Pinto Ponce—actual practices of state protection must be assessed

Pinto Ponce v. Canada (Citizenship and Immigration), 2012 FC 181 (CanLII)

Judge: Justice Russell; Date heard: January 17, 2012; Date decided:February 8, 2012; Counsel for Pinto Ponce: J. Byron M. Thomas & Raoul Boulakia; Counsel for Minister: David Duggins; Place of Hearing: Toronto, Ontario.

The applicant is a citizen of Bolivia who suffered domestic violence at the hands of her common-law partner. In 2005, she made a complaint to the police after being attacked and kicked out of the house. The police officer laughed at her and told her to be a better wife. He also called her abusive partner, and spoke with her partner’s husband, a senior police officer.

The partner found out about the report, presumably through his uncle. In retaliation, he beat and raped the applicant. The applicant fled to live with her brother in another city, but her partner found there there and assaulted her in public, until bystanders intervened.

The applicant made another complaint at the original police station, and spoke to a different officer who was more receptive. The applicant then went into hiding at her uncle’s home in a third city, La Paz. She did not go out lest her partner find her. Her parents told her that the police were not investigating, and that her partner was still looking for her.

At her uncle’s advice, the applicant fled Bolivia to the United States, where she lived illegally until she found out about the Canadian refugee system in July 2009, finally coming to Canada in December 2009.

The Refugee Protection Division (RPD) denied the applicant’s claim on the basis of state protection (para. 13).

Justice Russell found that the standard of review on the question of state protection as a whole was reasonableness (paras. 26-27), but that on the issue of the legal test, the standard was correctness (para. 28).

On reviewing the objective evidence of state protection in Bolivia for victims of domestic violence, the RPD had stated:

…I accept that Bolivia’s past history of offering protection to women as victims of domestic violence was lamentable combined with societal beliefs that accepted this violence as a way of life. Yet, as this claim is forward looking, I accept that Bolivia is demonstrating an awareness of its past problems and is making advances through legislation, application and continued dialogue within the government, its citizens and foreign countries on further efforts to improve its past weakness related to domestic violence. (cited at para. 72)

Justice Russell found that the RPD had failed to look past the government initiatives to see whether “there is adequate protection in practice” (para. 73). He stated that there was “certainly a significant amount of evidence before the RPD that Bolivia’s “lamentable” past history of protecting victims of domestic violence has not changed”.

Justice Russell relied on E.Y.M.V. v Canada (Minister of Citizenship and Immigration) 2011 FC 1364, which itself relies on Jaroslav v. Canada (Minister of Citizenship and Immigration), 2011 FC 634 and Beharry v.Canada (Minister of Citizenship and Immigration), 2011 FC 111.

Delgado Ruiz—ignored evidence that persecutors would continue to pursue

Delgado Ruiz v. Canada (Citizenship and Immigration), 2012 FC 163 (CanLII)

Judge: Justice Harrington; Date heard: January 31, 2012; Date decided: February 7, 2012; Counsel for Delgado Ruiz: Cristina Marinelli; Counsel for Minister: Daniel Baum; Place of Hearing: Montréal, Quebec.

The applicants were citizens of Colombia, and the principal applicant worked for the Colombian Embassy in Guatemala, at which position she began receiving threats from members of FARC and Maras to force her to provide documents to their members. When she refused and left her position at the Embassy, she was the victim of further threats and shots were fired at her (paras. 1-2).

The Refugee Protection Division found that the applicants had no status in Guatemala. They further found that while the principal applicant had been in danger, the danger would now have dissipated given the time passed and since she no longer worked for the Colombian government and therefore had nothing they wanted (paras. 3-4).

Justice Harrington found that while the RPD’s conclusion had some logic to it, i.e. that FARC wouldn’t care about the principal applicant anymore, the conclusion ignored evidence before the RPD that FARC would continue to pursue former targets as perceived class enemies regardless of the passage of time (paras. 8-9). Therefore, the RPD fell into the error described in Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425 of failing to confront contradictory evidence (para. 10)

Zazai—H&Cs where applicant has a TRP and may get a PRRA

Zazai v. Canada (Citizenship and Immigration), 2012 FC 162 (CanLII)

Judge: Justice O’Keefe; Date heard: January 16, 2012; Date decided: February 7, 2012; Counsel for Zazai: Krassina Kostadinov; Counsel for Minister: Martin Anderson; Place of Hearing: Toronto, Ontario.

The applicant was an Afghan citizen whose application for permanent residence on humanitarian and compassionate grounds (H&C) had been denied.

At the time of the court hearing, he had been married to a Canadian citizen since 2002, had three Canadian children, and was expecting a fourth (para. 3).

The applicant had arrived in Canada in November 1993 as a stowaway, aged 25. In a refugee claim, he had claimed he had been a member of KHAD (para. 4).

Because KHAD had committed crimes against humanity, his refugee claim was denied on the basis of exclusion, and leave was denied at the Federal Court in 1996 (paras. 5-6). An application as a post-determination refugee claimant in Canada was also denied for inadmissibility in 2001 (para. 6).

A deportation order was issued in January 2002. The applicant sought leave, which was granted in May 2003, but reversed on appeal in March 2004. The case went back to the Federal Court and then back to the Court of Appeal in Zazai v Canada (Minister of Citizenship and Immigration),2005 FCA 303 (para. 7).

