Thursday, June 23, 2011

Muhari—considering the totality of evidence and discrimination in refugee case

Muhari v. Canada (Citizenship and Immigration), 2011 FC 27 (CanLII)

Judge: Justice Scott

Date heard: December 15, 2010

Date decided: January 12, 2011

Counsel for Muhari: Michel Le Brun

Counsel for Minister: Emilie Tremblay

Place of Hearing: Montréal, Quebec

The principal Applicant and his family were of Hungarian ethnicity but Serbian citizenship. They arrived in Canada on visitors visas in January 2008. In February 2008, Kosovo declared independence from Serbia, heightening the Applicants fears of persecution based on their ethnicity (paras. 2-5).

The Refugee Protection Division (RPD) found the Applicants credible but rejected their claim on the basis that they had suffered discrimination, not persecution (para. 7).

Justice Scott reiterated the settled law that the RPD must consider all the evidence on an issue and if rejecting evidence must provide an explanation (paras. 13-15).

In the Applicant’s case, the panel referred to a piece of documentary evidence which, on the whole, supported their case; however, the panel referred only to a part of the document which supported the panel’s conclusions (para. 16). Justice Scott stated that while it was true that the panel did not have to explicitly refer or respond to each piece of documentary evidence, but added “However, where the evidence deals with an element that is crucial to the dispute, the panel’s obligation is quite different. It must refer to that evidence and explain why it did not accept it (Singh v Canada (Minister of Citizenship and Immigration), 2009 FC 485 (CanLII), 2009 FC 485, [2009] FCJ No. 616 (QL) at paragraph 15).”

Justice Scott also found that the panel had failed to consider the cumulative effect of severe discrimination, which may amount to persecution (paras. 23-25).


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