IMMIGRATION LAW REPORTER Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence En Droit De L’Immigration VOLUME 10 (Cited 10 Imm

IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration VOLUME 10 (Cited 10 Imm. L.R. (4th))

EDITORS-IN-CHIEF/REDACTEURS´ EN CHEF Cecil L. Rotenberg, Q.C. Mario D. Bellissimo, LL.B. Barrister & Solicitor Ormston, Bellissimo, Rotenberg Don Mills, Ontario Toronto, Ontario Certified Specialist Certified Specialist

ASSOCIATE EDITOR/REDACTEUR´ ADJOINT Randolph Hahn, D.PHIL.(OXON), LL.B. Guberman, Garson Toronto, Ontario Certified Specialist

CARSWELL EDITORIAL STAFF/REDACTION´ DE CARSWELL Cheryl L. McPherson, B.A.(HONS.) Director, Primary Content Operations Directrice des activités liées au contenu principal Graham B. Peddie, LL.B. Product Development Manager Sharon Yale, LL.B., M.A. Jennifer Weinberger, B.A.(HONS.), Supervisor, Legal Writing J.D. Supervisor, Legal Writing Peter Bondy, B.A.(HONS.), LL.B. Heather Stone, B.A., LL.B. Lead Legal Writer Lead Legal Writer Rachel Bernstein, B.A.(HONS.), J.D. Peggy Gibbons, B.A.(HONS.), LL.B. Legal Writer Senior Legal Writer Jim Fitch, B.A., LL.B. Stephanie Hanna, B.A., M.A., LL.B. Senior Legal Writer Senior Legal Writer Mark Koskie, B.A.(HONS.), M.A., LL.B. Nicole Ross, B.A., LL.B. Legal Writer Legal Writer Amanda Stewart, B.A.(HONS.), LL.B. Martin-Fran¸cois Parent, LL.B., Senior Legal Writer LL.M., DEA (PARIS II) Bilingual Legal Writer Erin McIntosh, B.A.(HONS.) Content Editor IMMIGRATION LAW REPORTER, a national series of topical law reports, Recueil de jurisprudence en droit de l’immigration, une série nationale de is published twelve times per year. Subscription rate $379 per bound volume recueils de jurisprudence spécialisée, est publié 12 fois par anneé. including parts. Indexed: Carswell’s Index to Canadian Legal Literature. L’abonnement est de 379 $ par volume relié incluant les fascicules. Indexa- tion : Index a` la documentation juridique au Canada de Carswell.

Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la rédaction est situé a` Montréal — 430, rue St. Pierre, Mon- Montréal, Québec, H2Y 2M5. tréal, Québec, H2Y 2M5.

NOTICE AND DISCLAIMER: All rights reserved. No part of this publica- MISE EN GARDE ET AVIS D’EXONERATION´ DE RESPON- tion may be reproduced, stored in a retrieval system, or transmitted, in any SABILITE´ : Tous droits réservés. Il est interdit de reproduire, mémoriser sur form or by any means, electronic, mechanical, photocopying, recording or un système d’extraction de données ou de transmettre, sous quelque forme ou otherwise, without the prior written consent of the publisher (Carswell). par quelque moyen que ce soit, electronique´ ou mécanique, photocopie, enre- gistrement ou autre, tout ou partie de la présente publication, a` moins d’en avoir préalablement obtenu l’autorisation ecrite´ de l’éditeur, Carswell. A licence, however, is hereby given by the publisher: Cependant, l’éditeur concède, par le présent document, une licence :

(a) to a lawyer to make a copy of any part of this publication to give to a a) a ` un avocat, pour reproduire quelque partie de cette publication pour judge or other presiding officer or to other parties in making legal submis- remettre a` un juge ou un autre officier-pr´esident ou aux autres parties dans sions in judicial proceedings; une instance judiciaire;

b) a` un juge ou un autre officier-président, pour produire quelque partie de (b) to a judge or other presiding officer to produce any part of this publication cette publication dans une instance judiciaire; ou in judicial proceedings; or c) a` quiconque, pour reproduire quelque partie de cette publication dans le cadre de délibérations parlementaires. (c) to anyone to reproduce any part of this publication for the purposes of « Instance judiciaire » comprend une instance devant une cour, un tribunal ou parliamentary proceedings. une personne ayant l’autorité de décider sur toute chose affectant les droits ou les responsabilitiés d’une personne. “Judicial proceedings” include proceedings before any court, tribunal or per- Ni Carswell ni aucune des autres personnes ayant participé a` la réalisation et son having authority to decide any matter affecting a person’s legal rights or a` la distribution de la présente publication ne fournissent quelque garantie liabilities. que ce soit relativement a` l’exactitude ou au caractère actuel de celle-ci. Il est entendu que la présente publication est offerte sous la réserve expresse que ni Carswell and all persons involved in the preparation and sale of this publica- Carswell, ni le ou les auteurs de cette publication, ni aucune des autres per- tion disclaim any warranty as to accuracy or currency of the publication. This sonnes ayant participé a` son elaboration´ n’assument quelque responsabilité publication is provided on the understanding and basis that none of Carswell, que ce soit relativement a` l’exactitude ou au caractère actuel de son contenu the author/s or other persons involved in the creation of this publication shall ou au résultat de toute action prise sur la foi de l’information qu’elle be responsible for the accuracy or currency of the contents, or for the results renferme, ou ne peuvent etreˆ tenus responsables de toute erreur qui pourrait of any action taken on the basis of the information contained in this publica- s’y etreˆ glissée ou de toute omission. tion, or for any errors or omissions contained herein. La participation d’une personne a` la présente publication ne peut en aucun cas etreˆ considérée comme constituant la formulation, par celle-ci, d’un avis No one involved in this publication is attempting herein to render legal, ac- juridique ou comptable ou de tout autre avis professionnel. Si vous avez counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses The analysis contained herein should in no way be construed as being either comprises dans les présentes ne doivent etreˆ interprétées d’aucune fa¸con official or unofficial policy of any governmental body. comme etant´ des politiques officielles ou non officielles de quelque organ- isme gouvernemental que ce soit.

8 The paper used in this publication meets the minimum requirements of 8 Le papier utilis´e dans cette publication satisfait aux exigences minimales American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984.

ISSN 0835-3808 ISBN 978-0-7798-4654-2 Printed in Canada by Thomson Reuters

CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com E-mail www.carswell.com/email IMMIGRATION LAW REPORTER Fourth Series/Quatri`eme s´erie Recueil de jurisprudence en droit de l’immigration

[Indexed as: S. (R.) v. Canada (Minister of Citizenship & Immigration)] R.S., Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6056-11 2012 FC 860 Mary J.L. Gleason J. Heard: March 29, 2012 Judgment: July 6, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Political opinion — Military service –––– Refugee claimant was Israeli citizen who objected to compulsory military service in Israel because of his beliefs that Israel’s occupation of Palestinian territories is wrong and that Israeli state commits war crimes and human rights violations — Claimant asserted that he would be subject to imprisonment and discrimination in prison because of his beliefs and claimed refugee protection in Canada — Claimant testified that he was not pacifist and that he had not made application in Israel to be recognized as conscientious objector because Israeli state does not recognize selective conscientious objectors who refuse to serve in army due to principled opposition to policies of Israeli state — Immigration and Refugee Board found that claimant was not Convention refugee or person in need of protection — Claimant brought application for judicial review of board’s decision — Application granted — Board’s decision turned on its erroneous determination that claimant was not conscientious objector and instead objected to military service due to “aversion” — Board’s determination flew in face of uncontradicted evidence from claimant regarding reasons for his refusal to serve — Board’s decision was perverse and made without regard to material before it — At no time did claimant testify that he was not conscientious objector — Each of claimant’s reasons for not wishing to serve in Israeli army could amount to grounds for being selective conscientious objector in accordance with ss. 170 and 171 of United Nations High Commissioner for Refugees Handbook 2 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th) on Procedures and Criteria for Determining Refugee Status — Findings of board were so key to its overall decision and so wrong that its decision must be set aside under s. 18.1(4)(d) of Federal Courts Act. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Standard of review. Cases considered by Mary J.L. Gleason J.: Al-Maisri v. Canada (Minister of Employment & Immigration) (1995), 1995 CarswellNat 133, 183 N.R. 234, [1995] F.C.J. No. 642 (Fed. C.A.) — referred to Bakir v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 70, 2004 CarswellNat 75, 2004 CF 70, 2004 CarswellNat 1713, 33 Imm. L.R. (3d) 171, 244 F.T.R. 275, [2004] F.C.J. No. 57 (F.C.) — referred to Buttar v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 1281, 2006 CarswellNat 3463, 2006 CarswellNat 4938, 2006 CF 1281, [2006] F.C.J. No. 1607 (F.C.) — referred to C.U.P.W. v. Healy (2003), 2003 CAF 380, (sub nom. Canadian Union of Postal Workers v. Healy) 311 N.R. 96, 2003 CarswellNat 4270, 2003 FCA 380, 2003 CarswellNat 3208, [2003] F.C.J. No. 1517 (F.C.A.) — referred to Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — referred to Dirar v. Canada (Minister of Public Safety & Emergency Preparedness) (2011), 97 Imm. L.R. (3d) 283, 2011 CF 246, 2011 CarswellNat 1327, 385 F.T.R. 133, 2011 FC 246, 2011 CarswellNat 655, [2011] F.C.J. No. 364 (F.C.) — referred to Ghirmatsion v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 2748, 2011 FC 519, 2011 CarswellNat 1468, 2011 CF 519, 27 Admin. L.R. (5th) 171, 389 F.T.R. 165 (Eng.), [2011] A.C.F. No. 650, [2011] F.C.J. No. 650 (F.C.) — referred to Gil v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 5366, 2005 CF 1418, 2005 CarswellNat 3339, 2005 FC 1418 (F.C.) — referred to Girgis v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 90, 2007 CarswellNat 193, 2007 CF 90, 2007 CarswellNat 1417 (F.C.) — referred to Hinzman, Re (2006), 2006 CF 420, 2006 CarswellNat 2739, (sub nom. Hinzman v. Canada (Minister of Citizenship and Immigration)) [2007] 1 F.C.R. 561, (sub nom. Hinzman v. Canada (Minister of Citizenship and Immigration)) 290 F.T.R. 8 (Eng.), 2006 FC 420, 2006 CarswellNat 1779, 55 Imm. L.R. (3d) 54, 266 D.L.R. (4th) 582, 61 Admin. L.R. (4th) 233, [2006] F.C.J. No. 521 (F.C.) — referred to S. (R.) v. Canada (MCI) 3

Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — referred to Isakova v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 149, 2008 CarswellNat 5356, 322 F.T.R. 276 (Eng.), 2008 CarswellNat 261, 2008 FC 149, [2008] F.C.J. No. 188 (F.C.) — referred to Ivachtchenko v. Canada (Minister of Citizenship & Immigration) (2002), 2002 FCT 1291, 2002 CarswellNat 3620, 225 F.T.R. 168, 2002 CFPI 1291, 2002 CarswellNat 4230, 25 Imm. L.R. (3d) 129 (Fed. T.D.) — referred to Key v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 838, 2008 CarswellNat 3031, 73 Imm. L.R. (3d) 278, 331 F.T.R. 137, [2009] 2 F.C.R. 625, 2008 FC 838, 2008 CarswellNat 2152, 85 Admin. L.R. (4th) 157, [2008] F.C.J. No. 1003 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Lebedev v. Canada (Minister of Citizenship & Immigration) (2007), 62 Imm. L.R. (3d) 161, 315 F.T.R. 286 (Eng.), 2007 FC 728, 2007 CarswellNat 1919, [2008] 2 F.C.R. 585, 2007 CF 728, 2007 CarswellNat 4310, [2007] F.C.J. No. 975 (F.C.) — referred to Level v. Canada (Minister of Citizenship & Immigration) (2010), (sub nom. Level v. Canada (Citizenship & Immigration)) [2011] 3 F.C.R. 60, 2010 Car- swellNat 2124, 2010 CF 251, 2010 CarswellNat 503, 2010 FC 251 (F.C.) — referred to N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered Quiroa v. Canada (Minister of Citizenship & Immigration) (2005), 2005 CF 271, 2005 CarswellNat 2312, 30 Admin. L.R. (4th) 316, 2005 CarswellNat 479, 2005 FC 271, [2005] F.C.J. No. 338 (F.C.) — referred to 4 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Rahal v. Canada (Minister of Citizenship & Immigration) (2012), 2012 Car- swellNat 871, 2012 FC 319, 2012 CF 319, 2012 CarswellNat 1289, [2012] F.C.J. No. 369 (F.C.) — referred to Rohm & Haas Canada Ltd. v. Canada (Anti-Dumping Tribunal) (1978), 91 D.L.R. (3d) 212, 1978 CarswellNat 150, 22 N.R. 175, [1978] F.C.J. No. 522 (Fed. C.A.) — considered Tewelde v. Canada (Minister of Citizenship & Immigration) (2007), 2007 FC 1103, 2007 CarswellNat 3639, 65 Imm. L.R. (3d) 267, 2007 CarswellNat 6250, 2007 CF 1103, [2007] F.C.J. No. 1426 (F.C.) — referred to Vassey v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 899, 2011 CarswellNat 2773, 1 Imm. L.R. (4th) 72, 2011 CF 899, 2011 Car- swellNat 3774, [2011] F.C.J. No. 1120, [2011] A.C.F. No. 1120 (F.C.) — referred to Zazai v. Canada (Minister of Citizenship & Immigration) (2004), 318 N.R. 365, (sub nom. Canada (Minister of Citizenship & Immigration) v. Zazai) 247 F.T.R. 320 (note), 2004 CAF 89, 2004 FCA 89, 2004 CarswellNat 544, 36 Imm. L.R. (3d) 167, 2004 CarswellNat 4792, [2004] F.C.J. No. 368 (F.C.A.) — referred to Zolfagharkhani v. Canada (Minister of Employment & Immigration) (1993), 20 Imm. L.R. (2d) 1, 155 N.R. 311, [1993] 3 F.C. 540, 1993 CarswellNat 89, 1993 CarswellNat 1329, [1993] F.C.J. No. 584 (Fed. C.A.) — referred to Statutes considered: Federal Courts Act, R.S.C. 1985, c. F-7 s. 18.1(4)(d) [en. 1990, c. 8, s. 5] — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 74 — considered s. 96 — considered s. 97 — considered s. 170 — considered s. 171 — considered

APPLICATION for judicial review of decision that claimant was not Conven- tion refugee or person in need of protection.

