Huang—good faith in sur place claims

Huang v. Canada (Citizenship and Immigration), 2012 FC 205 (CanLII)

Judge: Justice Zinn; Date heard: December 1, 2011; Date decided: February 10, 2012;Counsel for Huang: Lindsey K. Weppler; Counsel for Minister: Judy Michaely; Place of Hearing: Toronto, Ontario.

The Applicants were a family consisting of a Chinese woman and her minor children. In February 2007, having become ill, the Applicant became involved in Christianity and began attending a house church. In August 2008, the Applicant went into hiding when she learned that the Public Security Bureau was coming for the congregation. Friends were arrested and the PSB came to her house. She engaged an agent to bring her and her children to Canada. She also claimed on the basis of fear of forcible sterilization, since she had two children.

Justice Zinn found that the RPD had erred in relying on a 2005 document that suggested sterilization was no longer used as punishment for violating family planning laws, when a more recent document (2010) discussed a sterilization campaign in the Applicant’s home region. As always, the RPD may rely on whatever evidence it chooses, but cannot disregard evidence which directly supports the claim without giving a valid reason for doing so (paras. 22-24).

The RPD also erred in finding that the Applicant did not have a sur place claim in Canada, as the RPD found she was practising Christianity in Canada to strengthen her refugee claim. Justice Zinn noted that there was no evidence that her current practise of Christianity was not genuine (paras. 25-32).

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

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

http://canlii.ca/en/ca/fct/doc/2012/2012fc8/2012fc8.html

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.

Ortiz Torres–misconstrued evidence leading to faulty credibility analysis

Ortiz Torres v. Canada (Citizenship and Immigration), 2011 FC 67

Judge: Justice Shore

Date heard: January 17, 2011

Date decided: January 26, 2011

Counsel for Ortiz Torres: Adela Crossley

Counsel for Minister: Kareena R. Wilding

Place of Hearing: Toronto, Ontario

The Applicants were a family from Mexico, who claimed on the basis that they were in fear of the Los Zetas gang, which had influence with every level of police in every region of Mexico (paras. 1-5).

Justice Shore pointed out a number of errors. The RPD wrongly relied on a translation of documents that said the principal Applicant was a “Police Service Technician” or a “non-commissioned officer” in finding that he was not credible when he testified that he was a police officer (paras. 6-8). The Board ignored relevant evidence and misconstrued the evidence before it (paras. 20-21). The Board refused to consider the fact that documents en route to the Applicant had been seized by Canadian customs, despite the Applicant proffering evidence (paras. 22-24). Because of its errors, the Board’s negative credibility assessment was flawed. It therefore also erred in its general analysis of risk and IFA (paras. 32-33).

JUDICIAL REVIEW ALLOWED

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).

JUDICIAL REVIEW ALLOWED

Sökmen–misapprehending medical evidence and failing to consider ability and willingness to pay for treatment

Sökmen v. Canada (Citizenship and Immigration), 2011 FC 47 (CanLII)

Judge: Justice Martineau

Date heard: December 6, 2010

Date decided: January 17, 2011

Counsel for Sökmen: Nicole Goulet

Counsel for Minister: Agnieszka Zagorska

Place of Hearing: Ottawa, Ontario

The Applicant was a Turkish national whose family’s application for permanent residence had been rejected by the visa officer in Ankara under sections 38(1)(c) and 42 of IRPA (para. 1). The VO had decided that the Applicant’s son, Bariş, had a health condition that would reasonably be expected to cause excessive demand (para. 2).

Bariş has a congenital heart disease, for which he has been treated in France (para. 6). The family plans to have him continued to be treated by his physician there, and they have the funds to support this course of treatment. His condition is currently stable and controlled by inexpensive and common medication (paras. 7-8).

Why then did the medical officer recommend, and the VO find, that excessive demand was an issue? The initial immigration medical in Turkey placed the son in category B, to wit: “Findings that require periodic specialist following care but which normally can be handled without resorting to repeated hospitalizations or the provision of social services” (paras. 11-12). That report was forwarded to the Paris Embassy, where a medical officer requested reports from the French specialist; these reports noted that the boy’s condition was controlled, and that some surgical or other medical intervention might be necessary in the future, but not the next five years (paras. 13-17).

In making his assessment, the medical officer Dr. Hindle exaggerated the boy’s condition and the expected future requirements (para. 18-19). This was compounded by the VO’s further errors, for instance in believing that Bariş would require excessive intervention within the next five to ten years (para. 19-20).

The regulations specifically refer to excessive demand as occurring within the first five years, unless there is evidence that they will occur later, in which case the maximum period is 10 years (para. 21).