A July 2003 H&C was denied in April 2004 (para. 8). In a new H&C in May 2006, the applicant claimed that his statements about membership in KHAD were false, and he had in fact been a student (para. 9). In updated submissions in March 2009, the applicant explained that his children could not live in Afghanistan because of the danger there, and his wife, who was originally from Afghanistan, because she had fled a forced marriage to a powerful warlord (para. 10).

The applicant was granted a TRP in February 2010, and began reporting at CBSA’s request in May 2011. There was also a PRRA from June 2006, on which no decision had ever been made (paras. 11-13).

The H&C was denied in May 2011. The officer found that he was would by the previous decisions on inadmissibility (paras. 14-16).

The officer considered a number of factors going to establishment and family separation in Canada (para. 17). The officer then went on to consider that “the risks to the applicant should he be removed were not currently relevant due to his valid TRP. Further, should his TRP be removed in the future, the applicant would be offered a restricted PRRA prior to his removal.” (paras. 17-18)

Balancing establishment and the best interests of the children against the applicant’s membership in KHAD (a limited a brutal purpose organization), the officer found there was not sufficient reason to grant an exemption (paras. 19-21).

Justice O’Keefe reviewed the jurisprudence on best interests of the child (BIC):

…It is not sufficient to merely state that the interests have been taken into account or to simply refer to the children’s interests or to the relationships with the children involved (see Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475 (CanLII), 2002 FCA 475, [2003] 2 FC 555 at paragraph 32). The children’s interests must be well identified and must be defined and examined with a great deal of attention (see Hawthorne above, at paragraph 32; and Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 (CanLII), 2002 FCA 125, [2002] FCJ No 457 at paragraphs 12 and 31).

The best interest analysis requires officers to demonstrate that they are alert, alive and sensitive to the best interests of the children. In Kolosovs v Canada (Minister of Citizenship and Immigration), 2008 FC 165 (CanLII), 2008 FC 165, [2008] FCJ No 211, Mr. Justice Douglas Campbell described the meaning of being alert as demonstrating “an awareness of the child’s best interests by noting the ways in which those interests are implicated” (at paragraph 9). Being “alive” to a child's best interests means demonstrating that the officer understands the perspective of each of the participants in a given fact scenario, including the child if this can reasonably be determined (see Kolosovs above, at paragraph 11). Finally, being “sensitive” means clearly articulating the child’s suffering that would result from a negative decision and whether, together with a consideration of other factors, that suffering warrants H&C relief (see Kolosovs above, at paragraph 12). (paras. 51-52)

Justice O’Keefe also notes that BIC does not automatically “prevail over other considerations” and the weight given to BIC is up to the officer (para. 53).

In this case, Justice O’Keefe found that while the officer had acknowledged that the applicant’s TRP could be lifted, he found that this was countered by the fact that the applicant would be offered a PRRA before removal. Referring to Hinzman v Canada (Minister of Citizenship and Immigration), 2010 FCA 177, Justice O’Keefe noted that PRRAs were significantly different from H&Cs (para. 59). Therefore, the officer’s reliance on the prospect of a future PRRA was faulty, since that process would not take BIC into consideration, and further since the applicant’s TRP could be cancelled at any time (para. 60).

Lin—improper rejection of personal documents based on availability of false documents

Lin v. Canada (Citizenship and Immigration), 2012 FC 157 (CanLII)

Judge: Justice Russell; Date heard: January 10, 2012; Date decided: February 6, 2012; Counsel for Lin: Lindsey Weppler, Agent for Jacqueline Lewis; Counsel for Minister: Lucan Gregory; Place of Hearing: Toronto, Ontario.

The applicant was a citizen of China and professed Christian whose claim for protection was denied by the Refugee Protection Division (RPD).

The applicant claimed that in October 2007, he missed a service at the underground church which his family attended. A fellow member’s mother phoned him and told him that his parents had been arrested by the Public Security Bureau during a raid on the church (para. 3). The applicant was confident that his parents would not disclose that he was a member of the church, so he felt safe going to the police station to try to bail his parents out, whereupon he was detained for three days.

He and his parents were originally released upon payment of 100,000 Yuan [about $12,960.00 CDN], and they were under a reporting regime, weekly and sometimes more often. The family continued practicing in their home, and not attending their former underground church. The family decided that the applicant ought to leave China, and he stopped reporting to the PSB. With the assistance of a smuggler, the applicant left China in January 2008 and came to Canada via Dubai and Israel (paras. 4-6).

After the applicant made his claim, he alleged that he had learned that his parents had gone into hiding, and that they were subsequently arrested and were being held in prison (para. 7).

Justice Russell found that the RPD’s reasoning in rejecting the applicant’s documents was faulty. The RPD rejected the documents on the basis that there was evidence that false documents were widely available in China. Justice Russell stated:

The RPD’s reasoning would mean that even genuine documents would not be acceptable. The fact that inauthentic documents are available does not relieve the RPD of the duty to determine whether particular documents presented by a claimant are genuine or not. The Respondent argues that the “fraudulent documents” ground merely supports the RPD’s earlier finding that the Applicant’s evidence is not acceptable because it is not supported by the objective evidence referred to by the RPD. In my view, this would mean that the RPD excluded evidence on the sole basis that it contradicts its own information package, and not because it has any inherent defects. (para. 54)

Justice Russell found that the RPD was obliged to actually look at the documents to determine whether they were fraudulent (para. 55), particularly since it accepted his passport (paras. 56-58).

