Saturday, February 18, 2012

Shinmar—need for a separate s. 97 analysis

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

http://canlii.ca/en/ca/fct/doc/2012/2012fc94/2012fc94.html

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.

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