Justice Martineau was critical of Dr. Hindle’s report as well, noting that it failed to deal with the Applicant’s proposed plan to arrange and fund their son’s care privately; he further concluded that “Dr. Hindle’s analysis is biased and incomplete. Dr. Hindle goes so far as to state that the prognosis is negative and that Bariş’ condition will deteriorate, which directly contradicts the medical evidence in the record.” (paras. 24-25) Dr. Hindle’s report is flawed in that it introduces future problems not raised by the expert physician most familiar with the boy’s case, and outright contradicts that physician’s reports while claiming to be based on them (paras. 25-29). It was open to the medical officer to disagree with the specialist, but only by doing so explicitly and with stated reasons (para. 29).

Even aside from the impugned medical report, the VO’s decision “is not supported by the evidence in the record and is speculative” (para. 33). There is no analysis of the Applicant’s proposal to alleviate an “excessive demand” his son’s condition might cause; the existence of such a proposal is not determinative but it must be considered (paras. 34-37).

JUDICIAL REVIEW ALLOWED

Borisovna Abbasova–applicability of Gender Guidelines and failure to consider psychological issues in credibility

Borisovna Abbasova v. Canada (Citizenship and Immigration), 2011 FC 43 (CanLII)

Judge: Justice Shore

Date heard: January 10, 2011

Date decided: January 14, 2011

Counsel for Borisovna Abbasova: Denise Feret

Counsel for Minister: Christine Bernard

Place of Hearing: Montréal, Quebec

This was judicial review of a pre-removal risk assessment decision turning on the Gender Guidelines.

Justice Shore opened the reasons with the following emphatic but convoluted statement: “For decision-makers at all levels, procedural fairness sounds a rarely heard alarm, and that alarm must be heard if injustice is not to be done.” (para. 1)

The Applicant was a Russian national who alleged persecution at the hands of her common-law partner, in the form of domestic abuse complicated by the fact that the abuser was a police officer. She further alleged having been mislead by a fraudulent non-lawyer (para. 10).

Her refugee claim was denied in February 2009 (para. 12).

The Applicant filed a PRRA in August 2009, and it was denied in April 2010 (para. 13). A stay of removal was granted in June 2010 (para. 14).

The PRRA officer assigned no weight to the Applicant’s new evidence (para. 15).

The issues were whether the officer erred in not considering the relevant evidence and/or erred in failing to apply the Refugee Protection Division’s Guideline 7 of women fearing gender-related persecution (para. 16).

Justice Shore approved of the PRRA officer’s giving no weight to documentation which, while it post-dated the hearing, “simply echoed the information previously submitted” (paras. 28-30).

However, the PRRA officer also gave no weight to a post-hearing psychological assessment of the Applicant (para. 30). Justice Shore noted that the RPD had found the Applicant not credible, but the psychological report clarified this issue; the PRRA officer ought to have taken into consideration “Possible evidence of the applicant’s inability to testify” (paras. 30-31).

Justice Shore noted that:

It is not for the Court to reassess the evidence submitted to the PRRA officer and that is not what it intends to do; nonetheless, the developments in Ms. Abbasova’s evidence, particularly regarding her psychological condition, could have been considered to be relevant if they had been analyzed. More specifically, in her particular case, as shown, a psychological problem apparently impaired Ms. Abbasova’s ability to testify. That evidence could have been central to the determination of credibility, considering that the RPD and, subsequently, the PRRA officer found Ms. Abbasova not to be credible based on the answers she gave in her testimony. … (para. 37, emphasis in original)

Justice Shore also took into account the new evidence filed by the Applicant in the stay application, notwithstanding the fact that this new medical evidence was not before the PRRA officer (paras. 39-43). Furthermore, the Judge found that even if only the preliminary psychological evidence had been considered by the PRRA officer, the officer night have concluded in the Applicant’s favor or at least that there was an issue of credibility/psychological issues which warranted a hearing (para. 44).

Regarding the Gender Guideline, Justice Shore affirmed their applicability as an “aid” in PRRA decisions (paras. 53-54).

JUDICIAL REVIEW ALLOWED

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

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

Judge: Justice Scott

Date heard: December 15, 2010

Date decided: January 12, 2011

Counsel for Muhari: Michel Le Brun

Counsel for Minister: Emilie Tremblay

Place of Hearing: Montréal, Quebec

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

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

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

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

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

JUDICIAL REVIEW GRANTED

Kirichenko–failure to deal with relevant evidence on conscientious objection

Kirichenko v. Canada (Citizenship and Immigration), 2011 FC 12 (CanLII)

Judge: Justice Russell

Date heard: October 28, 2010

Date decided: January 6, 2011

Counsel for Kirichenko: Geraldine MacDonald

Counsel for Minister: Gordon Lee

The Applicant is a citizen of Russia by birth and Israel by marriage. He claimed refugee protection in Canada due to fear of returning to either country (para. 2).