Siavoosh—stay of removal during hunger strike

Siavoosh v. Canada (Public Safety and Emergency Preparedness), 2012 FC 149 (CanLII)

Judge: Justice Shore; Date heard: February 3, 2012; Date decided: February 3, 2012; Counsel for Siavoosh:Robin L. Seligman; Counsel for Minister: Michael Butterfield;Place of Hearing: Ottawa, Ontario (by tele-conference)

The applicant was an Iranian national of Kurdish ethnicity and a practitioner of Sahaja Yoga [it is unclear from the decision what religion he professed, but risk due in part to religious beliefs was a factor in his fear of return].

The decision is brief and lacks detail, but Justice Shore granted a stay until Citizenship and Immigration Canada made a decision on a humanitarian and compassionate application and a second PRRA, and until the Court had decided on an application for judicial review of an officer’s refusal to defer removal.

He—reasonable treatment of evidence on house churches versus state sanctioned churches

He v. Canada (Public Safety and Emergency Preparedness), 2012 FC 148 (CanLII)

Judge: Justice Rennie; Date heard: January 17, 2012; Date decided: February 3, 2012; Counsel for He: Catherine Bruce; Counsel for Minister: Lldiko Erdei; Place of Hearing: Toronto, Ontario.

The applicant was a Chinese citizen and Christian, who attended an (illegal) house church. On a business trip to Canada, he was advised by his family back in China that the Public Security Bureau was looking for him. He made a claim for refugee status in February 2007, and it was denied in March 2009 because the Refugee Protection Division did not believe he was a Chinese citizen, and therefore rejected his claim without considering the merits (paras. 1-2)

The applicant filed a PRRA, and the PRRA officer accepted his identity as a citizen of China (para. 3). The PRRA officer also accepted that the applicant was a practicing Christian, however, the PRRA officer:

…concluded that the applicant had not put forth “objective documentary evidence to support that his profile in China is similar to those that currently face a danger of torture, or a risk to life, or of cruel and unusual treatment or punishment in that country.”  The PRRA Officer further concluded that “the evidence before [him] does not support that the Chinese authorities are aware [that the applicant is a practicing Christian]”. (para. 5)

Justice Rennie relies on a decision of Justice Zinn on similar facts (Zhu v Canada (Citizenship and Immigration), 2008 FC 1066). In that case, Justice Zinn had noted that it was an error “not to take into account the doctrinal differences between the state sanctioned churches and unregistered churches” (para. 12).

The PRRA officer relied on evidence of increasing tolerance towards members of stat-sanctioned churches, but failed to differentiate the fact that the applicant was a member of an illegal house church (paras. 13-14).

Justice Rennie also cited another case on similar facts, a decision of Justice Russell in Yin v Canada (Citizenship and Immigration), 2010 FC 544.

Excerpt: Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice - Key Findings and Recommendations

UN High Commissioner for Refugees, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice - Detailed Research on Key Asylum Procedures Directive Provisions, March 2010, available at: http://www.unhcr.org/refworld/docid/4c63e52d2.html [accessed 14 July 2012], footnotes omitted

[beginning at page 332]

… at the time of UNHCR’s research, the only mode for the designation of third countries as safe countries of origin under the APD was the second mode, set out in Article 30. This notion thus forms the subject of focus of this research.

…

With regard to the national designation of third countries as safe countries of origin, Article 30 APD defines the criteria to be applied, and the circumstances and sources of information to be taken into account. The APD does not prescribe the authority responsible for the national designation of third countries as safe countries of origin, nor the modalities for national designation. However, the use of the  term ‘national designation’, and the requirement to notify the Commission of countries which have been nationally designated in accordance with Article 30, suggests a formal act of designation which is executed independently of and prior to its application in the examination of any individual application. However, as will be seen in the subsections below, UNHCR’s research has found that there are a number of Member States which have national legislation in place which permits the application of the safe country of origin concept on a case-by-case basis without a transparent, formal, published act of national designation as foreseen by Article 30 APD.

UNHCR has voiced its reservations about the APD provision allowing Member States to retain or introduce legislation that permits national designation of third countries as safe countries of origin. UNHCR notes that such national designation is not conducive to, and indeed militates against, the uniformity of approach which is required to establish a Common European Asylum System. As will be shown, UNHCR’s research has revealed that, with regard to those Member States surveyed that apply the safe country of origin concept, there is divergence regarding those countries which have been assessed to be safe countries of origin.

[page 333]

Recital (21) APD recognizes that the “designation of a third country as a safe country of origin … cannot establish an absolute guarantee of safety for nationals of that country”, and states that the assessment underlying the designation of a third country as a safe country of origin, by its nature, can only take into account “the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in the country concerned”.

As such, an application by an applicant from a designated safe country of origin must nevertheless be subject to an individual and complete examination in which the presumption of safety can be rebutted. Therefore, designation of a country as a safe country of origin cannot be a ground for inadmissibility. It must be stressed that Article 31 APD stipulates that the concept of safe country of origin cannot be applied to a particular applicant unless there has been an individual examination of the application. This individual examination must be conducted by the determining authority. While under Article 23 (4) (c) (i) APD, it may be a ground for the prioritization and/or acceleration of the examination of the application, the examination must nevertheless be individual, and comply with the basic principles and guarantees of Chapter II APD.

According to the APD, a designated safe country of origin can only be considered to be safe for a particular applicant if, after an individual examination of the application, it is found that the applicant is a national of the country and “has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances”. For this reason, the national designation of a country of origin as safe is not relevant for an applicant who shows that “there are serious reasons to consider the country not to be safe in his/her particular circumstances”. Moreover, recital (17) reiterates that a third country cannot be considered as a safe country of origin for a particular applicant if s/he presents serious counter-indications. It is, therefore, implicit that national legislation which sets out further rules and modalities for the application of the safe country of origin concept should ensure that applicants have an effective opportunity to “present serious counter-indications” and “submit any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances.”