Geraldine Sadoway, for Applicant Jocelyn Espejo-Clarke, for Respondent

Mary J.L. Gleason J.:

1 This is an application for judicial review in respect of a decision of the Refugee Protection Division of the Immigration and Refugee Board [RPD or the Board], dated August 11, 2008, in which the Board found S. (R.) v. Canada (MCI) Mary J.L. Gleason J. 5

that the applicant was neither a Convention refugee nor a person in need of protection. The applicant is an Israeli citizen, who objects to fulfilling his required compulsory military service in Israel because he believes that Israel’s occupation of the Palestinian territories is wrong, that the Israeli state commits war crimes, that it violates the human rights of its non-Jewish citizens and that he faces discrimination in Israel due to his ethnicity as a Mizrahi (or Sephardic) Jew. Before the RPD, the applicant asserted that he would be subject to imprisonment and would face discriminatory treatment in prison by reason of the beliefs he holds and that, consequently, he was entitled to protection in Canada under both section 96 and section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act]. 2 In the decision under review, the RPD rejected the applicant’s claims for three reasons. First, it held that the applicant’s objection to compulsory military service was not based on a genuine reason of conscience but, rather, was due to an aversion to serving in the military and, accordingly, does not qualify him for protection under section 96 of the IRPA. Second, it determined that the imprisonment the applicant would likely face if he returned to Israel and persisted in his refusal to complete his compulsory military service, likewise, did not violate section 96 of the Act because there was no evidence before the Board that the length of prison sentences or treatment received in prison was harsher based on an individual’s ethnic background. The Board, however, failed to deal with a key aspect of the applicant’s section 96 claim, namely, the assertion that, as a selective conscientious objector who disagrees with the stances taken by Israel, the applicant would be subject to harsher treatment in prison than deserters or individuals who refused to serve for other reasons. Finally, the RPD held that conditions in military prisons and detention facilities in Israel met international standards and, therefore, returning the applicant to Israel to face imprisonment would not expose him to a risk to his life, cruel and unusual treatment or punishment, or the danger of torture, and, accordingly, determined that the applicant did not qualify for protection under section 97 of the IRPA. 3 In this application for judicial review, the applicant does not contest the Board’s conclusion under section 97 of the IRPA but does argue that its determinations under section 96 of the Act should be set aside for three reasons. The applicant argues in this regard that: 1. The Board breached its duty of procedural fairness by failing to provide adequate reasons; 6 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

2. The Board erred in law in interpreting the meaning of persecution under section 96 of the IRPA: i. by failing to assess whether the applicant’s claim falls under the exception for deserters set out in section 171 of the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status [the UNHCR Handbook]; ii. by failing to recognize the punishment for objection to military service on grounds of conscience constitutes persecution on the basis of political opinion; and 3. The Board ignored material evidence on the record and thus failed to have regard to the totality of the evidence. 4 As is more fully discussed below, I have determined that the arguments regarding the alleged violation of the duty of procedural fairness due to the inadequacy of the Board’s reasons are without merit. That said, I have also determined that this application for judicial review must be granted for reasons related to the second and third of the above grounds because the Board made essential factual conclusions that contradict the evidence that was before it. Accordingly, these factual determinations constitute a violation of paragraph 18.1(4)(d) of the Federal Courts Act, RSC, 1985, c F-7 [FCA]. Finally, I have determined that this case does not raise issues which warrant certification under section 74 of the Act, despite the several issues proposed by the applicant, as this decision rests on the conclusion that the key factual findings made by the RPD were made in a perverse manner and without regard to the evidence before the Board.

No violation of the duty of procedural fairness through the issuance of inadequate reasons 5 The applicant’s argument that the RPD violated the principles of natural justice in failing to provide adequate reasons may be disposed of summarily as that the Supreme Court of Canada has recently determined that the inadequacy of reasons given by a tribunal does not give rise to breach of natural justice provided some reasons are given. In this regard, in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), Justice Abella, writing for a unanimous Court, stated at paragraphs 20 and 22: Procedural fairness ... can be easily disposed of here. Baker stands for the proposition that “in certain circumstances”, the duty of proce- S. (R.) v. Canada (MCI) Mary J.L. Gleason J. 7

dural fairness will require “some form of reasons” for a decision (para 43). It did not say that reasons were always required, and it did not say that the quality of those reasons is a question of procedural fairness. [...] It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review. [...] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. [Emphasis added] 6 In light of this, the applicant’s first argument fails.

Erroneous factual findings result in the decision being set aside 7 Issues related to the second and third grounds raised by the applicant, on the other hand, do warrant intervention. The applicant provided consistent testimony before the RPD with respect to the reasons for his un- willingness to serve in the Israeli army, which stemmed from his profound disagreement with the policies of Israel regarding the occupation of Palestinian territories, his belief that the Israeli state commits war crimes and his view that Israel discriminates against Mizrahi Jews and other non-Jewish citizens, including, notably, Arabs. He stated that he was not a pacifist, and would fight for causes that he believed in, but could not as a matter of conscience fight in the Israeli army in light of Israel’s current policies. The following excerpts from the transcript of the hearing before the RPD (Certified Tribunal Record at p 804) are reflec- tive of the applicant’s testimony throughout: Q: If you were in Israel and you were conscripted to serve, what would you do? A: I would refuse to serve. Q: Why? A: Because Israel is not a legitimate country in my eyes. [...] I would refuse to serve in the Israeli army because I do not 8 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

want to serve the Israeli government or the army in any way. I do not want to be associated with this prison state. I disagree entirely with Israel’s past policies and present policies towards original inhabitants of the land, the Palestinians, and towards their own citizens — Israeli Arabs and Mizrahi Jews, both of which groups are still today being discriminated against. [...] [...] I’m not going to fight for a country that came in, mas- sacred people that were living there, and is still massacring them today. And I’m supposed to wear a uniform, representing that. And at the same time it’s mistreating its own citizens, its own citizens because they’re of the wrong colour or of the wrong background or they’re speaking the wrong language. [...] it would be to me the same as serving in the Gestapo or something like that. Q: If they asked you why you were refusing to serve — A: I would tell them straight. [...] I would say that I disagree with what you’re doing. I would say, “When you pull out of the Palestinian territories, when you apologize to the Palestinian people, when you apologize to Israeli Arabs, when you apologize to Mizrahi Jews, when you apologize for the system of discrimination, oppression and racism that you have created in Israel, and for the oppression that you’re causing around Israel — when you stop these things and stop violating human rights, that’s when I’ll serve that country.” 8 The applicant made several others statements of similar ilk during his testimony before the Board. Notably, contrary to what the RPD found in its reasons, he never indicated that he was not a conscientious objector. Rather, he stated that he had not made an application to be recognised as a conscientious objector in Israel because the Israeli state does not recognise selective conscientious objectors who refuse to serve in the army by reason of a principled opposition to the policy choices made by the Israeli state. He also testified that he was not a pacifist. 9 In addition to repeatedly outlining the principled basis for his unwill- ingness to complete the compulsory military service that the state of Israel requires from Jewish citizens, the applicant also filed substantial documentary evidence with the RPD which indicated that he would not be granted an exemption from active military service in Israel and would likely be imprisoned if he were returned to Israel and refused to serve in its army. The evidence established that under Israeli law selective consci- S. (R.) v. Canada (MCI) Mary J.L. Gleason J. 9

entious objectors who disagree with Israel’s policies will not be granted an exemption from military service (as opposed to pacifists or those who object on religious grounds, who may be entitled to such an exemption). 10 The applicant also filed evidence which supported his argument that selective conscientious objectors in Israel are subject to repeated and harsher prison sentences than deserters and which indicated that, in some instances, jailed selective conscientious objectors have been denied sun- light, clothing, hot water, paper and reading materials, access to counsel and visits from family. Certain media reports the applicant filed indicated that this is particularly the case if the objector refuses to wear a military uniform while in prison, in which case reports indicated that the individual will often be placed in isolation and subject to further forms of mistreatment. 11 The applicant further filed documentary evidence from non-governmental organizations, like Amnesty International and Human Rights Watch, which accused the Israeli military of engaging in human rights abuses and violations of international humanitarian law. In addition, he filed articles from several newspapers, which were critical of certain actions of the Israeli military, and fact finding mission reports of the United Nations General Assembly Human Rights Council on violations of international law by Israel. The applicant asserted that this evidence demonstrated international condemnation of certain of the activities engaged in by the Israeli army. 12 Based on this evidence, the applicant argued that he met the definition of a Convention refugee within the meaning of section 96 of the IRPA, noting that there is nascent support in Canadian case law, and rec- ognition in international law, of the principle that selective conscientious objectors, who oppose particular wars for reasons of principle, are entitled to refugee protection if they would face imprisonment for refusing to engage in military service to fight in situations where the war they oppose is condemned by the international community as violating the basic rules of human conduct or violates international law. The applicant cited in this regard several Canadian cases, including Zolfagharkhani v. Canada (Minister of Employment & Immigration), [1993] 3 F.C. 540, 155 N.R. 311 (Fed. C.A.); Al-Maisri v. Canada (Minister of Employment & Immigration), [1995] F.C.J. No. 642, 183 N.R. 234 (Fed. C.A.); Hinzman, Re, 2006 FC 420, [2006] F.C.J. No. 521 (F.C.); affd 2007 FCA 171, [2007] F.C.J. No. 584 (F.C.A.); Bakir v. Canada (Minister of Citizenship & Immigration), 2004 FC 70, [2004] F.C.J. No. 57 (F.C.); 10 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Tewelde v. Canada (Minister of Citizenship & Immigration), 2007 FC 1103, [2007] F.C.J. No. 1426 (F.C.); Lebedev v. Canada (Minister of Citizenship & Immigration), 2007 FC 728, [2008] 2 F.C.R. 585 (F.C.); Key v. Canada (Minister of Citizenship & Immigration), 2008 FC 838, [2009] 2 F.C.R. 625 (F.C.); and Vassey v. Canada (Minister of Citizenship & Immigration), 2011 FC 899, [2011] F.C.J. No. 1120 (F.C.). The applicant further argued that sections 170 and 171 of the UNHCR Handbook should be viewed as authoritative, and that these sections provide that those who are selective conscientious objectors, and who might face imprisonment for refusing to serve, are entitled to refugee protection. They provide: 170. There are [...] cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience. 171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft- evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft division could, in light of all of the requirements of the definition, in itself be regarded as persecution. 13 As noted, the first reason that the RPD rejected the applicant’s claim centered on its conclusion that the applicant’s objection to compulsory military service was not based on a genuine reason of conscience but, rather, was due to an aversion to serving in the military. The reasons of the Board on this issue are contained in paragraphs 12 to 14 of its decision, which provide as follows: ... [T]he panel finds that the claimant’s reasons for refusing to serve in the Israel military are not sufficient to exempt him from conscrip- tion service, which intended purpose is a law of general application [sic]. At the hearing, the claimant provided, through his oral testimony, his objections to not serving his compulsory military service in Israel: he does not want to take someone else’s life; he does not want to have blood on his hands; he believes that Israel is not a legitimate country; he believes that Israel is a prison state and that he would not serve in a Military that kills its own people. S. (R.) v. Canada (MCI) Mary J.L. Gleason J. 11

As a result of his own testimony, and apart from being opposed to physical violence, the use of arms and killing people, the claimant provided no testimony that would indicate that his objections to serving in the Israeli military are sufficiently significant and are those of the person who is a genuine conscientious objector. Indeed, the claimant’s oral evidence, when questioned on this matter in the hearing, was that he was not a conscientious objector. The panel finds, based on the claimant’s own evidence, that the claimant’s objection to completing his compulsory military service obligations in Israel is an aversion to serving in the Israeli military and not for genuine reasons of conscience. As a result, the panel finds that the claimant’s aversion to beginning his compulsory military service in Israel is not by reason of any one of the five grounds enumerated in the Convention refugee definition. 14 The RPD’s decision turns on these paragraphs, which are both internally inconsistent and contradict the evidence that was before the Board. Contrary to what the Board states, the applicant at no time testified that he was not conscientious objector. Rather, as counsel for the applicant notes, he “routinely couched his objection to service as being an objection based on grounds of conscience” (Applicant’s Further Memorandum of Argument at para 19). He also clearly indicated he was not a pacifist and testified that in some circumstances he would be able to kill another person, if it were required to defend his family or his home. Thus, the RPD’s findings that the applicant was “opposed to physical violence, the use of arms and killing people” and “was not conscientious objector” are directly contrary to the evidence before the Board. 15 The above passage, moreover, is internally contradictory as one who is opposed to physical violence, the use of arms and killing people — i.e. a pacifist — would meet the definition of a conscientious objector. In addition, the RPD did cite some of the applicant’s reasons for not wishing to serve in the Israeli army, notably, that “he believes that Israel is not a legitimate country”, that “Israel is a prison state” and that “he would not serve in a Military that kills its own people”. Each of these convictions might amount to grounds for being a selective conscientious objector, in accordance with sections 170 and 171 of the UNHCR Handbook. 16 This Court may set aside a factual determination of the RPD only if that determination is unreasonable (see Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paras 46-47, [2009] 1 S.C.R. 339 (S.C.C.); Rahal v. Canada (Minister of Citizenship & Immigration), 2012 FC 319 (F.C.) at para 40; Cepeda-Gutierrez v. 12 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425, 157 F.T.R. 35 (Fed. T.D.), at para 14; Quiroa v. Canada (Minister of Citizenship & Immigration), 2005 FC 271 (F.C.) at para 6, [2005] F.C.J. No. 338 (F.C.); Gil v. Canada (Minister of Citizenship & Immigra- tion), 2005 FC 1418 (F.C.) at para 20). Paragraph 18.1(4)(d) of the FCA provides “legislative precision to the reasonableness standard” by which factual findings are to be measured (Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at para 46, [2009] 1 S.C.R. 339 (S.C.C.)). Paragraph 18.1(4)(d) of the FCA states that this Court may set aside a tribunal’s decision if it is satisfied that the tribunal “based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it”. 17 The wording of section 18.1(4)(d) requires that the impugned finding must meet three criteria for relief to be granted: first, it must be truly or palpably erroneous; second, it must be made capriciously, perversely or without regard to the evidence; and, finally, the tribunal’s decision must be based on the erroneous finding (Rohm & Haas Canada Ltd. v. Canada (Anti-Dumping Tribunal), [1978] F.C.J. No. 522, 22 N.R. 175 (Fed. C.A.), at para 5 [Rohm & Haas]; Buttar v. Canada (Minister of Citizenship & Immigration), 2006 FC 1281 (F.C.) at para 12, [2006] F.C.J. No. 1607 (F.C.)). This is a difficult thing to demonstrate, and the standard of review accordingly necessitates significant deference being accorded to a tribunal’s factual findings. 18 In the seminal case interpreting section 18(1)(d) of the FCA, Rohm & Haas, Chief Justice Jacket defined “perversity” as “willfully going contrary to the evidence” (at para 6). In terms of a finding being made without regard to the evidence, the case law recognizes that a finding for which there is no evidence before the tribunal will be set aside under paragraph 18.1(4)(d) of the FCA (see e.g. C.U.P.W. v. Healy, 2003 FCA 380 (F.C.A.) at para 25, [2003] F.C.J. No. 1517 (F.C.A.); Isakova v. Canada (Minister of Citizenship & Immigration), 2008 FC 149 (F.C.) at para 44, [2008] F.C.J. No. 188 (F.C.); Girgis v. Canada (Minister of Citizenship & Immigration), 2007 FC 90 (F.C.) at para 24). 19 Despite the high degree of deference to be afforded to factual findings of the RPD, the impugned findings of the Board in this case are so key to its overall decision and so wrong that its decision must be set aside. In this regard, as noted, the Board’s decision turned on its erroneous determination that the applicant was not a conscientious objector and, instead, S. (R.) v. Canada (MCI) Mary J.L. Gleason J. 13

