Sunday, February 19, 2012

Martinez Lucas—persuasive decision

Martinez Lucas v. Canada (Citizenship and Immigration), 2011 FC 1443

Judge: Justice Boivin; Date heard: December 5, 2011; Date decided: December 19, 2011; Counsel for Martinez Lucas: Alain Joffe; Counsel for Minister: Daniel Latulippe & Lyne Prince; Place of Hearing: Montréal, Quebec.

The Applicants were citizens of Mexico, whose claims were denied on the basis of lack of credibility and state protection. The court found no flaw in the credibility analysis, but overturned the decision on the issue of state protection.

In making its finding on state protection, the RPD had relied on a persuasive decision on state protection in Mexico. The Court found it had erred in doing so:

…In so doing, the panel failed to explain the content of the decision in file TA6-07453, failed to draw any parallels between that case and the present case and/or failed to provide the balanced approach that was required. The panel erred by taking this shortcut and adopting such an expeditious approach (para. 26).

The decision was therefore overturned.

Hadad—considering positive factors

Hadad v. Canada (Citizenship, Immigration and Multiculturalism), 2011 FC 1503

Judge: Justice O’Keefe; Date heard: October 6, 2011; Date decided: December 20, 2011; Counsel for Hadad: Tiffani M. Paulsen, Q.C. & Candace D. Grant; Counsel for Minister: Don Klaassen; Place of Hearing: Saskatoon, Saskatchewan.

This was a judicial review of a refused application for rehabilitation. The Applicant was a Jordanian Christian who had lived in Israel since his family moved there when he was a child. The Applicant later fled to the US, where his father lived, due to continuing persecution of the family. In 1990, the Applicant’s father burned down his store, and due to his involvement the Applicant was convicted of arson-related charges. The Applicant also had a conviction on the basis of misuse of food stamps.

The Applicant was sentenced to a minimum of seven years. In prison he completed his GED and held jobs. He was deported back to Israel where he faced persecution, as previously. He tried and failed to move to Canada, and eventually moved (illegally) back to the US. He was again deported, and then came to Canada on a temporary stay, without revealing his criminal record.

In Canada, the Applicant married a Canadian citizen, and they had children. He obtained a work permit, and opened a construction business which employed three full-time staff. He is active in the community.

The Court noted that following factors were considered:

The following factors were listed in the officer’s decision in favour of and against the applicant’s rehabilitation:

In favour of rehabilitation:

- No criminal activity since being paroled in 1998;

- Canadian wife and children;

- Applicant’s statement that prison changed his life and rehabilitated him;

- Active member in church and community;

- Positive reference letters from members of his community;

- Prompt application for work permit to support his family; and,

- Owner and operator of growing construction business.

Against rehabilitation:

- Past convictions of serious criminality;

- Failure to apply for rehabilitation before entering Canada;

- Applicant was not eligible for rehabilitation when he entered Canada;

- Application did not abide to US law and was therefore deported;

- Applicant showed lack of respect to US law by lying to police officer;

- Applicant’s application for judicial review of decision denying his refugee claim was dismissed;

- Deportation order issued against applicant in 2008; and,

- Applicant is currently in non-compliance with Canadian immigration law (para. 46).

The Court found that the officer had placed too much emphasis on the Applicant’s past criminal record—which, after all, was a necessary pre-requisite to a rehabilitation application—and had not considered the factors which suggested the Applicant would be unlikely to commit crimes in the future. Therefore the finding was overturned.

Cetinkaya—wrong definition of torture, reasonable explanation for lack of corroborating documents

Cetinkaya v. Canada (Citizenship and Immigration), 2012 FC 8

Judge: Justice Russell; Date heard: December 8, 2011; Date decided: January 4, 2012; Counsel for Cetinkaya: Alla Kikinova; Counsel for Minister: Julie Waldman; Place of Hearing: Toronto, Ontario.

The Applicant was a Turkish citizen of Kurdish ethnicity. He alleged a profile as a Kurdish activist who had been tortured by the Turkish authorities. The RPD said that he was not credible, because he had not corroborated his participation in demonstrations with documentary evidence. Furthermore, the RPD found that he had not corroborated his allegations of torture and mistreatment (beatings). This lead the RPD to find that the Applicant was intentionally misleading them. The RPD stated that if the Applicant had been tortured, he would have been more severely hurt.

The Court took issue with a number of the RPD’s findings. The court found that the RPD had unduly relied on the port-of-entry notes to impugn the Applicant’s credibility, noting:

It is an error of the RPD to impugn the credibility of the Applicant on the sole ground that the information provided by the Applicant at the POE interview lacks details. The purpose of the POE interview is to assess whether an individual is eligible and/or admissible to initiate a refugee claim. It is not a part of the claim itself and, consequently, it should not be expected to contain all of the details of the claim (see also Hamdar v Canada (Minister of Citizenship and Immigration) 2011 FC 382 at paragraphs 43 through 48, and Jamil v Canada (Minister of Citizenship and Immigration) 2006 FC 792 at paragraph 25.) (para. 51)

The Court also found that, contrary to the RPD’s findings, it was not the Applicant who said at the hearing that he was not tortured, but that rather this was a statement of the panel, and furthermore that it was statement based on a lack of understanding of what torture is.

M: So why I am trying to ask you this question. Being beaten is one thing. Being abused by the police is one thing. Torture is a very serious word. So if you were tortured you would have been very severely hurt. But since you just said there was no sign of torture that means you were beaten up by the police, correct.
I: I was beaten, they were beaten to my soft tissues, they were careful not to break my bones, when I gave in answer, and they did not like my answer, they would beat me.

