Tuesday, August 02, 2011

Cruz Pineda—gang violence as particularized risk

Cruz Pineda v. Canada (Citizenship and Immigration), 2011 FC 81 (CanLII)

Judge: Justice Kelen

Date heard: January 12, 2010

Date decided: January 24, 2011

Counsel for Cruz Pineda: Patrick J. Roche

Counsel for Minister: Jane Stewart

Place of Hearing: Toronto, Ontario

The Applicant requested judicial review of the decision of the Refugee Protection Division (RPD) denying the Applicant’s claim for refugee status on the basis of his fear of a gang in his native Honduras (para. 2).

The Applicant worked as a delivery and cash pick-up person for a large grocery chain in Tula, Honduras (para. 3). In January 2006, he and his assistant were attacked by proclaimed members of the Mara Salvatrucha (“MS-13”) gang; the Applicant was beaten and warned off from telling the police, although he did tell his employers (para. 5).

The Applicant quit his job and began working for another company. In June 2007, the Applicant was again attacked on the road by the same men from MS-13; after injuring the Applicant they told him they would spare his life only if he told them about the best trucks to rob (paras. 5-6). The Applicant agreed but instead quit his job and moved, eventually fleeing to Canada (paras. 7-9).

The RPD found that what the applicant feared had no nexus to the Convention as he was a victim of crime (paras. 12-16).

The RPD made comments that the Applicant had been targeted, namely “‘the claimant became personally subjected to the risk of the MS’” (para. 17). However, the RPD then found that the applicant faced generalized, as opposed to personalized risk (para. 19). The RPD also found that the Applicant had an Internal Flight alternative (IFA) (paras. 21-23).

The Court found that the RPD had erred in finding that the Applicant was subject to only a generalized risk, in part because of an expert opinion letter noting that people who are perceived as having crossed or slighted MS-13 were at particular risk (paras. 37-39).

In the same vein, the RPD’s finding of an IFA was unreasonable since the RPD itself recognized that MS-13 operated throughout Honduras, and the same expert evidence was clear that the Applicant would be especially targeted (paras. 40-44).


Wisdom—insufficient weight to psychiatric assessment

Judge: Justice Beaudry

Date heard: January 18, 2010

Date decided: January 21, 2011

Counsel for Wisdom: Debbie Mankovitz and Simon Gruda

Counsel for Minister: Sébastien Dasylva

Place of Hearing: Montréal, Quebec

This was a review of the refusal of the Applicant’s application on humanitarian and compassionate grounds (para. 1). The Applicant asserted that he was a national of Sierra Leone, although that was not determined (para. 3).

The Applicant was approximately 17 years old when he came to Canada, having spent time in Nigeria, Gabon, the Netherlands, and Brazil. In the latter two countries, he made refugee claims which were refused (para. 4). His Canadian refugee claim was refused in August 2006, in part because the RPD found him excluded under Article 1F(a) and 1F(c) because of a tattoo which allegedly identified him as a member of a rebel group “responsible for serious crimes against humanity in Sierra Leone” (para. 5).

Six months after the refusal (in early 2007), the Applicant was hospitalized for psychiatric reasons for five months (para. 6).

In judging the H&C application, the officer found that the applicant had not made sufficient efforts to integrate, and gave weight to the RPD’s finding that the applicant’s identity was not establish (paras. 8-9). Reference letters and the reports of a social worker and psychiatrist were given little weight (paras. 10-11).

The Court found that the officer put too much weight on the question of whether the Applicant’s identity was objectively determined, and therefore put too little weight on the medical/psychiatric evidence (paras. 13-14).


Anthonipillai—unreasonable credibility assessment

Anthonipillai v. Canada (Citizenship and Immigration), 2011 FC 66 (CanLII)

Judge: Justice Shore

Date heard: January 18, 2010

Date decided: January 21, 2011

Counsel for Anthonipillai: Krassina Kostadinov

Counsel for Minister: Lorne McClenaghan

Place of Hearing: Toronto, Ontario

In this extremely brief decision, Justice Shore notes that “The Applicant has countered every single finding the RPD made in its brief reasons on the Applicant’s credibility in a manner that casts serious doubt on the essence and substantiation of the findings” (para. 7). Furthermore, “In this matter, the RPD did make core findings that were unsubstantiated by the evidence before it …” (para. 9).


Monday, August 01, 2011

MPSEP v. Nosa—detention review, JR moot

Canada (Public Safety and Emergency Preparedness) v. Nosa, 2011 FC 76 (CanLII)

Judge: Justice Martineau

Date heard: October 6, 2010

Date decided: January 21, 2011

Counsel for Nosa: Idorenyin E. Amana, Esq.