objected to military service due to “aversion”. This determination flies in the face of the uncontradicted evidence from the applicant regarding his reasons for the refusal to serve. It may therefore be said to be “perverse” and “made without regard to the material” before the RPD. 20 In light of this erroneous factual determination, the Board did not analyze the applicant’s argument that his grounds for objection fall within section 96 of the IRPA. The RPD, accordingly, did not determine whether the applicant would likely face imprisonment if returned to Israel, whether the actions of the Israeli state and military are contrary to international law or are condemned by the international community nor whether being imprisoned for refusal to fight in the Israeli army amounts to “persecution” within the meaning of section 96 of the IRPA. All these inquiries were key to the applicant’s refugee claim. Accordingly, the Board’s erroneous factual conclusions were central to its decision. Be- cause these conclusions were also perverse and made without regard to the evidence before the Board, they fall within the scope of paragraph 18.1(4)(d) of the FCA and lead to the RPD’s decision being set aside.

Failure to consider a key argument provides an additional reason to set the decision aside 21 There is an additional reason why the RPD’s decision must be set aside. As noted, the applicant filed evidence indicating that the treatment afforded to selective conscientious objectors in Israeli military prisons was harsher than that afforded to those who were jailed because they had refused to serve for other reasons and that selective conscientious objectors received longer sentences. The applicant argued that this differential treatment also amounted to persecution within the meaning of section 96 of the IRPA. The RPD, however, failed to address this argument. Rather, it confused the applicants’ arguments and instead reviewed whether the documentary evidence established that those of different ethnicity were subject to longer sentences. It wrote in this regard at paragraph 18 of the decision: The claimant must establish that the harm feared is sufficiently serious to constitute persecution. The documentary evidence before the panel indicates that, upon his return to Israel, the claimant could be imprisoned. However, the panel finds that the sentences imposed on those Israeli nationals who are unwilling to serve their compulsory military obligations in Israel, are not excessively or unduly harsh. These prison sentences are legal sanctions provided for in a law of general application in Israel and, as such, are matters of judicial pros- 14 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

ecution and not persecution in violation of international standards. The panel does not consider the jail sentence to be disproportionate to the offence committed, nor does the panel find it persecutory in nature. The punishment is the same for everyone; there is no evidence before the panel that it is harsher for immigrants from the former Soviet Union, be they Muslim, Christian or Jew. Therefore, the panel finds that the punishment is of a general application and is inherent or incidental to sanctions authorized by the laws of Israel, a democratic country with free speech, free elections and an independent judiciary. In the panel’s view, the punishment does not disregard accepted international standards. 22 This failure to consider the applicant’s argument gives rise to an additional and independent basis for setting aside the decision (see Ghirmatsion v. Canada (Minister of Citizenship & Immigration), 2011 FC 519 (F.C.) at paras 106-108; Dirar v. Canada (Minister of Public Safety & Emergency Preparedness), 2011 FC 246 (F.C.) at para 19, (2011), 385 F.T.R. 133 (F.C.); Level v. Canada (Minister of Citizenship & Immigration), 2010 FC 251 (F.C.) at para 64, (2010), [2011] 3 F.C.R. 60 (F.C.); Ivachtchenko v. Canada (Minister of Citizenship & Immigra- tion), 2002 FCT 1291, 225 F.T.R. 168 (Fed. T.D.) at para 23).

Certified Question 23 Counsel for the applicant proposed the following questions for certification under section 74 of the IRPA: 1. Considering the evolving nature of the international law on conscientious objection to military service, and considering the recognized importance of guidance on this issue of the UNHCR Hand- book on Procedures and Criteria for Determining Refugee Status, set out in paragraphs 167 to 174 of the Handbook, should the Refugee Protection Division be required to clearly analyse a refugee claim based on conscientious objection to military service, in reference to the UNHCR Handbook, and in particular to paragraphs 169 to 174 of the Handbook? 2. If the refugee claimant is found to have a sincerely held religious, political or moral belief or opinion opposed to participating in the required military service, should any punishment for refusal to serve be recognized as persecution, in accordance with the evolving international law on conscientious objection to military service? S. (R.) v. Canada (MCI) Mary J.L. Gleason J. 15

3. Is the refusal to comply with compulsory military service because of political opinion, a political opinion which could constitute a nexus to Convention grounds upon which a person can claim refugee protection? 24 The Federal Court of Appeal has indicated that a question should only be certified where it is a serious question of general importance and would be dispositive of an appeal (Zazai v. Canada (Minister of Citizenship & Immigration), 2004 FCA 89 (F.C.A.) at para 11, [2004] F.C.J. No. 368 (F.C.A.)). No such question arises here as this decision turns on the factual errors made by the RPD, which render its decision unreasonable. Thus, the questions posited by counsel for the applicant, which are doubtless interesting, simply do not arise in this case. 25 Accordingly, for these reasons, this application will be granted, without costs, and no question is certified under section 74 of the Act.

Judgment THIS COURT’S JUDGMENT is that: 1. This application for judicial review is allowed; 2. The applicant’s claim is remitted to the RPD for re-determination by a differently constituted panel of the Board; 3. No question of general importance is certified; and 4. There is no order as to costs. Application granted. 16 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

[Indexed as: Sekhon v. Canada (Minister of Citizenship & Immigration)] Sarabjit Singh Sekhon, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4657-11 2012 FC 700 James W. O’Reilly J. Heard: February 14, 2012 Judgment: June 6, 2012 Immigration and citizenship –––– Admission — Appeals and judicial review — Judicial review — Duty of fairness –––– Applicant was citizen of In- dia who sought permanent residence in Canada as skilled worker — Immigra- tion officer in Buffalo concluded that applicant did not meet required threshold of 67 points — Applicant brought application for judicial review — Application granted — Matter was referred back to another officer for reassessment — Of- ficer did not give applicant chance to meet real concerns about application — Therefore, he was not treated fairly — Applicant’s submissions were directed to officer’s concerns about whether school was carrying on business at stated address — Parents’ letters and photographs were aimed at meeting those concerns, and further documentation was provided regarding school’s finances — But applicant could not have met officer’s other unstated concerns because he was not made aware of them. Immigration and citizenship –––– Admission — Immigrants — Skilled workers — Categories (point system) — Education — Recognized institu- tion –––– Applicant was citizen of India who sought permanent residence in Canada as skilled worker — Immigration officer in Buffalo concluded that applicant did not meet required threshold of 67 points — Applicant brought application for judicial review — Application granted — Matter was referred back to another officer for reassessment — Officer did not give applicant chance to meet real concerns about application — Therefore, he was not treated fairly — Appli- cant’s submissions were directed to officer’s concerns about whether school was carrying on business at stated address — Parents’ letters and photographs were aimed at meeting those concerns, and further documentation was provided re- Sekhon v. Canada (MCI) James W. O’Reilly J. 17

garding school’s finances — But applicant could not have met officer’s other unstated concerns because he was not made aware of them.

APPLICATION by applicant for judicial review of decision to dismiss application for permanent residence in Canada as skilled worker.

Krassina Kostadinov, for Applicant Kristina Dragaitis, for Respondent

James W. O’Reilly J.: I. Overview 1 In 2009, Mr. Sarabjit Singh Sekhon, a citizen of India, sought permanent residence in Canada as a skilled worker. He had been working at a school in Brampton teaching Punjabi on a temporary work permit, and had an offer for continued employment. An immigration officer in Buf- falo concluded that Mr. Sekhon did not meet the required threshold of 67 points. 2 When the officer received Mr. Sekhon’s application, she asked for additional information, including tax documents, financial statements for his employer, and pay slips. Mr. Sekhon supplied the requested information and an updated job offer. However, the officer was not satisfied that the offer was genuine or that Mr. Sekhon’s employer was conducting business at the address provided. Mr. Sekhon then provided additional documents — letters from the employer, the employer’s accountant and parents at the school, as well as some photographs. Still, the officer’s concerns remained and she rejected his application. 3 Mr. Sekhon argues that the officer treated him unfairly by relying on concerns she did not disclose to him. In addition, Mr. Sekhon submits that the officer’s decision was unreasonable because she discounted the documents on which his application relied without justification. 4 I agree with Mr. Sekhon that he was treated unfairly in the circumstances and will grant his application for judicial review on that basis. I need not, therefore, consider whether the officer’s decision was unreasonable. 5 Accordingly, the sole issue is whether Mr. Sekhon was treated unfairly. 18 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

II. The Officer’s Decision 6 The officer granted Mr. Sekhon points for his work experience, education and English language skills. However, the officer gave him no points for his arranged employment because she was not satisfied that his job offer was genuine. The employer’s documents did not show Mr. Sekhon was on the payroll until October 2010, after he was asked to provide proof of employment. Further, his tax statement showed an annual income of $33,523, which amounted to an average of 24 hours a week — not a full-time work load. 7 After the officer raised these concerns, Mr. Sekhon provided documentary evidence showing that his income was reduced because of time off for illness and renovations at the school, and that payroll deductions had not been made for him because of an accounting error. He also provided corroborative letters from parents and photographs of the school. 8 However, the officer was not satisfied with this evidence. She concluded that the accountant’s explanations were implausible, and that the evidence did not prove that parents had paid tuition or that students had received instruction in a real classroom. She noted that the school’s address was in a residential neighbourhood.

III. Did the officer treat Mr. Sekhon unfairly? 9 The Minister argues that the officer gave Mr. Sekhon a chance to respond to her concerns about the genuineness of his job offer. Accord- ingly, she treated him fairly. I disagree. 10 In her correspondence with Mr. Sekhon, the officer stated that she was not satisfied that the offer of employment was genuine or that the school was actively conducting business at the address provided. Mr. Sekhon provided further documents but these did not satisfy the officer’s concerns. 11 However, from the officer’s notes, it appears that the officer had more specific concerns of which Mr. Sekhon would have been unaware. For example, the officer was sceptical about the location of the school and its ability to pay Mr. Sekhon’s salary. She was also concerned about the school’s late tax remittances, the lack of a business registration for the school, and the absence of a further updated job offer. 12 Mr. Sekhon’s submissions were directed to the officer’s concerns about whether the school was carrying on business at the stated address. The parents’ letters and photographs were aimed at meeting those concerns, and further documentation was provided regarding the school’s fi- Sekhon v. Canada (MCI) James W. O’Reilly J. 19

nances. But Mr. Sekhon could not have met the officer’s other unstated concerns because he was not made aware of them. 13 Accordingly, I find that Mr. Sekhon was not given a fair opportunity to meet the officer’s concerns about the shortcomings of his application.

IV. Conclusion and Disposition 14 The officer did not give Mr. Sekhon a chance to meet her real concerns about his application. Therefore, he was not treated fairly. Accord- ingly, I must allow this application for judicial review and order a reassessment of Mr. Sekhon’s application by another officer. Neither party proposed a question of general importance for me to certify, and none is stated.