In this regard, UNHCR recommends that Member States inform all applicants at the outset of the asylum procedure when their country of origin has been designated as or is considered to be a safe country of origin; and explain the implications for the examination of the application. Applicants should be given an effective opportunity to consult a legal adviser in this regard. Member States should offer all applicants from nationally-designated safe countries of origin the opportunity of a personal interview, in which they are explicitly asked whether there are

any grounds for considering that the country is not safe in their particular circumstances, thereby giving an effective opportunity to rebut the presumption of safety. UNHCR regrets that Article 12 (2) (c) APD permits the [page 334] omission of the personal interview on safe country of origin grounds and strongly urges Member States not to omit the personal interview on this ground in their national legislation or in practice.

The concept of safe country of origin also has an evidentiary impact as it requires the applicant to rebut the presumption that the country of origin is safe with regard to his/her particular circumstances. However, this should not result in an unreasonably increased burden of proof on the applicant. The shared duty between the applicant and the determining authority to ascertain the facts still applies.

Finally, it is noted that under APD, where an applicant is from a  nationally-designated safe country of origin and, following an individual examination of the application, it is determined that s/he has not submitted any serious grounds for considering the country not to be safe in his/her particular circumstances, the application may be deemed to be simply unfounded or manifestly unfounded. A certification  as ‘manifestly unfounded’ may have an impact on the applicant’s right to an effective remedy.

…

However, by derogation from paragraph 1 cited above and the criteria in Annex II, Member States may retain legislation in force on 1 December 2005 that allows for the national designation of countries as safe countries of origin, as long as they are satisfied that persons in the third countries concerned are generally neither subject to persecution as defined in Article 9 of the Qualification Directive, nor torture or inhuman or degrading treatment or punishment.

Moreover, Member States, again by derogation from Article 30 (1) APD, may retain legislation in force on 1 December 2005 that allows for the national designation of part of a country as safe, or a country or part of a country as safe for a specified group of persons in that country. This is possible as long as they are satisfied that persons in that part of the country, or the specified group of persons in the country, are generally neither subject to persecution as defined in Article 9 of the Qualification Directive, nor torture or inhuman or degrading treatment or punishment.

If Member States derogate from Article 30 (1) APD, in assessing whether a country is a safe country of origin, “Member States shall have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned”.

[page 335]

…

As regards the possibility to designate a part of a country as safe, UNHCR notes that, in principle, a country cannot be considered ‘safe’ if it is so only for part of its territory. Furthermore, UNHCR wishes to emphasize that the designation of a safe part of a country does not necessarily represent a relevant or reasonable internal flight alternative. The existence of a ‘safe’ part of a country is but one element in an examination of whether a particular applicant has such an alternative. The complex questions which arise in the application of the internal protection alternative require a careful examination of the individual case in the regular procedure and should not be dealt with in an accelerated procedure.

Six of the 12 Member States under focus in this research have in place national legislation permitting the national designation of third countries as safe countries of origin, namely: Bulgaria,[28] France,[29] Germany,[30] Greece,[31] Slovenia[,][32] and the UK.[33] However, of these six Member States, only three – France, Germany and the UK – actually have operational national lists of designated safe countries of origin.

[Footnote 28:

Article 13 LAR (Amended, SG No. 31/2005) (1) (Supplemented, SG No. 52/2007): “Refugee status or humanitarian status shall not be granted with respect to an alien whose application is manifestly unfounded, where conditions under article 8 (1) and (9), respectively article 9 (1), (6) and (8) are not met and the alien: … 13. (new, SG No. 52/2007) comes from a safe country of origin or from a safe third country listed in the Minimum Common List adopted by the Council of the European Union  or in the national lists adopted by the Council of Ministers.” Article 98 (New, SG No. 52/2007) (1) “By November 30 every year the Chairperson of the State Agency for Refugees in coordination with the Minister of Foreign Affairs shall submit national lists of safe countries of origin and safe third countries to the Council of Ministers for their adoption.”

Footnote 29:

Article L.722-1-2 Ceseda: “The board [of the OFPRA] […], in compliance with relevant EC provisions in this matter, designates the list of countries
considered at the national level as safe countries of origin”. [Unofficial translation]. The concept of safe country of origin did not exist in French legislation before the adoption of the Asylum Act of 10 December 2004 (entry into force on 1 January 2004).

Footnote 30:

Section 29a APA:“(1) The asylum application of any foreigner from a country within the meaning of Article 16a (3) first sentence of the Basic Law (safe country of origin) shall be turned down as being manifestly unfounded, unless the facts or evidence produced by the foreigner give reason to believe that he faces political persecution in his country of origin in spite of the general situation there.

(2) In addition to the Member States of the European Union, safe countries of origin are those listed in Appendix II.

(3) The Federal Government shall resolve by statutory ordinance without the consent of the Bundesrat that a country listed in Appendix II is no longer deemed a safe country of origin if changes in its legal or political situation give reason to believe that the requirements mentioned in Article 16a (3) first sentence of the Basic Law have ceased to exist. The ordinance shall expire no later than six months after it has entered into force.” Article 16a (3) Basic Law: “By a law requiring the consent of the Bundesrat, states may be specified in which, on the basis of their laws, enforcement practices and general political conditions, it can be safely concluded that neither political persecution nor inhuman or degrading punishment or treatment exists. It shall be presumed that a foreigner from such a state is not persecuted, unless he presents evidence justifying the conclusion that, contrary to this presumption, he is persecuted on political grounds.”