Counsel for Minister: Helen Gray

Place of Hearing: Ottawa, Ontario

The Minister applied for a judicial review of a Member of the Immigration Division’s (ID) decision to release Nosa from detention (para. 1). The Court declined to decide the decision on its merits, finding it was moot (para. 23).

Nosa arrived in Canada with another person’s passport (Mavis Idemudia), but when asked gave the name of Noah Sho-Silva, although he had no documents to confirm this identity (para. 2). He stated that he had used his genuine documents to enter the US, and had purchased false documents and entered Canada on those (para. 3). Evidence on his person did not match the refugee claim he made (para. 4).

Since Nosa’s identity was not confirmed, he was detained. This detention was upheld at a 48-hour review, and again at a 7-day review (paras. 5-7). His detention continued to be upheld on the basis that the CBSA was making reasonable efforts to confirm his identity while he was not being fully cooperative (paras. 8-10). Then in an April decision, the ID found that Nosa had recently been cooperative, whereas the CBSA had not continued making reasonable efforts. Therefore, the ID released Nosa on the basis of reporting conditions and a $3000 bond (para. 11-12).

The procedural issues raised by the Respondent were rejected by the Court (paras. 15-21).

The Court found the issue moot (para. 23). The Court noted that Nosa had been released 9 months previously, and that the Minister had not sought to stay the release (para. 26).

The evidence submitted by the Minister was about the alleged errors in the ID decision. However, the Court notes that given the language of IRPA, the issue is one of present concern with the detained person’s identity. The Minister submitted only evidence which was 9 months old (paras. 28-29). The Court further notes that there was no evidence of a continuing adversarial context, nor that judicial economy militated in favor of hearing the application (para. 33). 


Gomes Sousa—failure to assess gender issues in state protection

Gomes Sousa v. Canada (Citizenship and Immigration), 2011 FC 63 (CanLII)

Judge: Justice Noël

Date heard: January 17, 2011

Date decided: January 20, 2011

Counsel for Gomes Sousa: Laura Setzer

Counsel for Minister: Helene Robertson

Place of Hearing: Ottawa, Ontario

The applicant and her son (the minor applicant) were nationals of Brazil. They fled the abuse of the applicant’s former spouse, Marcus, who had substance abuse and other psychiatric issues. The applicant had complained to the police but was told there was little they could do (paras. 1-2). The applicant initially had some support from her parents-in-law, but they blocked the involvement of the police because the father-in-law was himself involved in criminal activity, and he subsequently threatened the applicant (para. 3).

The Court determined that main issue was sufficiently of state protection and the application of the Gender Guidelines (para. 5).

The Court relied on Dean v Canada(Citizenship and Immigration), 2009 FC 772 for the proposition that while a subjective unwillingness to go to the authorities was not, itself, sufficient to rebut state protection, circumstances may be such that they do not. The judge noted that in this case: “proper consideration of the Gender Guidelines may have led to a finding that this reticence to engage the proper authorities was more than subjective” (para. 7). The Court notes that the RPD failed to consider the Gender Guidelines when analyzing the applicant’s failure to approach the police (para. 8).

The RPD found that the applicant’s narrative about the father-in-law was implausible; the judge noted that “implausibility findings must only be made in the clearest of cases” (citing Valtchev v Canada(Minister of Citizenship and Immigration), 2001 FCT 776) (paras. 9-10). The decision concluded:

Hence, the Board’s decision in regards to the sufficiency of state protection is flawed in two aspects. Firstly, it failed to adequately assess the Gender Guidelines in order to fully address the reasons for which state protection was not sought, and secondly, it made an unreasonable plausibility finding, thus depriving the Applicants of a full and proper assessment of the reasons for which state protection was not sought. As such, the decision falls outside the range of acceptable outcomes defensible in fact and in law. The proper remedy is to send the matter for redetermination before a newly constituted panel of the Board. (para. 11)


Umubyeyi—interpretation errors

Umubyeyi v. Canada (Citizenship and Immigration), 2011 FC 69 (CanLII)

Judge: Justice Noël

Date heard: January 17, 2011

Date decided: January 19, 2011

Counsel for Umubyeyi: Isaac Owusu-Sechere

Counsel for Minister: Korinda McLaine

Place of Hearing: Ottawa, Ontario

The applicant is a Rwandan national whose refugee claim was denied on the basis that her testimony was vague, and the applicant alleged on the basis on improper translation (para. 1-2).