Judgment THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed. The matter is referred back to another officer for a reassessment. 2. No question of general importance is stated. Application granted. 20 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

[Indexed as: Andoni v. Canada (Minister of Citizenship & Immigration)] Altion Andoni, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5953-11 2012 FC 516 James Russell J. Heard: March 14, 2012 Judgment: May 3, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board — Reasons for decision –––– Citizen of Albania claimed protection on basis that he was victim of blood feud — Claim was delayed between 2001 and 2009 while claimant attempted to be sponsored by parents for immigration to United States — Board rejected claim on basis that claimant’s actions were inconsistent with subjective fear of persecution, he did not rebut presumption of state protection, and some of his evidence was not credible — Claimant applied for judicial review of decision — Application granted — Reasons lacked logical framework and were confusing — It was unclear if state protection finding stood alone or depended on adverse credibility finding and if board found that claimant actually lacked fear of persecution — It was also unclear whether board considered claimant’s explanations for alleged inconsistencies in his evidence — Board appeared to rely on evidence in its own knowledge to which it did not give claimant opportunity to respond — Certain negative credibility findings and findings of fact were in any event unreasonable. Cases considered by James Russell J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — considered Bautista v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 126, 2010 CarswellNat 1440, 2010 CarswellNat 260, 2010 FC 126, [2010] F.C.J. No. 153 (F.C.) — considered C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Andoni v. Canada (MCI) 21

Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — considered Carrillo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 94, 69 Imm. L.R. (3d) 309, 2008 CAF 94, (sub nom. Flores Carrillo v. Canada (Minister of Citizenship & Immigration)) [2008] 4 F.C.R. 636, 2008 CarswellNat 1953, 2008 CarswellNat 605, 377 N.R. 393, [2008] F.C.J. No. 399 (F.C.A.) — considered Chaves v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 333, 2005 FC 193, 45 Imm. L.R. (3d) 58, 2005 CF 193, 2005 Car- swellNat 2493, [2005] F.C.J. No. 232 (F.C.) — considered Cosgun v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 400, 2010 CarswellNat 871, 2010 CF 400, 2010 CarswellNat 2630, [2010] F.C.J. No. 458, [2010] A.C.F. No. 458 (F.C.) — considered Elmi v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 773, 2008 CarswellNat 2823, 2008 CarswellNat 2042, 2008 FC 773 (F.C.) — considered Florea v. Canada (Minister of Employment & Immigration) (June 11, 1993), Doc. A-1307-91, [1993] A.C.F. No. 598, [1993] F.C.J. No. 598 (Fed. C.A.) — considered Hinzman, Re (2007), 2007 CarswellNat 950, 2007 FCA 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 282 D.L.R. (4th) 413, 2007 CarswellNat 3596, 63 Imm. L.R. (3d) 13, 2007 CAF 171, (sub nom. Hinzman v. Canada (Minister of Citizenship & Immigration)) 362 N.R. 1, 61 Admin. L.R. (4th) 313, [2007] F.C.J. No. 584 (F.C.A.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Leung v. Canada (Minister of Employment & Immigration) (1990), 12 Imm. L.R. (2d) 43, 74 D.L.R. (4th) 313, 129 N.R. 391, 1990 CarswellNat 67, [1990] F.C.J. No. 908 (Fed. C.A.) — referred to Lozada v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 823, 2008 FC 397, [2008] F.C.J. No. 492 (F.C.) — considered Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, 1979 CarswellNat 168, 1979 CarswellNat 168F, 31 N.R. 34, [1979] F.C.J. No. 248 (Fed. C.A.) — considered Moin v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4798, 2007 CarswellNat 1018, 2007 CF 473, 2007 FC 473, [2007] F.C.J. No. 639 (F.C.) — referred to 22 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Saeed v. Canada (Minister of Citizenship & Immigration) (2006), 298 F.T.R. 307 (Eng.), 2006 CF 1016, 2006 CarswellNat 2595, 2006 FC 1016, 2006 CarswellNat 5502, [2006] F.C.J. No. 1281 (F.C.) — considered Salguero c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2009), 2009 FC 486, 2009 CarswellNat 4127, 2009 CarswellNat 1243, 2009 CF 486, [2009] F.C.J. No. 594 (F.C.) — considered Sanchez c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2000), 2000 CarswellNat 763, 2000 CarswellNat 1635, [2000] F.C.J. No. 536 (Fed. T.D.) — considered Sheikh v. Canada (Minister of Employment & Immigration) (1990), 1990 Car- swellNat 42, 1990 CarswellNat 695, 11 Imm. L.R. (2d) 81, [1990] 3 F.C. 238, 71 D.L.R. (4th) 604, 112 N.R. 61, [1990] F.C.J. No. 604 (Fed. C.A.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada Andoni v. Canada (MCI) James Russell J. 23

(Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Wu v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 2913, 2009 FC 929, 2009 CarswellNat 5423, 2009 CF 929, [2009] F.C.J. No. 1143 (F.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 7 — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96(a) — considered s. 96 “r´efugi´e” — considered s. 97 — considered s. 97(1) — considered Rules considered: Refugee Protection Division Rules, SOR/2002-228 R. 18 — considered

APPLICATION by claimant for judicial review of decision of Immigration and Refugee Board finding him not to be Convention refugee or person in need of protection.

Jeffrey L. Goldman, for Applicant Teresa Ramnarine, for Respondent

James Russell J.: Introduction 1 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 26 July 2011 (Decision), which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

Background 2 The Applicant is a 37-year-old citizen of Albania who seeks protection in Canada from a blood feud between his family (Andonis) and the Fezjiu family (Fezjius). 24 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

3 The Applicant says that his parents have been trying to arrange a marriage between him and a member of Fezjius since February 2000. In April 2000, his parents completed an arrangement to engage the Appli- cant to Ela, a member of the Fezjius. After a celebration, the two families were bound together and announced the engagement publicly. 4 The Applicant told his parents in June 2000 that he did not want to get married because he had fallen in love with another woman called Kole. However, his parents told him he had to get married to Ela because they were bound by the Kanun laws. If they broke the arrangement, they would be in danger from the Fezjius. 5 Kelia, Ela’s brother, met the Applicant in a coffee shop in August 2000 to talk about the wedding. The Applicant told Kelia he did not want to get married anymore. Kelia said that the Applicant was young and would put aside such silly thoughts after he was married. When the Ap- plicant insisted that he did not want to get married, Kelia grabbed him and threatened to kill him, saying that the refusal to marry was the same as killing Ela. 6 The next day, Ela’s parents came to the Applicant’s home which he shared with his parents. Ela’s parents told the Applicant’s parents about Kelia’s conversation with him the day before; they also told the Appli- cant’s parents to make the Applicant marry Ela because, if he did not marry her, it would destroy her future. The Applicant’s parents spoke with him and told him there would be trouble if he did not go through with the marriage. Ela’s parents telephoned the Applicant’s parents several days later to confirm that the wedding was still on. The Applicant’s parents gave no answer because the Applicant was still insisting that he did not want to get married. 7 In September 2000, two of Ela’s brothers came to the Applicant’s house; they grabbed him and told him they wanted to talk with his parents. When he resisted, Rudi — another of Ela’s brothers — pushed the Applicant to the ground and punched him. Neighbours who witnessed this event called the police, who came and separated the Applicant from Ela’s brothers. When the Applicant’s mother demanded that the police arrest Ela’s brothers, the police refused, saying it was a personal family matter. After this event, the Applicant and his family began to receive death threats over the telephone; the people who threatened them told them to watch out because they were in a blood feud. 8 The Applicant’s father went to the Mayor of the municipality where they lived to address the situation between his family and the Fezjius. Andoni v. Canada (MCI) James Russell J. 25

The Mayor sent the Applicant’s father to an elder in Borova, Albania, who dealt with blood feuds. This man went to the Fezjius, but they said this was a problem between them and the Andonis family and no one else. The elder then told the Applicant’s father to attempt reconciliation to solve the dispute between the two families. 9 In January 2001, while he was putting out garbage at the restaurant where he worked, a car drove at the Applicant and knocked him down. Ela’s brothers got out of the car and attacked the Applicant, but his co- workers dragged him inside the restaurant to save him from the attack. Ela’s brothers left and the Applicant went to the hospital to be treated. His father called the police, but they again said they could not intervene because it was a personal matter. They suggested that the National Rec- onciliation Commission (NRC) would help. The police did not interview the Applicant. 10 Because the blood feud posed a danger to the restaurant, the Appli- cant’s boss gave him some money and told him to leave Albania. The Applicant went home and spoke with his parents. Some days later, a car drove by the Andonis’ home and fired gunshots through their living room window. 11 After this event, the Applicant fled Albania. He went to Athens, Greece on 14 January 2001, and then traveled to Madrid, Spain on 25 January 2001. From Madrid, he traveled to Sau Paulo, Brazil on 29 Janu- ary 2001. The Applicant then came to Toronto on 14 February 2001. While he was in Toronto, he claimed protection but then went to Detroit, in the United States of America (USA) on 16 February 2001. The Appli- cant’s parents immigrated to the USA from Albania sometime in 2001. He says that, while he lived in the USA, his parents tried to sponsor him to immigrate there. However, in October 2009, when he pled guilty and was convicted of operating a vehicle while visibly impaired, this made sponsorship to the USA impossible. 12 The Applicant returned to Canada on 12 March 2009 and claimed protection again on 16 March 2009. Because the Applicant had left after he claimed protection in 2001, the RPD invited the Respondent to participate in the Applicant’s hearing. The Respondent provided written submissions and said that the Applicant’s initial claim was not referred to the RPD because he had not appeared for his initial screening interview. The RPD had not declared his claim abandoned, so he was not excluded from claiming protection in 2009. 26 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

13 The Respondent did not participate in the hearing which the RPD conducted on 8 April 2011.The RPD refused the Applicant’s claim for protection on 26 July 2011 and notified him of the Decision on 11 Au- gust 2011.

Decision Under Review 14 The RPD refused the Applicant’s claim for protection because it found that his actions were not consistent with his stated fear and because he had not shown that Albania could not protect him if he returned there. The RPD also found that the Applicant had no nexus to a Conven- tion ground, so his claim for protection under section 96 of the Act failed.

Credibility 15 The RPD reviewed the Applicant’s testimony that he went to the USA because he believed he would be killed if he stayed in Albania. It noted that he had not claimed protection in the USA in the eight years he had been there, and had explained this by saying that his friends told him the USA does not accept claims arising from blood feuds. The RPD noted the USA offers protection under its Withholding of Removal process, even though blood feuds usually do not establish a nexus to a Con- vention ground in the USA. 16 The RPD found there was no evidence that the Applicant approached anyone with knowledge of the refugee process in the USA to find out about claiming protection there. It also found that, if he believed he could not have claimed protection in the USA, he could have returned to Can- ada and claimed protection. The RPD noted that Canada has offered protection to claimants from Albania since 2002. The RPD found that living in the USA for eight years without claiming protection there was inconsistent with the Applicant’s stated fear. 17 The RPD also reviewed the Applicant’s testimony about the blood feud. When it asked him why he thought his family was in a blood feud with the Fezjius, he said it was because he refused to go through with the marriage. He testified that his neighbours told him to watch out because he was in a blood feud and that the Fezjius told the neighbours they were in a feud with the Andonis. The RPD noted the Applicant had not mentioned the Fezjius telling his neighbours about the feud in his PIF and that a formal declaration is usually sent through an emissary to initiate a blood feud. Since the neighbours did not indicate they were delivering a Andoni v. Canada (MCI) James Russell J. 27

message for the Fezjius, the RPD found that there was no declaration of a blood feud. 18 The RPD found that, if the Applicant expected the police to take action to protect him, he would have needed to file a report with them. It reviewed his testimony about the incident at the restaurant in January 2001, noting he had not filed a police report. The RPD also reviewed the incident at the Applicant’s home in September 2000, where Ela’s brothers attacked him, but no one was injured. It found that it was not unusual for the police not to make an arrest where there were no injuries. It also found that the Applicant had not reported to the police the threats the Andonis family received over the telephone or the gunshot through their window. These incidents did not satisfy the RPD that the police would not assist the Applicant or his family. 19 The Applicant testified that, when he went to the hospital after the attack at the restaurant, he was bleeding from the outside of his ear; the RPD said he wrote in his PIF that he was bleeding from the inside of the ear and was held for observation at the hospital. Although he made submissions that the location of the bleeding was not important, the RPD found that bleeding on the outside of the ear would not usually result in being held overnight for observation, so it found this account was not credible. 20 Although the Applicant submitted a letter from Gjin Marku (Marku), the Chair of the NRC (Reconciliation Letter), the RPD gave this letter little weight to establish that the Applicant is at risk in Albania. It noted that the details in the Reconciliation Letter were the same as those in the Applicant’s PIF, except that the Reconciliation Letter did not say anything about any attempts to contact the police. The RPD expected that the NRC would have assisted the police where there was evidence that Albanian law was being ignored. It also noted that the Reconciliation Letter did not show from which sources it drew its information. The RPD found that there might be reasons why two families would mislead Marku. This had happened before. 21 The RPD also found that two letters (Verification Letters) the Appli- cant submitted — one from the Mayor of Ersecke Municipality in Alba- nia (Mayor) and one from the Elders of Borove Village, also in Albania (Elders) — provided insufficient evidence of his risk of harm. Both letters confirmed a blood feud between the Andonis and the Fezjius arising from the Applicant’s cancelled marriage to Ela and said that efforts to reconcile the families had failed. The RPD said, however, that these doc- 28 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

uments did not provide specifics about the efforts made to reconcile, or how the authors learned of the blood feud between the Andonis and the Fezjius.

State Protection 22 The RPD found the Applicant had not provided reliable and probative evidence that state protection would be inadequate if he returned to Alba- nia and the Fezjius found and approached him. It also found he had not made reasonable efforts to approach Albania for protection when he was living there. 23 When it analyzed state protection, the RPD looked first to the country condition documentation before it which showed that killings related to blood feuds were decreasing in Albania. A report from the Federal De- partment of State in the USA — Country Reports on Human Rights Practices for 2009: Albania (DOS Report) — found that blood feud killings had decreased and fewer families were in self-confinement in the Shkoder area of Albania. 24 The RPD also examined Response to Information Request (RIR) ALB103570.E which indicated there were sometimes false reports of blood feuds. The RIR also included comments from Marku where he said the NRC investigates the possibility of mediation where it receives appropriate information. The RPD said that parties to mediation could mislead the NRC and it would not be able to discover this deception in the field. It also said that two families could falsely create the appearance of a blood feud to support a family member’s claim for protection or to exaggerate the scope of the blood feud problem. 25 Although the NRC kept track of blood feuds, the RPD found that, because its statistics were based on self-reporting and were gathered by volunteers, its information may not be as accurate as Marku claimed. Marku said in the Reconciliation Letter that revenge killings had increased since December 2009. The RPD put little weight on Marku’s statements as reported in RIR 103570.E and in his letter. 26 The RPD also referred to an issue paper (Issue Paper) authored by the Immigration and Refugee Board (IRB). It noted that this paper relied on information which, although dated, was generally accepted by all of the sources. The Issue Paper noted that some academics had concerns about the validity of letters, such as the one the Applicant submitted from the NRC. The RPD found that it was plausible Marku had been mislead into believing the Applicant was in a blood feud. Andoni v. Canada (MCI) James Russell J. 29

27 Although the Issue Paper included quotations from people who believed that families involved in blood feuds would not receive adequate protection from the authorities in Albania, the RPD noted that these quotations seemed to be opinions and did not include examples of failures of state protection. The Issue Paper also reported on laws in Albania specific to blood feuds, which Marku had criticized because prosecutors did not always lay charges. Further, the Issue Paper included quotations from Marku which said police intervention sometimes increased the blood- shed. However, there were no examples of how this occurred. 28 Ultimately, the RPD said that the Issue Paper relied on many sources which were not always consistent and could be used to support any position. The RPD found that there are many families in self-confinement in Albania and that there are more blood feuds in Northern Albania than in other areas. It also found that authorities in Albania had successfully reduced the number of blood feuds through prosecutions, though some times charges were reduced. 29 The RPD concluded that there was insufficient evidence that police were unwilling to investigate credible threats which were part of blood feuds. Where there were witnesses to a threat, as in the Applicant’s case, claimants must show they sought protection in Albania before they can ask for protection in Canada. It was not enough for the Applicant to have sent his father to the police when his father had no first-hand information about what was happening to him. On this basis, the RPD concluded that the Applicant had not made reasonable efforts to seek Albania’s protection. It also concluded that Albania is making serious efforts to protect citizens from blood feuds. The Applicant had not established he would be harmed or killed in Albania.