Footnote 31:

Article 22 of PD 90/2008 (with retrospective effect from 01/12/07) states that “safe countries of origin are … third countries … which are included in the national list of safe countries of origin, compiled and kept, for the  purpose of the examination of an asylum application, by the Central Authority”.

Footnote 32:

Article 65 (3) IPA: “(3) Based on the criteria referred to in Article 30 of Directive 2005/85/EC, the Government of the Republic of Slovenia may designate third countries other than those appearing on the minimum common list. The Government of the Republic of Slovenia shall notify the European Commission thereof ”.

Footnote 33:

The UK has legislation allowing for the designation of third countries as safe countries of origin in the Nationality Immigration and Asylum Act 2002, Section 94 (3), (4), (5) and (6). Subsection 94 (3) provides for the certification of a claim as unfounded if the applicant is entitled to reside in a safe country of origin. Subsection 94 (4) lists the states originally designated by Parliament as safe countries of origin. Subsection 94 (5) and (6) of the 2002 Act allows the Secretary of State to add or remove states to those designated in the legislation ‘by order’. The 2002 Act came into force on 7 November 2002, and was amended by the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (with effect from 1 October 2004) and by the Immigration Asylum and Nationality Act 2006.]

[page 336]

At the time of UNHCR’s research, France had designated 15 countries as safe,[35] and Germany had designated the Member States of the EU, plus another two countries as safe.[36] The UK had designated 24 countries as safe. Only eight countries appeared on the lists of both France and the UK.[37] Only one country (Ghana) appeared on the list of all three States – although in the UK, Ghana was considered a safe country of origin for male applicants only.

Four Member States do not have legislation in place which provides for the ‘national designation’ of safe countries of origin, but nevertheless do have legislation in place which provides for the application of the safe country of origin concept in the examination of applications: the Czech Republic,38 Finland,39 the Netherlands40 and Spain.

[Footnote 35:

For the full list of safe third countries designated by France, see below (text at footnotes 107,108). A decision of the Board of the OFPRA made on 13 November 2009 added three countries to the list of designated safe countries of origin: Armenia, Turkey and Serbia. At the time of writing, there are, therefore, 18 designated safe countries of origin.

[page 348: “As of February 2008, the list compiled by the Board of the OFPRA featured 15 countries: … Benin, Bosnia-Herzegovina, Cape Verde, Croatia, Georgia, Ghana, India, Madagascar, Mali, Macedonia (ARYM), Mauritius, Mongolia, Senegal, Tanzania, and Ukraine.”]

Footnote 36:

Section 29a (2) APA in connection with Annex II (on Section 29a): Ghana and Senegal.

Footnote 37:

For the full UK list at time of writing, see below (text at footnote 143). Bosnia-Herzegovina, India, Macedonia, Mauritius, Mongolia and Ukraine. Ghana and Mali were also designated as safe by France, whereas they were designated as safe for men only in the UK. See below
for further details.

[page 352: “The 24 countries listed at the time of writing are: … Albania[,] Bolivia[,] Bosnia-Herzegovina[,] Brazil[,] Ecuador[,] India[,] Jamaica[,] Macedonia[,] Mauritius[,] Moldova[,] Mongolia[,] Montenegro[,] Peru[,] Serbia inc. Kosovo[,] South Africa[,] Ukraine[,] Ghana (men only)[,] Gambia (men only)[,] Kenya (men only)[,] Liberia (men only)[,] Malawi (men only)[,] Mali (men only)[,] Nigeria (men only)[,]  Sierra Leone (men only)]]

Excerpt: European Union Asylum Procedures Directive

European Union Asylum Procedures Directive, COUNCIL DIRECTIVE 2005/85/EC, of 1 December 2005, on minimum standards on procedures in Member States for granting and withdrawing refugee status, 13.12.2005 Official Journal of the European Union L 326/13 (footnotes omitted) [Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:326:0013:0034:EN:PDF]

THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular point (1)(d) of the first paragraph of Article 63 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament,
Having regard to the opinion of the European Economic and Social Committee.
Whereas:

…

(17) A key consideration for the well-foundedness of an asylum application is the safety of the applicant in his/her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he/she presents serious counter-indications.

(18) Given the level of harmonisation achieved on the qualification of third country nationals and stateless persons as refugees, common criteria for designating third countries as safe countries of origin should be established.

(19) Where the Council has satisfied itself that those criteria are met in relation to a particular country of origin, and has consequently included it in the minimum common list of safe countries of origin to be adopted pursuant to this Directive, Member States should be obliged to consider applications of persons with the nationality of that country, or of stateless persons formerly habitually resident in that country, on the basis of the rebuttable presumption of the safety of that country. In the light of the political importance of the designation of safe countries of origin, in particular in view of the implications of an assessment of the human rights situation in a country of origin and its implications for the policies of the European Union in the field of external relations, the Council should take any decisions on the establishment or amendment of the list, after consultation of the European Parliament.

(20) It results from the status of Bulgaria and Romania as candidate countries for accession to the European Union and the progress made by these countries towards membership that they should be regarded as
constituting safe countries of origin for the purposes of this Directive until the date of their accession to the European Union.