The decision notes that the procedural fairness issues of interpretation are to be reviewed on a correctness standard (para. 4). The Court did not review the recording of the hearing and does not speak the language of interpretation, therefore it relied on an affidavit which attested that “there were indeed discrepancies in the translation” (para. 5). The Court noted that the right to interpretation is grounded in s. 14 of the Charter, which is supported by the case law, and gives an applicant a right  to translation “the is “continuous, precise, competent, impartial and contemporaneous” (paras. 6-7).

The judge noted that applicant ought to raise the issue of interpretation at the RPD hearing (para. 7). However, this may not be possible where the language barriers are such that no one can appreciate errors are being made (para. 8).

The judge also noted that there is some division in the jurisprudence on how error-free the interpretation must be to attract reversal by the Court(para. 9). However, “the affidavit evidence is sufficient to establish a concern of the adequacy of the translation at the Board hearing” (para. 10). Specifically, there were translation errors that led the RPD to make a negative credibility finding (para. 11).

As there was nothing to suggest that the RPD Member made any errors (since the interpretation errors were not known during the hearing), the case was sent back to be reheard by the same Member.


Aguilar Zacarias—gang targeting as particularized risk

Aguilar Zacarias v. Canada (Citizenship and Immigration), 2011 FC 62 (CanLII)

Judge: Justice Noël

Date heard: January 17, 2011

Date decided: January 19, 2011

Counsel for Aguilar Zacarias: Laïla Demirdache

Counsel for Minister: Korinda McLaine

Place of Hearing: Ottawa, Ontario

The applicant was a Guatemalan national who claimed persecution at the hands of the Maras Salvatruchas (MS) gang, and one member of that gang in particular (para. 3). The applicant was a vendor in a market where he and other vendors were being extorted; he and another vendor informed on the gang, leading to one member being arrested but later released (para. 5). Eventually, the other informer was shot in an incident where the applicant was present (para. 6).

The Refugee Protection Division (RPD) found the applicant’s story credible (para. 8) and further found that the applicant’s delay in making a claim while he had a valid temporary workers permit was reasonable on the precedent of Gyawali v Minister of Citizenship and Immigration, 2003 FC 1099 (para. 9). However, the RPD found that the applicant did not have a nexus to a Convention ground (para. 10).

At the Federal Court, the Minister submitted that the risk faced by the applicant was generalized, as criminal and the MS are particularly rampant in Guatemala (para. 12). The applicant argued that he was specifically targeted because of his actions against the gang and his knowledge of the murder his co-informant (para. 13).

Justice Noël relied upon the case of Martinez Pineda v. Canada (Citizenship and Immigration), 2007 FC 365, wherein the applicant was targeted by the same gang in El Salvador (paras. 16-17). He noted that:

As was the case in Martinez Pineda, the Board erred in its decision: it focused on the generalized threat suffered by the population of Guatemala while failing to consider the Applicant’s particular situation. Because the Applicant’s credibility was not in question, the Board had the duty to fully analyse and appreciate the personalized risk faced by the Applicant in order to render a complete analysis of the Applicant’s claim for asylum under section 97 of the IRPA. It appears that the Applicant was not targeted in the same manner as any other vendor in the market: reprisal was sought because he had collaborated with authorities, refused to comply with the gang’s requests and knew of the circumstance of Mr. Vicente’s death. (para. 17)


Liang—claim supported by documentary evidence, unreliable evidence from agent of persecution

Liang v. Canada (Citizenship and Immigration), 2011 FC 65 (CanLII)

Judge: Justice Shore

Date heard: January 19, 2011

Date decided: January 19, 2011

Counsel for Kumar: Hart A. Kaminker

Counsel for Minister: Alex C. Kam

Place of Hearing: Toronto, Ontario

The applicant was a Chinese national who made a refugee claim on the basis of her belonging to an underground church (para. 8).

The Refugee Protection Division (RPD) had found that, on a balance of probabilities, the authorities were not looking for the applicant “because no warrant/summons had been left at her home.” (para. 11)

However, Justice Shore found that the documentary evidence supported the applicant’s claim that the authorities could be looking for her, notwithstanding the lack of a summons/warrant left at her home (paras. 12-14). The RPD’s conclusion was therefore unreasonable.

The RPD also found that “the evidence did not support that the Applicant has good grounds for fearing persecution in an unregistered house church” (para. 15). Justice Shore noted that, notwithstanding the lack of documentary evidence of house-church members being arrested in Fujian province, there was documentary evidence of other kinds of persecution and destruction of house-churches (paras. 16-17). In particular, Justice Shore was critical of the RPD’s reliance upon evidence produced by the Chinese government (i.e., the agent of persecution) (para. 20). Therefore, since the documentary evidence supported the claim, it was unreasonable for the RPD to deny it (para. 22).