The Applicant testified that he had been kidnapped by Chechen rebel in 1995 and received injuries then. In 1997 he testified against one of the kidnappers and consequently received death threats. In 1997, he had planned to testify that Russian authorities had been complicit in the kidnapping, and he believed that the authorities wanted to stop him from giving testimony. He and his wife fled to Israel, where they had a child (para. 3).

The Applicant and his wife returned to Russia in 2000 and divorced in 2001. In 2003, the Applicant was again called to testify against his kidnappers and received death threats. He testified that he appeared in court in 2005 and on the following day was attacked by three men. Later in 2005 he was the victim of an attempted hit-and-run. In 2006, he was called to testify again and again received threats, so he decided to leave Russia (para. 4).

In 2006, the Applicant travelled to Israel, where he discovered that because he had been absent for over three years, his bank accounts had been closed and his documents expired. Because he was no longer the father of a young child, he would have to serve in the Israeli military. He left Israel, spent two months in Germany without claiming asylum, and then came to Canada (para. 5).

The RPD found that the Applicant lacked credibility (para. 7), and that he had not established that he was a conscientious objector to serving in the Israeli military (paras. 6-16), in part because it found he had served in the Russian military (para. 10).

At the Federal Court, the Minister conceded that the RPD had erred in finding that the Applicant had served in the Russian military, but maintained that the rest of the analysis on Israel was sufficient to allow the decision to stand (para. 45). Justice Russell, however, found two errors (para. 46).

First, the RPD cited and relied upon a Response to Information Request (an internal research document) that had never been disclosed to the Applicant; this was not “a situation where it can be said that the RPD used a country condition document from public sources that was available to the Applicant” (paras. 47-48). 

Second, the RPD did not mention or deal with the documentary evidence that conscientious objector status was not available to males in Israel (para. 49).

These two errors rendered the decision reviewable since “the whole notion of there being a way out for the Applicant through some available option that he failed to apply for was, on this evidence, entirely illusory” (para. 51).

JUDICIAL REVIEW ALLOWED

Kaleja–failure to properly consider country conditions and discrimination versus persecution

Kaleja v. Canada (Citizenship and Immigration), 2010 FC 252 (CanLII)

Judge: Justice O'Keefe

Date heard: October 14, 2009

Date decided: March 4, 2010

Counsel for Kaleja: Max Berger

Counsel for Minister: Kevin Doyle

The Applicants were a father and daughter from the Czech republic of Roma ethnicity who had claimed refugee protection in Canada, and their claims had been denied by the RPD (para. 1).

Both Applicants had a history of being discriminated against in the Czech Republic because of their ethnicity, and the father had been attacked by skinheads (paras. 3-8).

The crux of the Applicants’ case was that the Board had erred in its understanding of the fact that they were not represented by counsel, in its analysis of the cumulative discrimination amounting to persecution, and in its analysis of country conditions (paras. 9-11).

The RPD decision contains a single paragraph on the general conditions for Roma in the Czech Republic, and then finds that the past experiences of the Applicants did not meet that threshold. Justice O’Keefe found that “This does not respect the requirement of an ‘existence of justification, transparency and intelligibility within the decision-making process’…” (paras. 21-22). For the Member to have properly found that the Applicants experienced only discrimination and not persecution, he or she would have had to “sufficiently distinguish persecution from what the applicants experienced” (para. 23) and properly address the country conditions documents (para. 24), since the Member did come to the conclusion that they were members of a persecuted group (para. 25).

JUDICIAL REVIEW ALLOWED

Federal Court Key Quotes: Failure to Consider Evidence

Courtesy of Justice Russell in Champagne v. Canada (Citizenship and Immigration), 2009 FC 1204

[26] Not having regard for the totality of the evidence is an error of law. See Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652, [1980] F.C.J. No. 192. A claim in which the basic facts have been misconstrued should be set aside. Indeed, the Court has held that misconstruing evidence that forms the basis of the claim is a fundamental error. See Adamjee v. Canada (Minister of Citizenship Immigration), [1997] F.C.J. No. 1815. Moreover, a failure to mention facts that are a basis for the claim also constitutes a reviewable error. Fainshtein v. Canada(Minister of Citizenship and Immigration), [1995] F.C.J. No. 941. The Applicants cite and rely on many cases in which a decision has been set aside based on a misapprehension of the facts. See, for example, Mbiya v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1001 and Thambirasa v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 205.