(21) The designation of a third country as a safe country of origin for the purposes of this Directive cannot establish an absolute guarantee of safety for nationals of that country. By its very nature, the assessment underlying the designation can only take into account the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in the country concerned. For this reason, it is important that, where an applicant shows that there are serious reasons to consider the country not to be safe in his/her particular circumstances, the designation of the country as safe can no longer be considered relevant for him/her. [emphasis added]

…

CHAPTER III
PROCEDURES AT FIRST INSTANCE
SECTION I
Article 23

…

4. Member States may also provide that an examination procedure in accordance with the basic principles and guarantees of Chapter II be prioritised or accelerated if:

…

(c) the application for asylum is considered to be unfounded:
(i) because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31…

…

Article 29

[Annulled, see European Parliament v. Council of the European Union, C-133/06, European Union: European Court of Justice, 6 May 2008, available at: http://www.unhcr.org/refworld/docid/4832ddb92.html [accessed 14 July 2012]]

Minimum common list of third countries regarded as safe countries of origin

1. The Council shall, acting by a qualified majority on a proposal from the Commission and after consultation of the European Parliament, adopt a minimum common list of third countries which shall be regarded by Member States as safe countries of origin in accordance with Annex II.

2. The Council may, acting by a qualified majority on a proposal from the Commission and after consultation of the European Parliament, amend the minimum common list by adding or removing third countries, in accordance with Annex II. The Commission shall examine any request made by the Council or by a Member State to submit a proposal to amend the minimum common list.

3. When making its proposal under paragraphs 1 or 2, the Commission shall make use of information from the Member States, its own information and, where necessary, information from UNHCR, the Council of Europe and other relevant international organisations.

4. Where the Council requests the Commission to submit a proposal for removing a third country from the minimum common list, the obligation of Member States pursuant to Article 31(2) shall be suspended with regard to this third country as of the day following the Council decision requesting such a submission.

5. Where a Member State requests the Commission to submit a proposal to the Council for removing a third country from the minimum common list, that Member State shall notify the Council in writing of the request made to the Commission. The obligation of this Member State pursuant to Article 31(2) shall be suspended with regard to the third country as of the day following the notification to the Council.

6. The European Parliament shall be informed of the suspensions under paragraphs 4 and 5.

7. The suspensions under paragraphs 4 and 5 shall end after three months, unless the Commission makes a proposal before the end of this period, to withdraw the third country from the minimum common list. The suspensions shall in any case end where the Council rejects a proposal by the Commission to withdraw the third country from the list.

8. Upon request by the Council, the Commission shall report to the European Parliament and the Council on whether the situation of a country on the minimum common list is still in conformity with Annex II. When presenting its report, the Commission may make such recommendations or proposals as it deems appropriate.

Article 30

National designation of third countries as safe countries of origin

1. Without prejudice to Article 29, Member States may retain or introduce legislation that allows, in accordance with Annex II, for the national designation of third countries other than those appearing on the minimum common list, as safe countries of origin for the purposes of examining applications for asylum. This may include designation of part of a country as safe where the conditions in Annex II are fulfilled in relation to that part.

2. By derogation from paragraph 1, Member States may retain legislation in force on 1 December 2005 that allows for the national designation of third countries, other than those appearing on the minimum common list, as safe countries of origin for the purposes of examining applications for asylum where they are satisfied that persons in the third countries concerned are generally neither subject to:

(a) persecution as defined in Article 9 of Directive 2004/83/EC; nor

(b) torture or inhuman or degrading treatment or punishment. [emphasis added]

3. Member States may also retain legislation in force on 1 December 2005 that allows for the national designation of part of a country as safe, or a country or part of a country as safe for a specified group of persons in that country, where the conditions in paragraph 2 are fulfilled in relation to that part or group.

4. In assessing whether a country is a safe country of origin in accordance with paragraphs 2 and 3, Member States shall have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned. [emphasis added]

5. The assessment of whether a country is a safe country of origin in accordance with this Article shall be based on a range of sources of information, including in particular information from other Member States, the UNHCR, the Council of Europe and other relevant international organisations.

6. Member States shall notify to the Commission the countries that are designated as safe countries of origin in accordance with this Article.

Article 31

The safe country of origin concept

1. A third country designated as a safe country of origin in accordance with either Article 29 or 30 may, after an individual examination of the application, be considered as a safe country of origin for a particular applicant for asylum only if:

(a) he/she has the nationality of that country; or

(b) he/she is a stateless person and was formerly habitually resident in that country;

and he/she has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances and in terms of his/her qualification as a refugee in accordance with Directive 2004/83/EC.

2. Member States shall, in accordance with paragraph 1, consider the application for asylum as unfounded where the third country is designated as safe pursuant to Article 29.

3. Member States shall lay down in national legislation further rules and modalities for the application of the safe country of origin concept.

…

ANNEX II

Designation of safe countries of origin for the purposes of Articles 29 and 30(1)

A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by:

(a) the relevant laws and regulations of the country and the manner in which they are applied;

(b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention;

(c) respect of the non-refoulement principle according to the Geneva Convention;

(d) provision for a system of effective remedies against violations of these rights and freedoms.