Josile—women as a particular social group

Josile v. Canada (Citizenship and Immigration), 2011 FC 39 (CanLII)

Judge: Justice Martineau

Date heard: December 8, 2010

Date decided: January 17, 2011

Counsel for Josile: Russell L. Kaplan

Counsel for Minister: Helene Robertson

Place of Hearing: Ottawa, Ontario

The applicant was a female Haitian national who had left Haiti in 2005 and had a refugee claim rejected in the United States, following which she came to Canada and in 2007 made a claim on the basis of political opinion, social group Haitian women, and social group family (para. 3). Her father was a minor local official who had been beaten and threatened for cooperating with the police, and she also feared the level of sexual assault and lack of state protection for women (para. 4).

The Refugee Protection Division (RPD) found that the applicant was not credible regarding her family’s situation (para. 5). Regarding the other grounds, the RPD found that she feared criminals, not politically-motivated harm, and therefore was not protected by the Convention (para. 6). Finally, the RPD found that Haitian women do not face persecution as a particular social group, as any persecution they faced was, again, criminal rather than political (para. 7). She challenged the RPD’s legal analysis of criminality versus political persecution.

Justice Martineau noted that:

The situation of sexual abuse and violence against women in Haiti has recently come to the attention of the Federal Court … In this regard, the Court has cautioned the Board not to import into the definition of a Convention refugee, legal requirements which are specific to section 97 when the Board is assessing whether the fear of persecution is based on a Convention ground in light of section 96 of the Act. (para. 11)

Having reviewed the case law, Justice Martineau noted:

Indeed, a gender-specific claim cannot be rejected simply because the group in question or its members face general oppression and the claimant’s fear of persecution is not supported by an individualized set of facts. Where the claimant has not, himself or herself, experienced the type of persecution, he or she fears, the claimant can use evidence of similarly-situated persons to demonstrate the risk and the unwillingness or inability of the state to protect … (para. 22)

Justice Martineau then turned to similar immigration cases (Dezameau v. Canada(Minister of Citizenship and Immigration), 2010 FC 559 (CanLII)) as well as non-immigration jurisprudence (R. v. Osolin, 1993 CanLII 54 (S.C.C.), [1993] 4 S.C.R. 595) as well as the Immigration and Refugee Board’s own Gender Guidelines, all as authority for the proposition that rape and sexual assault, by their very nature, target women as women (paras. 24-27). Therefore, according to those and other authorities, women fearing sexual assault are a particular social group (paras. 28-32). Therefore the RPD’s finding that nexus had not been established was unreasonable (para. 33).

Justice Martineau also criticized the RPD for making comments about the fact that boys can also be victims of rape (irrelevant, since in that circumstance they are a particular social group in themselves) (para. 34); and stated that “The Court is also appalled by certain gratuitous statements of the Board” about the crime of rape (para. 35).

Unusually, Justice Martineau went further than simply overturning the decision by directing the RPD to consider the new circumstances and risks arising out of events in Haiti since the initial claim was heard (paras. 38-39).


Kumar—failure to assess credibility

Kumar v. Canada (Citizenship and Immigration), 2011 FC 45 (CanLII)

Judge: Justice Bédard

Date heard: January 11, 2011

Date decided: January 17, 2011

Counsel for Kumar: Michel Le Brun

Counsel for Minister: Isabelle Brochu

Place of Hearing: Montreal, Ontario

The applicant was an Indian national of the Hindu religion from the Punjab region who alleged persecution on the basis of his having been suspected of aiding two friends who were Sikh militants (para. 3).

The Refugee Protection Division (RPD) rejected the claim on the basis that the applicant had an internal flight alternative (IFA) to Bombay. The RPD had not assessed the applicant’s credibility because, having found that there was an IFA, the RPD stated it was not necessary (para. 4).

Justice Bédard noted that the standard of review in assessing IFA was reasonableness (para. 6). She found that the RPD committed errors and that its decision out to be overturned (para. 10).

The RPD could not have assessed the issue of IFA without accepting certain parts of the applicant’s story as true. This is simply because the RPD cannot assess an IFA without regard to the circumstances, which it can only do with with reference to the claim (paras. 13-16). The RPD could not have accepted only the part of the claim which supported the finding of the IFA without some reason (para. 16).

However, that selective acceptance is exactly what the RPD did. It explicitly stated that it made its finding that there was an IFA “even if the claimant’s story had been true” (para. 17). However, it rejected other parts of the applicant’s story that militated against the finding of an IFA, i.e. his argument that the police would be looking for him throughout the country (paras. 18-21). The RPD could not accept certain parts of the claim and reject others without explicitly stating why it did so (para. 21).