Statutory Provisions 30 The following provisions of the Act are applicable in this proceeding: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or [...] 30 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Person in Need of Protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care [...] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; [...] Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; Andoni v. Canada (MCI) James Russell J. 31

b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes in- ternationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. [...] 31 The following provision of the Refugee Protection Division Rules SOR/2002-228 (Rules) is applicable in this proceeding: 18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to (a) make representations on the reliability and use of the information or opinion; and (b) give evidence in support of their representations. 18. Avant d’utiliser un renseignement ou une opinion qui est du res- sort de sa spécialisation, la Section en avise le demandeur d’asile ou la personne protégée et le ministre — si celui-ci est présent a` l’audience — et leur donne la possibilité de: a) faire des observations sur la fiabilité et l’utilisation du renseignement ou de l’opinion; b) fournir des el´´ ements de preuve a` l’appui de leurs observations.

Issues 32 The Applicant raises the following issues in this application: a. Whether the RPD’s credibility finding was reasonable; b. Whether the RPD’s state protection finding was reasonable; c. Whether the RPD provided adequate reasons; d. Whether the RPD applied the incorrect test for state protection; 32 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

e. Whether the RPD breached his right to procedural fairness by denying him the opportunity to respond, denying him the right to counsel, and failing to consider his submissions.

Standard of Review 33 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 34 In Aguebor v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 732 (Fed. C.A.) the Federal Court of Appeal held that the standard of review on a credibility finding is reasonableness. Further, in Elmi v. Canada (Minister of Citizenship & Immigration), 2008 FC 773 (F.C.), at paragraph 21, Justice Max Teitelbaum held that findings of credibility are central to the RPD’s finding of fact and are therefore to be evaluated on a standard of review of reasonableness. Finally, in Wu v. Canada (Minister of Citizenship & Immigration), 2009 FC 929 (F.C.), Justice Michael Kelen held at paragraph 17 that the standard of review on a credibility determination is reasonableness. The standard of review on the first issue is reasonableness. 35 In Carrillo v. Canada (Minister of Citizenship & Immigration), 2008 FCA 94 (F.C.A.), the Federal Court of Appeal held at paragraph 36 that the standard of review on a state protection finding is reasonableness. This approach was followed by Justice Leonard Mandamin in Lozada v. Canada (Minister of Citizenship & Immigration), 2008 FC 397 (F.C.), at paragraph 17. Further, in Chaves v. Canada (Minister of Citizenship & Immigration), 2005 FC 193 (F.C.), Justice Dani`ele Tremblay-Lamer held at paragraph that the standard of review on a state protection finding is reasonableness. The standard of review on the second issue is reasonableness. 36 In N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.), the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of Andoni v. Canada (MCI) James Russell J. 33

possible outcomes.” The adequacy of reasons, therefore, is to be analysed along with the reasonableness of the Decision as a whole. 37 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” 38 The opportunity to respond, right to counsel, and right to have submissions considered are all elements of the duty of procedural fairness. In C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), the Supreme Court of Canada held at paragraph 100 that “It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Further, the Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 (F.C.A.) at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” The standard of review on the fifth issue is correctness. 39 In Saeed v. Canada (Minister of Citizenship & Immigration), 2006 FC 1016 (F.C.), Justice Yves de Montigny held at paragraph 35 that, when examining the RPD’s application of the test for state protection, the appropriate standard of review is correctness. Justice Paul Crampton made a similar finding in Cosgun v. Canada (Minister of Citizenship & Immigration), 2010 FC 400 (F.C.) at paragraph 30. The standard of review on the fourth issue is correctness.

Arguments The Applicant 40 The Applicant argues that the RPD’s Decision is unreasonable because no reasonable tribunal could find on the evidence which was before the RPD that the Applicant is not a Convention refugee. 34 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Unreasonable Credibility Finding 41 The RPD’s finding that he was not credible was unreasonable because it was based on errors of fact. The RPD relied on the availability of protection in the USA when it found he was not credible because he had lived there for eight years without claiming status. There was no evidence before the RPD that protection is available in the USA for victims of blood feuds. The RPD did not notify the Applicant of the evidence it was relying on to make this finding and thus denied him the opportunity to respond and to know the case he had to meet. 42 Under section 18 of the Rules, the RPD can rely on specialized knowledge to ground a finding of fact. However, it must give notice to claimants and allow them the opportunity to respond. The RPD did not mention in the hearing that the availability of protection in the USA was in issue, so it breached section 18 of the Rules when it relied on this specialized knowledge. If the RPD expected the Applicant to show that protection was not available in the USA, it was under a duty to put this expectation to him; since it did not, the Decision must be overturned.

Delay in Claiming 43 The Applicant challenges the RPD’s finding that he had lived in the USA for eight years without claiming status. This finding is also based on an error of fact. As he said in his PIF, his parents immigrated to the USA in June 2001 and were attempting to sponsor him; he also testified at the hearing that they lived there. The Applicant says he was aware of his options in the USA and was being sponsored to regularize his status. However, as soon as his immigration status in the USA was put in doubt by his arraignment on charges on 24 February 2009, he moved quickly to claim protection in Canada. The RPD’s credibility finding was unreasonable because it was made on the basis of an erroneous finding of fact.

No Efforts in the USA 44 The RPD also erred when it found that the Applicant had not approached anyone to find out about his options to regularize his status in the USA. He testified that he asked his friends and lawyers about the refugee process in the USA.

No Declaration of a Feud 45 When the RPD found that there was no declaration of a blood feud, it ignored evidence before it that this actually happened. The Applicant tes- Andoni v. Canada (MCI) James Russell J. 35

tified at the hearing that his neighbours told the Andonis family about the blood feud and that the neighbours knew about the blood feud because the Fezjius told them. The RPD ignored this testimony. The formal declaration came from the neighbours. The RPD also did not refer to any evidence which showed that anything more than this statement from the neighbours was required to initiate a blood feud. If the RPD relied on its specialized knowledge to show that more was required, it had to give the Applicant notice and allow him the opportunity to respond. Its failure to do either breached his right to procedural fairness.

Blood from the Ear 46 The RPD mischaracterized the evidence with respect to the injuries he suffered after the attack at the hospital. The Applicant notes that he wrote in his PIF that he was bleeding from the ear and that he testified that he was kept overnight at the hospital because staff there thought he might have a concussion. The RPD only refers to scratches on his ear in the Decision, even though it knew at the hearing that hospital staff were concerned about a concussion. This shows that the RPD failed to consider the Applicant’s testimony on a matter directly related to its credibility finding.

Corroborating Documents 47 The RPD also unreasonably rejected the Marku Letter. The RPD did not refer to any evidence that the Applicant or his family attempted to mislead Marku, though it said this appeared to be the case. The RPD’s reasons are inadequate because they do not show how it came to this conclusion. 48 Further, when the RPD rejected the Reconciliation Letter it relied on a report that was not in evidence. In the Decision, the RPD referred to the Report of the Special Rapporteur on Extrajudicial, Summary or Arbi- trary Executions, Philip Alston: Preliminary Note on the Mission to Al- bania, (Alston Report). The RPD found this report included evidence that letters from the NRC are not always factual. The Applicant says that the author of this report, Philip Alston, did not make the comments the RPD says he did. 49 The RPD also alleged that he and his family have attempted to perpe- trate fraud on the RPD, but did not put this allegation to him during the hearing or give him an opportunity to address it. He says that it would be impossible to deceive the Elders, who wrote a letter on his behalf. The 36 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

RPD’s failure to put this allegation to him is a breach of his rights under section 7 of the Charter of Rights and Freedoms. The Elders have no interest in defrauding the RPD and it has given no reason why other families would jeopardize themselves simply to support his claim for protection. 50 If the RPD alleges that the documents a claimant has put before it are fraudulent, it must compare those documents with something and show specific evidence of fraud (see Moin v. Canada (Minister of Citizenship & Immigration), 2007 FC 473 (F.C.)).

Inadequate Reasons 51 The RPD provided inadequate reasons for giving little weight to the letters the Applicant submitted to prove his claim. Although the RPD gave the letters from the Mayor and Elders insufficient weight to establish the risk he faced, these letters still establish a blood feud, even if reduced weight is put on them. Other documents which were before the RPD established the risk of harm from blood feuds, so the RPD was obligated to assess his claim from the perspective that the letters prove a blood feud. Further, there was no evidence before the RPD that a blood feud did not exist and the RPD was bound to explain its finding on this issue. When it did not explain why it determined there was no feud, the RPD provided inadequate reasons.

Verification Letters 52 The RPD’s treatment of the Verification Letters was unreasonable. Although it found these letters did not contain specifics about reconciliation or how their authors learned of the feud, the facts support the Appli- cant’s position and the RPD came to an unreasonable conclusion. 53 The RPD also erred in its treatment of these letters when it rejected them because they did not contain information that is superfluous. Spe- cifics about the reconciliation efforts and how the authors knew about the feud do not impact the weight these documents were given and it was unfair for the RPD to require them to contain such details. The RPD also did not provide adequate reasons as to why it expected this information to be included.

State Protection 54 The RPD breached the Applicant’s right to procedural fairness when it found he would need to personally make a report about what happened Andoni v. Canada (MCI) James Russell J. 37

at the restaurant in order to engage state protection. There was no evidence before the RPD that a personal report is required in Albania to get the police to act. The RPD did not put the evidence it was relying on to establish this fact to the Applicant so that he could respond. He notes that Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.) establishes a presumption of truthfulness with respect to the testimony of refugee claimants.

The Issue Paper 55 The RPD made an unreasonable state protection finding when it did not consider the Issue Paper which says that “According to Standish, relatively few blood feud cases go to court and the sentences for the cases that do are particularly derisory.” This sentence, which the RPD did not consider, establishes that blood feuds occur with impunity, a fact contrary to the RPD’s conclusion. The RPD’s failure to consider this evidence renders its Decision unreasonable. In Salguero c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2009 FC 486 (F.C.) Justice Michel Beaudry held at paragraph 13 that While one assumes that a panel has examined all of the evidence, where there exists significant evidence which contradicts the panel’s findings, it must provide reasons to explain why this evidence is deemed to be neither relevant nor reliable

Alston Report 56 Although the RPD relied in part on the Alston Report, it did not appropriately apply the facts contained in that report. The RPD found the report was correct; it shows that blood feuds continue until the wronged family achieves revenge or forgives the other family. Having concluded that the Alston Report was correct, the RPD was bound to find that families in blood feuds get no protection from the government. The RPD failed to apply the facts it found in the report which supported the Appli- cant’s claim.

Breach of Procedural Fairness 57 The Applicant says the RPD breached his right to procedural fairness by not providing adequate reasons, denying him the right to counsel, and failing to consider his submissions. The RPD did not address every issue he raised in his written submissions, even though the Alston Report supported his position. The RPD’s reasons are inadequate because they do not show that it considered his submissions. Reasons must address the 38 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

major points in issue and deal fully with a claimant’s allegations. Where the RPD does not meet this obligation, its decision must be overturned. Further, when the RPD ignored his submissions, it eliminated the possibility for effective representation, so the RPD breached the Applicant’s right to counsel.

Test for State Protection 58 The RPD did not make any finding as to the availability of state protection in Albania, even though the Alston Report shows that the Alba- nian government’s response to blood feuds is inadequate. He points to Bautista v. Canada (Minister of Citizenship & Immigration), 2010 FC 126 (F.C.) and says that the RPD must look at what is happening on the ground, rather than the efforts the state is making to protect. The RPD did not consider material evidence on state protection.

Internal Flight Alternative 59 The RPD based its state protection finding on the possibility of flight to Tirana, Albania’s capital city, but the RPD failed to consider evidence which showed the Applicant would be at risk there. The Applicant testified that the Fezjius have contacts in Tirana who could hurt him. He says that the RPD’s failure to address this evidence means its conclusion on state protection is unreasonable.

The Respondent 60 The Respondent says the RPD’s credibility and state protection findings were reasonable because they were based on all the evidence which was before it. The Applicant has not demonstrated any reviewable error.

Credibility Finding was Reasonable No Claim in the USA 61 The RPD reasonably concluded the Applicant was not credible because he lived in the USA for eight years without seeking protection there. The Applicant did not provide evidence that he had sought protection in the USA, even though the onus was on him to establish that he had a subjective fear of persecution. The RPD made five reasonable findings of fact related to the Applicant’s failure to claim in the USA: a. He lived in the USA for eight years without status; b. He did not claim protection in the USA because his friends said claims like his would not be accepted; Andoni v. Canada (MCI) James Russell J. 39

c. There was no evidence he approached anyone with appropriate knowledge to ask about his options; d. He claimed protection in Canada in 2001, but left before his claim could be completed; e. He could have returned to Canada to pursue his claim if he believed he would be returned to Albania from the USA. 62 Although the Applicant has sworn in his affidavit on judicial review that he consulted a lawyer in the USA, the Respondent says that there was no evidence before the RPD that he had done this. He did not mention the lawyer in either his PIF or his oral testimony. Judicial review only deals with the record before the decision maker. It is inappropriate for the Applicant to try and bolster his claim in this way, particularly where the PIF instructs claimants to include “all significant events and reasons that have led you to make a claim for refugee protection in Canada.” 63 On the basis of the evidence before it about the Applicant’s failure to claim in the USA, the RPD found the Applicant was not credible. The RPD fully understood the facts of his case, but remained concerned that he had not explored all of the options available to him to avoid going back to Albania. The Applicant was not credible because his failure to claim in the USA was inconsistent with his fear of being returned to Al- bania. This finding was reasonable.