Excerpt: UNHCR comments on the European Commission’s Amended Proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection status (Recast) COM (2011) 319 final

UN High Commissioner for Refugees, UNHCR comments on the European Commission’s Amended Proposal for a Directive of the European Parliament and of the Council on common procedures for granting and withdrawing international protection status (Recast) COM (2011) 319 final, January 2012, available at: http://www.unhcr.org/refworld/docid/4f3281762.html [accessed 14 July 2012]

Under the current Directive, an effective illustration of the divergences in asylum practice allowed by the optional provisions of the APD (some of which are maintained in the Amended Proposal) is the application of the safe country of origin concept. The generic formulation of Article 30 (5) APD (and of Article 37 (3) of the Amended Proposal) permits wide divergences in the information sources used by Member States to determine safe countries of origin. This fact, combined with major differences in the designation criteria applied, will inevitably result in inconsistency in the designation of safe countries of origin. The absence of harmonisation is evident from UNHCR’s 2010 research on the application of the APD, which made a comparison among the three states which currently have in place a public national list of safe country of origin. At the time of UNHCR’s research, France had designated 15 countries as safe, Germany 29 and the UK 24. Given that the purpose of the Directive is to establish harmonized minimum standards16 between Member States’ asylum systems, one would expect substantial correlation between the lists. However, only one country (Ghana) appeared on the list of all three States – although in the UK, Ghana was considered a safe country of origin for male applicants only.[17] (page 4)

[FN 17: UN High Commissioner for Refugees, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice - Detailed Research on Key Asylum Procedures Directive Provisions, March 2010, page 336, at: http://www.unhcr.org/refworld/docid/4c63e52d2.html]

Vaquerano Lovato—personalized risk where everyone in the country faces some risk

Vaquerano Lovato v. Canada (Citizenship and Immigration), 2012 FC 143 (CanLII)

Judge: Justice Rennie; Date heard: January 26, 2012; Date decided: February 3, 2012; Counsel for Vaquerano Lovato: Alla Kikinova; Counsel for Minister: Nina Chandy; Place of Hearing: Toronto, Ontario.

The applicant couple were citizens of El Salvador whose refugee claim was refused. The principal (male) applicant claimed that his family (starting with his father and uncles) was targeted by the Mara Salvatrucha (MS) gang. An uncle was murdered. The applicant fulfilled the gang’s demands, but then filed a denunciation, after which he was beaten. He continued to receive threats until leaving El Salvador in April 2010.

The Refugee Protection Division (RPD) found the applicant credible. However, the s. 96 claim was denied for lack of nexus, and the s. 97 claim was denied on the basis that risk from the MS gang was a risk faced generally by people in El Salvador.

Justice Rennie found that the RPD’s s. 97/generalized risk analysis was faulty. He noted that the RPD explicitly stated that the applicant faced a particularized risk. He cited Vivero for the following:

…an individualized inquiry must be conducted in each case, and the fact that the risk to an applicant arises from criminal activity does not in itself foreclose the possibility of protection under section 97.  The decision under review is not consistent with the jurisprudence, as it completely negates an admitted situation of individualized risk simply because the actions giving rise to that risk are also criminal. (Vivero v Canada (Minister of Citizenship and Immigration), 2012 FC 138)

Justice Rennie also cited Justice de Montigny’s decision in Pineda v Canada (Minister of Citizenship and Immigration), 2007 FC 365, para. 15, which had similar facts:

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 terrorizing 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 remains 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.

Justice Rennie concluded:

[13] In this case, the Board was guided by an incorrect understanding of the meaning of section 97(1)(b)(ii).  Despite finding that the applicant was subject to a particularized risk of harm, it concluded that the risk also affected the population at large because all El Salvadorians are at risk of violence from the MS.  The Board noted: “There was no persuasive evidence before me that the claimant was targeted for any other reasons than the reasons I have already indicated”, i.e. those that motivate the MS to target any member of the population.  In this way, the Board incorrectly focused on the reasons for which the applicant was being targeted, rather than the evidence that the MS was specifically targeting the applicant to an extent beyond that experienced by the population at large.  As a result, the Board’s decision is unreasonable. 

[14] As noted in Vivero, section 97 must not be interpreted in a manner that strips it of any content or meaning.  If any risk created by “criminal activity” is always considered a general risk, it is hard to fathom a scenario in which the requirements of section 97 would ever be met.  Instead of focusing on whether the risk is created by criminal activity, the Board must direct its attention to the question before it: whether the claimant would face a personal risk to his or her life or a risk of cruel and unusual treatment or punishment, and whether that risk is one not faced generally by other individuals in or from the country.  Because the Board failed to properly undertake this inquiry in this case, the decision must be set aside.

Owochei—credibility assessment with translation issues

Owochei v. Canada (Citizenship and Immigration), 2012 FC 140 (CanLII)

Judge: Justice Russell; Date heard: December 8, 2011; Date decided: February 2, 2012; Counsel for Owochei: Raoul Boulakia; Counsel for Minister: Rafeena Rashid; Place of Hearing: Toronto, Ontario.

The applicant was a citizen of Nigeria whose application for protection on grounds of domestic violence had been refused by the Refugee Protection Division (RPD). The RPD found that the determinative issue was credibility.

Justice Russell found that the RPD had not made a clear general credibility finding, leaving it unclear whether it believed part or none of the applicant’s claims (para. 53). Although the RPD mentioned “examples” of supposed inconsistencies, Justice Russell focused his analysis on one problematic analysis.