So the Applicant says he was “beaten” by the police. In fact, he explained in some detail what they did to him, including falaka. It is the RPD who says he was not tortured and who makes a desperate and unavailing attempt to make the Applicant agree with its own mistaken view of what torture is. In any event, the Applicant testified that he was severely hurt. The RPD’s logic is that someone can only be tortured if the signs of the torture are visible; being severely hurt without marks on the body is not enough. There is no authority for this conclusion in law or common sense. It is also difficult to understand why the RPD thinks that being beaten up by the police cannot be torture: “Being abused by the police is one thing. Torture is a very serious word.” Torture is a serious word and, accordingly to all the evidence before the RPD, it happened to the Applicant. (paras. 52-53)

The Court noted that the Applicant’s signature at the end of the PIF does not include “declaration at the end of the document that the
information is complete, true and correct”, nor in signing it has a claimant sworn that the narrative if complete or that he has written the narrative himself (para. 55). The Applicant had, however, made such a oath about the fact that he had been tortured (para. 56). The RPD’s findings on credibility were unreasonable and therefore overturned (para. 58).

Furthermore on the RPD’s alternative findings that there was no documentary evidence to support the Applicant’s findings, the Court noted that there was corroborating evidence in that the documentary evidence described the same kind of mass arrests at Newroz as detailed by the Applicant.

Saturday, February 18, 2012

Barua—durable change

Barua v. Canada (Citizenship and Immigration), 2012 FC 59

Judge: Justice Shore; Date heard: January 12, 2012; Date decided: January 17, 2012; Counsel for Barua: Viken G. Artinian; Counsel for Minister: Salima Djerroud; Place of Hearing: Montréal, Quebec.

The Applicant was a practicing Buddhist in Chittagong, Bangladesh. He was involved in the administration of his temple.

The RPD denied his claim on the basis that a change in the government meant he no longer had objective grounds to fear persecution.

The Court noted that while the current government had been elected on a platform of assisting and protecting minorities, many of its election promises had not been kept. The Court notes that

It is established law that for a change of circumstances to be valid, “the change [must] be meaningful and effective enough or substantial, durable and effective enough to make the applicants’ fear unreasonable and thus, without foundation” (Tariq v Canada (Minister of Citizenship and Immigration), 2001 FCT 540, 205 FTR 252 at para 31).

The Court cited further authorities for this proposition, including the UNHCR handbook, and decided that the RPD’s failure to conduct the analysis was fatal to its decision.

Shinmar—need for a separate s. 97 analysis

Shinmar v. Canada (Citizenship and Immigration), 2012 FC 94

Judge: Justice O’Reilly; Date heard: September 28, 2011; Date decided: January 24, 2012; Counsel for Shinmar: Melody Mirzaagha; Counsel for Minister: Alex Kam; Place of Hearing: Toronto, Ontario.

The Applicant was an Indian citizen of the Dalit case. The RPD found her to be not credible, and therefore denied her claim under ss. 96 and 97.

The Court found that while it would not overturn the RPD’s findings on credibility, and therefore on s. 96, the RPD had failed to do a separate analysis on whether the objective evidence (i.e. country conditions documents) revealed that the Applicant would suffer a risk of death or cruel and unusual treatment under s. 97. Therefore the claim was sent back to be reconsidered on the s. 97 analysis only.

Shkabaki—blood feuds as political persecution, alternative modes of state protection

Shkabaki v. Canada (Citizenship and Immigration), 2012 FC 177
Judge: Justice O’Keefe; Date heard: January 18, 2012; Date decided: February 8, 2012; Counsel for Shkabaki: Michael Brodzky; Counsel for Minister: Norah Dorcine; Place of Hearing: Toronto, Ontario.

The Applicants were a family from Albanian (although one child has US citizenship). After the principal applicant had married his wife, they discovered they were distant cousins, which was in violation of Kanun law. One family accepted the marriage, but the wife’s family did not, beginning a blood feud. The family was threatened, and the wife’s family rejected mediation and compensation. The Principal Applicant entered into traditional confinement. There were more threats and attempts to abduct the wife.

The RPD found that the Principle Applicant had not credibly established the elements of his claim, nor had the Applicants rebutted the presumption of state protection. The RPD also found that the Applicants, if victims, were victims of criminality which did not give them a nexus to the Convention.

The Applicants argued that there is a difference between most blood feud victims, where the issue may be related to criminality, and their blood feud, which was related to a customary law violation on the freedom to marry, which is an essential human right. Justice O’Keefe agreed, stating:

I do not agree with the respondent that this case pertains to revenge killings as in other blood feud cases. The facts in this case are not based purely on criminality, revenge or personal vendetta (see Zefi above, at paragraph 40). Rather, the persecution arises from a refusal to abide to customary Albanian law that limits the internationally recognized right to marry freely. As such, I find that the applicants fall within the scope of the “particular social group” category described by the Supreme Court as “groups defined by an innate or unchangeable characteristic”, and to a lesser extent also the category of “groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association” (see Ward above, at paragraph 70). Further, unlike the applicant in Ward above, whose fear arose due to his actions, the fear of persecution faced by the applicants in this case arose specifically due to their association in a social group of individuals that marry contrary to the Karun (see Ward above, at paragraph 79).

Furthermore, on the issue of state protection, the Court noted that (a) the Applicants did contact a mediation/reconciliation commission, to no avail; and (b) the documentary evidence was clear that the police tended not to get involved until after a violent crime had taken place.

Finally, the Court found that the credibility analysis was flawed in that it did not take all of the evidence into account, including the Applicants’ explanations for what were found to be flaws in their testimony.