Inconsistencies in the Applicant’s Evidence 64 The RPD also reasonably found that the Applicant was not credible based on inconsistencies in his evidence. It is open to the RPD to make negative credibility findings based on contradictions, inconsistencies, and implausiblities (see Sheikh v. Canada (Minister of Employment & Immigration), [1990] F.C.J. No. 604 (Fed. C.A.) and Leung v. Canada (Minister of Employment & Immigration), [1990] F.C.J. No. 908 (Fed. C.A.). Several inconsistencies in the Applicant’s evidence led the RPD to conclude he was not credible. 65 First, the Applicant testified that neighbours told his family about the feud, but his PIF did not include this detail. The RPD found there was no blood feud based on the Applicant’s testimony about how his family learned about it. He testified that his family had received threatening telephone calls and that neighbours told them to watch out because they were in a blood feud. Given this inconsistency, it was reasonable for the RPD to find that the Applicant was not credible. 40 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

66 Although the Applicant says in his affidavit on judicial review that the neighbours acted as emissaries to inform his family that the blood feud was on, this was not in his PIF or testimony at the hearing. The Court should not consider the new evidence the Applicant seeks to intro- duce in this respect. 67 Second, although the Applicant has suggested the RPD’s analysis is unreasonable because it puts insufficient weight on the Reconciliation Letter, the RPD considered this letter as objective evidence that a blood feud existed. However, it was reasonable for the RPD to assign little weight to this letter because the NRC does not independently verify whether incidents leading to blood feuds have actually occurred. 68 Third, there were inconsistencies in the Applicant’s evidence about the injuries he says he suffered after the incident at the restaurant. He testified that he was bleeding from the back of his ear after the attack, but wrote in his PIF that blood came from inside his ear. The Applicant claimed that he was held overnight in the hospital because of his injuries. Hence, the source of the blood from his ear was relevant to his credibility on this aspect of his testimony.

State Protection Finding was Reasonable Applicant has not Rebutted the Presumption 69 The Respondent notes that Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.) establishes a presumption that states are capable of protecting their citizens. Ward also establishes that refugee protection is not available if claimants have made inadequate efforts to engage the protections their home states. Further, Hinzman, Re, 2007 FCA 171 (F.C.A.) teaches that claimants bear a heavy burden to rebut the presumption of state protection in countries where there is a well-developed protection apparatus. 70 In this case, the Applicant simply did not do enough to engage Alba- nia’s protection before he fled. All that he did was send his father and neighbours to contact the police, which is insufficient. The RPD also found that the Albanian police responded when they were called to his home in September 2000. The Applicant did not report to police personally after the attack at the restaurant in January 2001. The Applicant’s family also did not call the police when gunshots were fired through their living room window. On this evidence, it was reasonable for the RPD to conclude that the Applicant had not rebutted the presumption of state protection. Andoni v. Canada (MCI) James Russell J. 41

RPD Considered all the Evidence 71 Even though the RPD may not have mentioned every piece of evidence before it in its reasons, this is not an error that requires reconsideration. Florea v. Canada (Minister of Employment & Immigra- tion), [1993] F.C.J. No. 598 (Fed. C.A.) establishes that the RPD is presumed to have considered all the evidence, even if it does not mention everything in its reasons. In this case, the RPD’s reasons show that it grasped the issues and relevant evidence before it. The RPD examined the Alston Report, the DOS report, and the 2009 European Union Pro- gress Report as well as evidence from Marku. The RPD explained why it assigned the weight it did to the evidence before it. The RPD reasonably found there was no evidence that state protection would not be forthcoming if the Applicant returned to Albania.

The Applicant’s Reply 72 In response to the Respondent’s objection to the introduction of new evidence in his affidavit, the Applicant notes that his affidavit was filed on judicial review. It follows that the affidavit was not before the RPD when it made its Decision. He also says that he testified at the hearing that he consulted a lawyer with respect to his asylum claim. 73 The Applicant says that his failure to claim in the USA is not part of “all the significant events and reasons that have led [him] to make a claim for refugee protection,” so he was not required to address this in his PIF. However, he also says that he mentioned in his PIF that, when his conviction in the USA made it impossible for him to claim asylum there, he claimed protection in Canada. All the information the RPD needed to adjudicate his claim was before it. The Respondent’s objection to the information he put in his affidavit shows that the RPD should have addressed additional facts in its reasons. The Respondent relies on the Applicant’s affidavit as justification for the RPD’s failure to refer to relevant evidence, but this evidence was actually before the RPD and it did not consider or refer to it.

The Respondent’s Further Memorandum 74 The Respondent points to Sanchez c. Canada (Ministre de la Citoyennet´e & de l’Immigration), [2000] F.C.J. No. 536 (Fed. T.D.) and says that the Applicant’s failure to mention important facts in a PIF which he later described in his oral testimony was a legitimate basis for the RPD to conclude he was not credible. Although the Applicant said at 42 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

the hearing that he spoke to a lawyer about claiming asylum, he did not mention this in his PIF. In a similar way, the Applicant did not mention in his PIF the head wound, which led to his being kept overnight in the hospital, so it was reasonable for the RPD to conclude he was not credible on this basis. 75 Although the Applicant takes issue with the RPD’s finding that the USA offers two forms of protection, the Respondent says that the RPD simply described the forms of protection the USA offers. This information did not enter the RPD’s analysis and specialized knowledge was not used. No error arises from this aspect of the Decision.

Analyis 76 It is difficult to determine the true grounds of this Decision. The following paragraphs from the Decision set out the framework and the general findings: 4. The claimant’s actions in the US are not consistent with his stated fear. The claimant did not establish that for him the effort of the state would provide inadequate protection. Parts of his evidence were not credible. Hence, I reject the claim. ... 17. Concerning the issue of state protection, today, if the claimant were to live in the capital, I have reviewed the current documents. ... 32. Ten years ago, the claimant did not make reasonable efforts to seek the assistance of the state. Today, I am satisfied the claimant did not establish with reliable and probative evidence that if he was found and approached, that the state would provide inadequate protection. IN SUMMARY: • The claimant’s actions in the US were inconsistent with his stated fear • The claimant did not make reasonable efforts to access the protection of the state prior to leaving Albania • The claimant’s account of the declaration of a blood feud was inconsistent with that of the documentary evidence • The claimant’s account of his injuries was inconsistent and hence not credible • The current country documents show Albania is making serious efforts to protect its citizens who fear harm as a result of Andoni v. Canada (MCI) James Russell J. 43

the declaration of a blood feud, these efforts are most successful in the capital • Nexus was not established 77 It looks to me as though the RPD is saying that: a. The Applicant’s behaviour in the US is not consistent with subjective fear; b. The Applicant has not rebutted the presumption of adequate state protection; c. Some of the Applicant’s evidence is not credible. 78 What is not clear from the Decision as a whole is: a. Is there a finding that the Applicant lacked subjective fear? The fact of his actions in the US being inconsistent with his stated fear is not, in my view, the same thing as saying that the Applicant has not established he has subjective fear on all the evidence; b. Is the adequate state protection finding based upon a notional assumption that the Applicant’s narrative is true, or is it based upon the RPD’s rejection of the Applicant’s account of his past attempts to elicit the protection of the state, either because those past efforts are accepted as true but are insufficient to rebut the presumption, or because the RPD finds non-credible the Applicant’s past attempts to secure state protection? c. In looking forward at current state protection, is the finding of failure to rebut state protection as it exists today stand-alone or, because so much time has now elapsed, do the Applicant’s earlier dealings with the police remain a relevant part of the analysis for the current level of state protection? 79 The RPD does not say its state protection finding is a stand-alone determinative ground for refusing the claim. 80 Also, when the RPD says that Albania’s “serious efforts” are “most successful in the capital,” has the RPD addressed the “operational adequacy” of those efforts, and is the RPD saying the Applicant will only be safe in the capital? These important issues are just not clear. 81 In my view, the Decision lacks a logical framework and this makes it confusing and difficult to assess. This confusion is not alleviated when the details of the analysis are examined. 44 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

82 For example, if I look at the finding that the “claimant’s actions in the US are not consistent with his stated fear” the RPD’s analysis is as follows: [5] The claimant testified that when he entered the US, he believed he would have been killed, if he had remained in Albania. He had no status in the US, but he made no claim for protection. His only explanation was that he had heard from a number of friends in the US that claims of blood feuds would not be accepted. [6] The US offers two forms of protection, and while blood feuds usually lack a nexus to a Convention ground, this is not the case for protection under Withholding of Removal. [7] There is no evidence the claimant actually approached anyone with knowledge of the refugee process in the US to inquire as to his options. If in fact, the claimant believed he could not make any form of claim in the US, which has not been established, the claimant had started a claim process in Canada that he abandoned before it was referred to the Board. If the claimant believed he would be murdered if deported to Albania, he could have returned to Canada and made a claim for protection. In 2002, Canada, after the implementation of the Immigration and Refugee Protection Act (IRPA), was certainly accepting claims from Albania, pursuant to section 97 of the IRPA. I do not accept that remaining in the US for eight years without status and without exploring all options, including returning to Canada, is inconsistent with his stated fear. Hence, I make a negative credibility finding. 83 There are a number of problems with these findings. First of all, the Applicant gave evidence at the hearing as follows: Member: So, why didn’t you make any attempt to obtain some form of legal status in the United States? Claimant: I knew that the United States did not — do not [sic] take into consideration claims based on blood feuds. Member: How did you know that? Claimant: I have a number of friends in the US who had claimed on similar cases and they had not been successful. So, I knew from them, and I’ve asked lawyers as well. 84 So there was evidence that the Applicant not only asked his friends, but also consulted lawyers. Does the RPD believe that lawyers have no knowledge of US law? Does the RPD find non-credible the Applicant’s statement that he went to see lawyers? Is the significant point that the Applicant did not come to Canada? If so, what is the relevance of his not Andoni v. Canada (MCI) James Russell J. 45

“exploring all the options,” and is consulting lawyers considered an op- tion that he did not explore when he says he did? What is the evidence (there is no reference) that the RPD is relying upon that blood feuds usually lack a nexus in the USA, but not under “Withholding of Removal,” and why was this matter never put to the Applicant? If the RPD was relying upon its own knowledge here, section 18 of the Rules means it had an obligation to put the matter to the Applicant to give him a chance to explain. Maybe the lawyers consulted by the Applicant gave him advice on this matter. Why was the Applicant’s explanation as to why he had remained in the USA for eight years not addressed by the RPD? The Applicant went to the USA because his parents, who were legally there, were sponsoring him. There is nothing to suggest this sponsorship would not succeed until the Applicant was charged and convicted of driving under the influence, at which point he came straight to Canada and claimed protection. Why is this explanation not considered reasonable? 85 There was no need for the RPD to accept any of this, but it is impossible to tell from the Decision whether the explanation was even considered and, if it was, why it was rejected as a reason for the delay in making a claim. 86 Similar problems can be found elsewhere in the Decision, perhaps none of which would matter if the adequate state protection finding was clearly stand-alone and determinative, but the RPD fails to make it clear that this is the case and my reading of the Decision as a whole does not clear up the confusion. 87 For example, if I examine the central issue of how the Applicant knew about the blood feud and the RPD’s response, I find similar problems: The claimant was asked why he suspected his family was in a blood feud. He replied that he knew after he refused to go through with the marriage that a blood feud would be declared. Further, neighbours told us to watch out since we are in a blood feud. The evidence is that the Fejzui family made threats by telephone but never declared a blood feud in any formal manner. When asked directly how the neighbours knew a blood feud was declared, the claimant responded that the Fejzui family had told them (the neighbours). According to the claimant’s Personal Information Form (PIF), Exhibit C-1, there is no reference of the neighbours being told a blood feud was declared. It is generally accepted that a blood feud such as this, occurs when a formal declaration is sent by the wronged family through an emissary to announce the declaration. I am satisfied, since the neighbours did 46 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

not indicate they were delivering a message from the Fejzui family, that there was no declaration of a blood feud. 88 There is no reference to what the RPD is relying upon for the statement that “It is generally accepted that a blood feud such as this, occurs when a formal declaration is sent by the wronged family through an emissary to announce the declaration.” If the RPD is relying upon its own knowledge, this matter was never put to the Applicant for his response. 89 The CTR reveals the following exchange on point: Member: Well, sir — I’ll try to shorten it. Was there any point before you left that your ex-girlfriend or your ex-fianc´ee’s family either approached your family personally or sent others to approach your family to tell your family that, because of your actions in refusing their daughter, they have taken this as an insult and they are declaring a blood feud? Claimant: Yes. Member: When did that happen? Claimant: In September of 2000. Member: And what happened in September of 2000. Claimant: It was the incident that happened with the two brothers who came to our home. Member: Oh, I heard all that. Where’s the part in that incident where they say that the family is in a blood feud? Claimant: Well, the thing is, right after this incident, my neigh — our neighbour, Pandi Demiri — Interpreter: Pandi Demeri. P-a-n-d-i. The last name is D-e-m-e-r-i. Claimant: — came and told us, said, “Be careful because the other family has declared blood feud against you.” Counsel: P-a-n-t-i? Interpreter: Pandi, P-a-n-d-i. Counsel: Okay. Interpreter: And the last name D-e-m-e-r-i. Claimant: I didn’t write his name in the PIF. Counsel: No problem. Member: And how did you [sic] neighbour know that a blood feud had been declared? Claimant: Because (inaudible) family has told him. Member: Is that the way a blood feud is usually declared? Andoni v. Canada (MCI) James Russell J. 47