The RPD stated that there was an inconsistency between the applicant’s PIF, in which she mentioned being abused by her husband after having fled to live at her parents’ house, and her viva voce testimony in why she stated that he did not physically abuse her (although there may have been an incident of verbal abuse) (para. 55). Justice Russell points out that the RPD accepted that she had fled the marital home, and that there was no evidence of any other reason for her to flee, suggesting that she had been being abused: “…if the RPD accepted that she was running away, it is reasonable to expect that it would pay close attention to the Applicant’s explanation that she did not change her story from physical abuse to verbal abuse.” (para. 55)

Furthermore, Justice Russell points out that the RPD ignores the explanation given by the applicant, namely that there was a translation issue with her PIF (paras. 56-57). The applicant spoke Igbo, and there was an Igbo interpreter at the hearing, but the interpreter when she did her PIF spoke Yoruba. While the applicant spoke both languages, she was much more confortable in Igbo (para. 57). Therefore, the applicant stated that she had not “changed” her story, as the RPD alleged (para. 58). Justice Russell found the failure to consider this explanation was unreasonable (para. 58). He then went on to cite a number of cases that caution the RPD against overzealousness in seeking out problems with a claimant’s case; Attakora v Canada (Minister of Employment and Immigration),[1989] FCJ No 444 (FCA), Owusu-Ansah v Canada (Minister of Employment and Immigration), [1989] FCJ No 442 (FCA), Rajaratnam v Canada (Minister of Employment and Immigration), [1991] FCJ No 1271 (FCA) (paras. 59-61).

Justice Russell found that the RPD’s reasons were too brief to give any other justification for the decision (para. 63). Therefore the decision was overturned.

Singh

Singh v. Canada (Citizenship and Immigration), 2012 FC 137 (CanLII)

Judge: Justice O’Reilly; Date heard: November 16, 2011; Date decided: February 2, 2012; Counsel for Singh: Charles E. D. Groos; Counsel for Minister: Aman Sanghera; Place of Hearing: Vancouver, British Columbia.

This was an application for judicial review of a refusal of the visa officer (VO) at the High Commission in Chandigarh, to issue a temporary work permit as a long-haul truck driver, on the alleged basis that he did not meet the language requirements.

The applicant had several years of work experience as a truck driver in Dubai, where his wife and children lived, which evidence was before the VO. There was also evidence that he owned a house and land in India. He submitted evidence of having taken English classes in secondary school and received good grades.

The VO stated the applicant was a single man, despite the evidence that he was married with children. The VO stated that he had only weak ties to India, and made no mention of owning the land or house. The VO stated that the applicant submitted “No satisfactory proof of language ability”, without mentioning the evidence of past successful English studies. The VO said that the applicant had no reason to leave Canada, but ignored the existence of his family in Dubai (The VO appeared to conflate a lack of reason to return to India with a lack of reason to leave Canada). Justice O’Reilly found the decision unreasonable and overturned it.

Flores Vargas—irrelevant considerations on credibility and wrong test on IFA

Flores Vargas (et al.) v. Canada (Citizenship and Immigration), 2012 FC 129 (CanLII)

Judge: Justice Scott; Date heard: November 28, 2011; Date decided: February 1, 2012; Counsel for Flores Vargas: Noël Saint-Pierre; Counsel for Minister: Anne-Renée Touchette; Place of Hearing: Montréal, Quebec.

This was a review of a decision of the Refugee Protection Division (RPD) in which it denied the application for protection of the applicant family, who were Mexican citizens. 

In summer/fall 2007, the adult female applicant had found evidence of election fraud in her town's municipal election. She reported the evidence (a bag of destroyed ballots) to the mayor, who threatened her. She went to see the opposition party, who said they could not do anything for her. Then the Federal Investigative Agency (FIA) came to her house, stating that they were sent by the mayor.

In December 2007 and January 2008, the family participated in demonstrations against electoral fraud. On January 10, 2008, the adult male applicant and his brother were kidnapped and assaulted by FIA officers, then released. The family attended another demonstration, following which the adult male applicant was once again assaulted by FIA officers. They fled to a relative's house, but were asked to leave when FIA was seen watching the house. They returned home. In March 2008, the FIA attempted to breakdown the applicants' door, but the adult female applicant was able to attract enough attention to drive them off. The family left Mexico in June 2008.

The issues as determined by the RPD were lack of credibility and IFA.

Justice Scott reiterated the case law stating that it is appropriate for the RPD to draw a negative inference on credibility where there are inconsistencies between testimony and other evidence, and quoted Kengkarasa: “‘[t]he Court should not interfere with the findings of fact and the conclusions drawn by the [IRB] unless the Court is satisfied that the [IRB] based its conclusion on irrelevant considerations or that it ignored evidence” (seeKengkarasa v Canada (Minister of Citizenship and Immigration), 2007 CF 714 (CanLII), 2007 CF 714, [2007] FCJ No 970, at para 7’” (para. 41) He then went on to find that the RPD had based its findings on irrelevant considerations and by dwelling on minor considerations (para. 43).

Regarding the issue of IFA, Justice Scott relied on the criteria stated in Rasaratnam v Canada (Minister of Employment and Immigration) (CA), [1992] 1 FC 706 at para. 12:

In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in [place of IFA] and that, in all the circumstances including circumstances particular to him, conditions in [place of IFA] were such that it would not be unreasonable for the appellant to seek refuge there.

The RPD found that the applicants could find an IFA in Mexico City or Guadalajara, apparently on the basis that the adult male applicant’s brother was living in Puebla. However, Justice Scott found that this was insufficient, as “The case law is clear: a person who seeks refuge elsewhere in the country must be able to live there safely and free from the threat he or she initially faced. Thus, the existence of an IFA appears unreasonable and unrealistic in this case.” (para. 49)