchas recruit from the general population; the fact re-mains that Mr. Pineda, if his testimony is to be believed, had been specifically targeted and was subjected to repeated threats and attacks. On that basis, he was subjected to a greater risk than the risk faced by the population in general.

The Court set aside a finding based on generalized risk noting that the tribunal failed to understand the basis for the claim: 54 In my view, the Board has misconstrued the fundamental basis of the Applicants' claim and the risks they face. 55 The Applicants fear civilian militants. Jean Abraham and Antoine David fear persecution from the Lavalas movement and not from the government of Haiti. It was this fear that led them to flee Haiti. The Board appears to have concluded that the brothers fear Aristide, who is no longer ; lead-ing the country, so that there has been a change of circumstances in Haiti and Jean Abraham and Antoine David need no longer fear political persecution and personal risk. 56 The evidence before the Board shows that Lavalas militants are able to carry out violence with impunity and that the police cannot provide protection. The situation which the Applicants face to-day is the same one they faced when they fled: violence at the hands of civilians who belong to gangs loyal to the Lavalas party which is directed at political opponents such as Jean Abraham and Antoine David.