Claimant: I don’t know how they usually do it. I know how they did it in our case. 90 It looks as though the RPD is here noting a discrepancy between the PIF narrative and the Applicant’s oral testimony. In the PIF, the Appli- cant had written at paragraph 9 of his narrative that After this incident [i.e. the assault on the Applicant by the two Fejziu brothers] we began getting death threats over the phone. Neighbours came round who knew both our families. They told us to watch out because we were in blood feud. 91 It is unclear how or why the RPD reaches a negative credibility finding on this point. The PIF says the family received death threats over the phone, but it was the neighbours who told them they were in a blood feud. This is not inconsistent with the oral testimony. So, the RPD hangs its finding on the fact that “there is no reference of the neighbours being told a blood feud was declared.” But the Applicant explains in the PIF that the neighbours had overheard the altercation between the families and it was probably them who called the police; and that the neighbours who came around to tell them they were in a blood feud “knew both our families.” Is it really a material omission from the Applicant’s PIF or an embellishment if the Applicant did not say directly that the Fejziu family told the neighbours? After all, if the neighbours knew both families and knew of the dispute between them, who else would be likely to tell the neighbours that there was a blood feud? And wouldn’t the Applicant assume if he wrote what he did write in his PIF that it would be pretty obvious who told the neighbours? Can this really be described as a material omission from his PIF? I do not think so. 92 Or is it the RPD’s point that the blood feuds are only started by “formal declaration” and neither the PIF nor the oral testimony mentions a formal declaration? If this is the point, then the RPD would need to indicate what evidence it is relying upon for this finding and, to be procedurally fair, it should have put that evidence to the Applicant and given him an opportunity to respond. 93 The Philip Alston Report, praised by the RPD for its objectivity, says that blood feuds are governed by “culturally understood rules,” but the content of these rules “differs from region to region over time.” I can find no evidence on the record that the culturally understood rules in the Applicant’s region require a formal declaration of some kind. In my view, the negative credibility finding against the Applicant on this issue is both unreasonable and procedurally unfair 48 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

94 The Decision is not clear on the extent to which the negative credibility findings and/or past attempts to elicit the protection of the police informed the adequate state protection analysis. There is clear evidence in the PIF that, as far as past incidents are concerned, the police informed the family that they would not interfere in the dispute because it was a personal family matter. This occurred after the assault by the two Fejziu brothers and after the Applicant was knocked down by a car driven by the same brothers and the Applicant had to be hospitalized. The Appli- cant is criticized for not going to the police, but the police were called on both of these occasions and said they would not get involved. It is a significant omission by the RPD not to have addressed this. 95 When the RPD says at paragraph 31 of the Decision that it has “insufficient evidence to cause me to find police are unwilling to investigate credible cases of threats as part of a blood feud,” it is not possible to tell whether the member is completely discounting the Applicant’s own evidence of what the police have said to his family in the past. The RPD certainly seems to have the past in mind for this finding because, in the same paragraph 31, it finds that Simply having his father, who had no first hand information, go to the police and not the claimant or his boss does not establish state protection would be inadequate. 96 The Applicant’s evidence as to why his father went to the police was because the Applicant was taken to the hospital. His father was told by the police that “it was a personal thing, and not something for them to bother with.” Having told the father this, there would be little point in the Applicant going to the police himself. In addition, there is strong evidence in the Alston Report, praised as objective by the RPD, that “a belief in the practice of the vindicating honour and blood outside the regular legal system remains well entrenched in certain parts of society” (emphasis added), and that its “elimination will require additional measures to those taken so far.” While this does not mean that the state will not offer protection when asked, it does not contradict the Applicant’s own experiences with the police. The police told his mother and his father when they attempted to obtain protection for the Applicant, in situations where he had been knocked to the ground or was in the hospital after being hit by a car, that they would not get involved because it was a personal family matter. 97 In addition, I think there are two basic factual errors the RPD has made in its Decision which make the Decision unreasonable. Andoni v. Canada (MCI) James Russell J. 49

98 First, the RPD concluded the Applicant’s account of the injuries he suffered after he was hit by the Fezjia’s car was not credible. The Deci- sion says “the claimant testified what when he was taken to the hospital, his ear was bleeding from cuts and scratches on the back of the ear. His written evidence was that blood was coming from inside the ear.” From the Decision, it would appear that there is an unequivocal discrepancy between what the Applicant said and what he wrote in his PIF. However, on a close reading of the PIF, there is really no inconsistency. What the Applicant wrote was “Later, I was taken to the hospital, because I was bleeding, including out of my ear and they were concerned.” This could be taken to mean from the inside of the ear, but it could also mean the outside of the ear. At the hearing, the Applicant clarified what he had written, but the RPD did not even address his explanation. 99 The RPD felt this mattered because it apparently thought blood coming from the inside of the ear would corroborate the Applicant’s story of being held in the hospital overnight for observation, but blood coming from the outside of the ear would not. This seems to call for a medical judgment, when there is nothing to show that the RPD member is a medical doctor or has any expertise in trauma medicine. At any rate, as I have already noted, if the RPD had specialized knowledge it was relying on, it had to put this to the Applicant for his comment (see section 18 of the Refugee Protection Division Rules SOR/2002-228). 100 Second, the RPD concluded that the Applicant’s actions in the USA were inconsistent with his stated fear because “he had no status in the US but he made no claim for protection” and “I do not accept that remaining in the US for eight years without status and without exploring all options, including returning to Canada is [not] inconsistent with his stated fear.” As I have noted, there was evidence before the RPD that the Applicant had attempted to regularize his status in the USA through a sponsorship application by his parents. If this was true, and the RPD does find it is not, then it would seem that the Applicant’s actions in the USA were at least not inconsistent with his stated fear. 101 As I read the Decision, the RPD was concerned that the Applicant’s behaviour in the USA showed he did not actually fear persecution in Al- bania; had he actually had this fear, he would have tried his hardest to remain in the USA, where he was safe. However, in addition to the unreasonable analysis of his reasons for not claiming asylum there, the RPD assumed that the only way he could have gained status in the USA was through an asylum claim. It did not address whether the outstanding 50 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

sponsorship application by his parents made it unnecessary for him to claim asylum. 102 It is also important to note that Applicant’s counsel spoke to this at the hearing and explained why the Applicant would not have claimed asylum in the USA Therefore, there was no point to making a claim. It would be unreasonable because there was no prospect of success. So I submit, in fact, given the information he had, legal counsel and people in the same position, multiple people in the same position, if he made the claim, it would have served to draw attention to himself and hasten his deportation or removal from the US. Therefore, it would be a move against his own interests to do that. Unless there was some foreseeable chance of success, going to the authorities in that instance could only have hurt him. He didn’t want to be removed from the States, therefore he didn’t do it, given no foreseeable chance of success. The RPD does not bother to address this explanation, so I think its conclusion on this point is unreasonable. 103 All in all, I think that the lack of clarity in the grounds, the procedural fairness issues and the unreasonable findings noted render this Decision unsafe and that the matter should be returned for reconsideration. 104 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The decision is quashed and the matter is returned for reconsideration by a differently constituted RPD. 2. There is no question for certification. Application granted. Zambrano Castro v. Canada (MCI) 51

[Indexed as: Zambrano Castro v. Canada (Minister of Citizenship & Immigration)] Mauricio Zambrano Castro, Martha Margareth Galindo Salamanca (A.K.A. Martha Margaret Galindo Salamanca), Maria Angelica Zambrano Galindo, Andres Mauricio Zambrano Galindo, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5762-11 2012 FC 309 Russel W. Zinn J. Heard: February 28, 2012 Judgment: March 15, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Credibil- ity –––– Applicant brought application for judicial review of negative decision of Refugee Protection Division of Immigration and Refugee Board finding them to be neither Convention refugees nor persons in need of protection — Application granted — Board improperly and unreasonably rejected claims pursuant to ss. 96 and 97 of Immigration and Refugee Protection Act (“Act”) without proper analysis of risk — Finding of lack of credibility regarding some aspects of evidence of applicant did not provide foundation to simply dispense with claim under s. 97 of Act. Cases considered by Russel W. Zinn J.: N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — referred to 52 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

APPLICATION by applicant for judicial review of negative decision of Refugee Protection Division of Immigration and Refugee Board finding them to be neither Convention refugees nor persons in need of protection.

Leigh Salsberg, for Applicants Christopher Crighton, for Respondent

Russel W. Zinn J.:

1 At the conclusion of the hearing, I informed the parties that I would be granting the applicants’ application for judicial review of a negative decision of the Refugee Protection Division of the Immigration and Ref- ugee Board finding them to be neither Convention refugees nor persons in need of protection. 2 In my view, the Board improperly and unreasonably rejected their claims pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 without a proper analysis of their risk. 3 The principal applicant, Mauricio Zambrano Castro, and his family, are Colombian citizens. They came to Canada in April 2009. Mr. Zam- brano Castro was a career officer in the Colombian Armed Forces. In 2000, he became a captain of a unit in Cali and was responsible for fighting the United Self-Defence Forces of Colombia (AUC), the country’s main paramilitary group. While carrying out this role, Mr. Zambrano Castro was twice discharged, first in 2001, although he was soon rein- stated, and again in 2003. He believes his discharge was a result of his actions arresting AUC leaders and members. In 2003, he filed a lawsuit Zambrano Castro v. Canada (MCI) Russel W. Zinn J. 53

challenging his last discharge. It was pending at the time of the Board hearing. 4 Mr. Zambrano Castro alleges that in 2004 he was twice threatened in phone calls telling him he would pay for what he had done in opposing the AUC. In December 2005, Mr. Zambrano Castro took his family to the United States and shortly thereafter applied for asylum. In order to secure documents, he returned to Colombia in June 2006 and stayed there for some three months. During his time in Colombia Mr. Zambrano Castro claims he received two more threatening phone calls, and was shot at. 5 The applicants’ US claim was rejected because, although Mr. Zam- brano Castro was found credible, it was found that he and his family were no longer at risk as the paramilitary had been officially disbanded in 2006. Their appeal to the Board of Immigration Appeals was rejected in April 2009. Because the applicants believed their lives remained in danger from the AUC, they came to Canada and claimed protection. 6 The Board rejected the applicants’ claims for refugee protection under both sections 96 and 97 of the Act based on its finding that parts of the evidence of Mr. Zambrano Castro was not credible. 7 The applicants raised a number of issues, relating to the Board’s credibility findings, the Board’s examination of the evidence and record, and the profile of Mr. Zambrano Castro. 8 In my view, the one issue raised by the applicants that has merit is its allegation that the Board erred in failing to examine Mr. Zambrano Cas- tro’s risk based on his profile. This issue is to be assessed on the reasonableness standard, and the decision of the Board is to be given deference: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.); N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62 (S.C.C.) at para 21-22. 9 If an applicant’s personal account of some events is not found credible but there is substantial documentary evidence attesting to the risk he or she may face based on his or her identity, then the Board is obliged to assess the claim. As the applicants submit, “refugee law does not require past persecution in order to establish future risk.” 10 The Board, in a very brief decision, found only limited aspects of the testimony of Mr. Zambrano Castro not to be credible; specifically, the threatening phone calls and him being shot. It appears to have accepted, and in fact there was abundant documentary evidence to support that he 54 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

was a member of the Colombian Armed Forces and was actively involved in fighting the AUC. The Board, however, gave no analysis of whether, having that profile, Mr. Zambrano Castro would be at risk if he returned to Colombia. Rather, the Board dismissed the applications under both sections 96 and 97 of the Act on the basis of credibility: When I consider the actions of the claimant to remain in Colombia for more than 2 years after his army discharge, his return to Colom- bia after being safely in the USA, his failure to spontaneously give evidence of the 2004 phone calls where he was threatened and his inconsistent evidence concerning the September 2006 shooting, I am satisfied on a balance of probabilities the claimant was not a credible witness. Hence, his claim fails pursuant to both sections 96 and 97 of the IRPA. 11 The identity of Mr. Zambrano Castro as a former army officer who worked against the AUC was not disputed and there was evidence before the Board that such persons are at risk in Colombia. As a result, and notwithstanding the negative credibility findings of the Board, Mr. Zam- brano Castro’s political or imputed political identity triggered a requirement for a proper risk analysis under section 97 based on the evidence before it. 12 Quite simply, the finding of a lack of credibility regarding some aspects of the evidence of Mr. Zambrano Castro did not provide a foundation to simply dispense with the claim under section 97 of the Act. 13 Neither party proposed a question for certification.

Judgment THIS COURT’S JUDGMENT is that this application is allowed, the applicants’ claim for protection is referred to a differently constituted Board for determination, and no question is certified. Application granted. Jakaj v. Canada (MCI) 55

[Indexed as: Jakaj v. Canada (Minister of Citizenship & Immigration)] Enerik Jakaj, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7209-11 2012 FC 677 Dani`ele Tremblay-Lamer J. Heard: May 30, 2012 Judgment: June 1, 2012* Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — Evi- dence –––– Refugee Protection Division of Immigration and Refugee Board (“Board”) determined that applicant was not Convention refugee or person in need of protection — Applicant brought application for judicial review of decision — Application granted — Board misconstrued evidence — It was open to Board to give little weight to letters and declarations provided by applicant, but it was required to explain its reasons for doing so — Same was true of email from Canadian Mission, which was put before Board by Minister of Public Safety and Emergency Preparedness — Further, even if each of documents was on its own insufficient to establish risk to applicant, officer was required to consider cumulative effect of various documents which all stated that there was blood feud against applicant’s family and that applicant was therefore at risk in Albania. Cases considered by Dani`ele Tremblay-Lamer J.: Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 1998 CarswellNat 1981, [1998] A.C.F. No. 1425, [1998] F.C.J. No. 1425 (Fed. T.D.) — considered Lubana v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 116, 26 Imm. L.R. (3d) 292, 228 F.T.R. 43, 2003 CarswellNat 262, 2003 CFPI 116, 2003 CarswellNat 2163, [2003] F.C.J. No. 162 (Fed. T.D.) — considered Mejia v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 898, 2009 FC 354, [2009] F.C.J. No. 438 (F.C.) — referred to

*A corrigendum issued by the court on October 29, 2012 has been incorporated herein. 56 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

APPLICATION by applicant for judicial review of decision of Immigration and Refugee Board which determined that applicant was not Convention refugee or person in need of protection.

J. Norris Ormston, for Applicant Christopher Crighton, for Respondent

Dani`ele Tremblay-Lamer J.:

1 This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the Refugee Protection Division of the Immigration and Refugee Board [the Board] dated July 26, 2011 in which the Board determined that the applicant is not a Convention refugee or person in need of protection.

Background Facts 2 The applicant is an Albanian citizen born on February 8, 1987. He claims refugee protection because of a blood feud against his family. 3 After the fall of the communist regime, the Albanian government transferred a parcel of land to the applicant’s grandfather. Prec Gjoni [Gjoni], who owns the land immediately to the north of that parcel, believed that the land was rightfully his. In 1999, Gjoni was arguing with the applicant’s uncle, Mark Jakaj, and Mark struck Gjoni. Gjoni and his family then declared a blood feud. Mark remains in Albania in hiding, but his son Edmond, the applicant’s cousin, made a successful refugee claim in Canada in 2005. Jakaj v. Canada (MCI) Dani`ele Tremblay-Lamer J. 57

4 The applicant’s father moved to Italy in the 1990s. Although he was initially there without status, the applicant’s father became an Italian permanent resident. The applicant, his mother, and his siblings joined his father in Italy in May of 2001. The applicant was 14 years old at the time. He began working in Italy when he was 16 years old. 5 In 2008, the applicant’s father learned that Gjoni knew where the family was in Italy and was threatening them, since Edmond was out of his reach in Canada. As the eldest son, the applicant was particularly at risk so the applicant’s father made arrangements for the applicant to travel to Canada. The applicant arrived in Canada on July 20, 2008, travelling on a false Italian passport. He claimed refugee protection on his arrival. 6 His refugee claim was heard on October 5, 2010 and June 28, 2011. The first hearing date was adjourned to address the question of the applicant’s status in Italy, as the Minister of Public Safety and Emergency Preparedness had intervened to argue that the applicant was excluded from refugee protection. After it was determined that the applicant’s status in Italy had lapsed, the Minister withdrew his submissions about exclusion.

The Decision Under Review 7 The Board found that the applicant had failed to credibly establish the existence of the blood feud. It based this determination on inconsistencies in the applicant’s evidence about how his father learned that Gjoni was looking for the applicant as well as the fact that the applicant’s family continues to live in the same location in Italy and has not had any problems with Gjoni since the applicant’s departure. The Board therefore determined that the applicant had fabricated the allegation that Gjoni found his family in Italy to further his refugee claim. 8 The Board also noted the applicant’s lack of knowledge about the land dispute, which it determined to be the cause of the blood feud. The Board further doubted the existence of the blood feud because of this lack of knowledge and the lack of evidence that Gjoni has formally disputed the land ownership. 9 Finally, the Board acknowledged the letter from the Peace Missiona- ries that confirms the existence of the feud, but gave it little weight because it was based only on interviews with the two families. The Board found that there was no independent and reliable evidence to confirm the existence of the blood feud. 58 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

10 The Board therefore found that the applicant was not a Convention refugee or person in need of protection.

Standard of Review 11 The Board’s determination was essentially one of credibility and will therefore be reviewed on the reasonableness standard (see Mejia v. Canada (Minister of Citizenship & Immigration), 2009 FC 354, 2009 CarswellNat 898 (F.C.) at para 29). Therefore, the decision will only be disturbed if it falls outside of “the range of acceptable outcomes that are defensible in respect of the facts and the law” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at para 74).

Is the Decision Reasonable? 12 The applicant submits that the decision is unreasonable because the Board failed to address all of the evidence before it. Specifically, he argues that the Board failed to consider an email sent by the Canadian Mis- sion in Rome which corroborated the existence of the blood feud and which referenced the Albanian police being aware of the feud. He further argues that the Board placed too much emphasis on minor inconsistencies in his evidence, citing Lubana v. Canada (Minister of Citizenship & Immigration), 2003 FCT 116, 228 F.T.R. 43 (Fed. T.D.) and Cepeda- Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (Fed. T.D.). He also notes that the Board made no mention of the letter from his Village Dignitary or to the National Reconciliation Committee [NRC], which was contacted by the Canadian Mission in Rome. 13 I agree. I find that the Board misconstrued the evidence that was before it to support the existence of the blood feud. The Board found that the letter from the Peace Missionaries was not sufficient evidence to establish the existence of a blood feud, but it made no mention of the letter from the Village Dignitary, the letter from the Chairman of the village, the declaration from the applicant’s father, or the letter from the All-Na- tion Association for the Integration of the Prisoners and Political Prose- cuted Persons, all of which attested to the existence to the blood feud and the risk to the applicant. Nor did the Board mention the email from the Canadian Mission, which indicated that the NRC corroborated the existence of the feud. Although the staff at the Canadian Mission did not Jakaj v. Canada (MCI) Dani`ele Tremblay-Lamer J. 59

contact the Albanian police directly, the email does suggest that the police in the village are aware of the blood feud. 14 At paragraph 16 of its decision, the Board stated that “The English version of the Peace Missionaries letter, attests [sic] to the existence of a blood feud, but other than interviewing both families, gives no other information as to why the author believes that a feud exists”. The applicant argues that there was evidence in the record that Peace Missionaries and other reconciliation committees do more than merely interview families and that, in any event, the Board’s experience with other refugee claimants alleging blood feuds is not sufficient to ground specialized knowledge. I note that a police report, which the Board suggested would have been more reliable evidence than the Peace Missionaries letter, would likely also be based on interviews with the families. In any event, given that the blood feud is essentially a private dispute between families, it is unclear what other evidence can be expected to attest to the existence of the blood feud. 15 It was open to the Board to give little weight to the letters and declarations provided by the applicant, but it was required to explain its reasons for doing so; the same is true of the email from the Canadian Mis- sion, which was put before the Board by the Minister of Public Safety and Emergency Preparedness. Further, even if each of these documents is on its own insufficient to establish a risk to the applicant, the Officer was required to consider the cumulative effect of these various documents which all state that there is a blood feud against the applicant’s family and that the applicant is therefore at risk in Albania. 16 Based on these omissions, I find that the Board misconstrued the evidence and that its decision must therefore be set aside. 17 I also accept the applicant’s submission that the Board’s credibility assessment is unreasonable because it was based on relatively minor inconsistencies. These inconsistencies arose with respect to two issues: how the applicant’s family learned of the threat in Italy and the basis for the land dispute. 18 However, the applicant’s evidence about how the family learned of the threat was not actually contradictory. The applicant testified that his aunt told the family of the threat and later that they learned of the threats by word of mouth. His PIF states that they were threatened indirectly. These three accounts may differ slightly, but they are easily reconciled with one another. I note as well that the applicant testified at the second day of the hearing that his father was told of the threats by his sister, the 60 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

applicant’s aunt, and several others. Although the Board suggested that the PIF should have referenced the applicant’s aunt if indeed she told the family about the threat, I am not prepared to accept this proposition. The applicant consistently stated that his father informed him of the threat, and these so-called inconsistencies relate to how his father learned of it. Given that the applicant was recounting what his father told him about how he had learned of the threat, I do not find these slight variations to be a reasonable basis for a negative credibility finding. 19 The other inconsistency concerned the details of the land dispute, which began in the 1990s when the applicant was a small child. Al- though the applicant’s evidence was somewhat inconsistent about the land dispute, I find this inconsistency to be peripheral. This inconsistency, either on its own or in combination with the variations in the applicant’s evidence about how the family learned of the threat, is not in my view sufficient to ground a negative credibility finding. 20 The Board essentially required a police report in order to find that the blood feud existed. I am not satisfied that this was reasonable, given the young age at which the applicant fled Albania and the fact that his uncle who remains there is in hiding. I also note that the applicant testified that there is only one policeman in his village, a fact which is supported by the wording of the email. In these circumstances, and given the evidence corroborating the existence of the blood feud that the Board failed to address, I find the decision to be unreasonable. 21 For these reasons, the application is allowed. The decision is set aside and the matter is remitted to a differently constituted panel of the Board.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is allowed. The decision is hereby set aside and the matter is remitted to a differently constituted panel of the Board. Application granted. Kabeya v. Canada (MCI) 61

[Indexed as: Kabeya v. Canada (Minister of Citizenship & Immigration)] Alain Mutshamba Kabeya, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5938-11 2012 FC 697 D.G. Near J. Heard: May 1, 2012 Judgment: June 6, 2012 Immigration and citizenship –––– Refugee protection — Removal — Pre- Removal Risk Assessment (PRRA) — Factors to be considered — New evidence –––– Applicant, who was citizen of Democratic Republic of Congo (DRC) arrived in Canada in September 2000 and made refugee claim — Applicant’s claim was based on his father’s involvement with opposition party as well as his own escape from forced recruitment for Congolese army — Applicant’s claim was dismissed by Refugee Protection Division (RPD) — As result of criminal convictions (including assault and breach of conditions) while in Canada, temporary suspension of removals in place for DRC did not apply to applicant — Applicant brought unsuccessful application for pre-removal risk assessment (PRRA) — Applicant brought application for judicial review of decision of PRRA officer — Application granted — PRRA officer failed to address fresh allegations raised by applicant regarding ethnic dimension of risk he would face in DRC — PRRA officer could conclude that these allegations could reasonably have been raised at refugee hearing, however, there should have been some indication in officer’s reasons that this was so — It was unclear whether PRRA officer truly considered or had reasons for disregarding these allegations — In light of PRRA officer’s misstatement of applicant’s geographic origins it was unclear whether proper consideration was given to whether regional instability had any direct implication on applicant’s situation. Cases considered by D.G. Near J.: Franco v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 1087, 2010 CarswellNat 5108, 2010 FC 1087, 2010 CarswellNat 4173, [2010] F.C.J. No. 1360, [2010] A.C.F. No. 1360 (F.C.) — referred to Hnatusko v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 21, 2010 FC 18, 2010 CarswellNat 620, 2010 CF 18, [2010] A.C.F. No. 21, [2010] F.C.J. No. 21 (F.C.) — referred to 62 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Kaybaki v. Canada (Solicitor General) (2004), 2004 CarswellNat 149, 2004 FC 32, 2004 CF 32, 2004 CarswellNat 5940, [2004] F.C.J. No. 27 (F.C.) — referred to Raza v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4905, 2007 FCA 385, 68 Admin. L.R. (4th) 225, 2007 CarswellNat 6368, 2007 CAF 385, 370 N.R. 344, 289 D.L.R. (4th) 675, [2007] F.C.J. No. 1632 (F.C.A.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 97 — referred to s. 113(a) — considered

APPLICATION for judicial review of decision of pre-removal risk assessment officer.

Prasanna Balasundaram, for Applicant Sybil Thompson, for Respondent

D.G. Near J.:

1 The Applicant, Alain Mutshamba Kabeya, seeks judicial review of a negative decision by a Pre-Removal Risk Assessment Officer (the PRRA Officer), dated June 29, 2011. The PRRA Officer found that there was no more than a mere possibility that the Applicant would be at risk of persecution in the Democratic Republic of the Congo (DRC) and no serious reasons to believe that he would be in danger of torture, a threat to his life or cruel and unusual treatment or punishment as required by sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).

I. Background 2 A citizen of the DRC, the Applicant arrived in Canada on September 5, 2000 and made a refugee claim on October 30, 2000. His claim was based on his father’s involvement with the opposition party, L’Union pour la D´emocractie et le Progr`es Social (UDPS) as well as his escape from forced recruitment for the Congolese army. However, the Refugee Protection Division of the Immigration and Refugee Board (the Board) rejected his claim on the basis of credibility concerns on August 22, 2002. Kabeya v. Canada (MCI) D.G. Near J. 63

3 As a result of criminal convictions (including assault and breach of conditions) while in Canada, the temporary suspension of removals in place for the DRC no longer applies to him. 4 The Applicant brought the application for this PRRA on July 27, 2007.

II. PRRA Officer’s Decision 5 In declining the application, the PRRA Officer noted that the Appli- cant was alleging the same fears as presented to the Board at his initial refugee hearing. The documents submitted relating to violence and the political situation in the DRC did not address the Applicant’s specific situation and did not allow the PRRA Officer to refute the Board’s findings regarding the credibility of his allegations. 6 The PRRA Officer concluded that “[a]lthough the applicant may face criminal acts in DRC, this reality applies to the entire population; it is not probative in the case of the applicant.” Moreover, the Applicant had not demonstrated his membership in those groups reported to be discriminated against in the country, nor did he “demonstrate that the situation for him is any more difficult than for the majority of Congolese.” 7 Acknowledging the temporary suspension of removals by the Gov- ernment of Canada, the PRRA Officer referred to the Applicant’s criminal convictions and inadmissibility. It also stated “this does not give rise to an inference that there are personalized hardships for the entire Con- golese population.” 8 Finally, the Applicant had not submitted any “personal and probative evidence” to support his allegations that his Canadian wife and son would be in danger in the DRC because of what occurred prior to his departure. The PRRA Officer was of the opinion that the same findings made against the Applicant would apply to his wife and son in the DRC.

III. Issues 9 The Applicant raises the following issues: (a) Did the PRRA Officer err in suggesting that the Applicant was alleging the same fears as presented to the Board? (b) Did the PRRA Officer err by misstating evidence related to the Applicant’s background that, in light of country documentation, was a key element of the decision? 64 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

IV. Standard of Review 10 In general, the standard of review applicable to the assessment of a PRRA Officer is reasonableness (see for example Hnatusko v. Canada (Minister of Citizenship & Immigration), 2010 FC 18, 2010 CarswellNat 21 (F.C.) at paras 25-26). Certain questions of law that arise may, however, warrant the correctness standard (see for example Franco v. Canada (Minister of Citizenship & Immigration), 2010 FC 1087, [2010] F.C.J. No. 1360 (F.C.) at paras 17-20).

V. Analysis 11 The Applicant contests the PRRA Officer’s suggestion that he was alleging the same fears as in his refugee claim before the Board. He insists that this is unreasonable because he raised fresh allegations regarding the ethnic dimension of the risk he would face in the DRC. 12 The Respondent maintains that the Applicant failed to establish a link between his allegations and information contained in the documentary evidence presented to the PRRA Officer. None of the documents related directly to his situation. As regards the specific allegations of the ethnic dimension of the conflict, the Respondent insists that it was reasonable to conclude that this information has already been considered because, for the purposes of a PRRA under subsection 113(a) of the IPRA, applicants can only present new evidence that arose after the rejection of their refugee claim or that was not reasonably available or could not reasonably have been expected to be presented in the circumstances. 13 While the Applicant could have been clearer in identifying the sup- posedly fresh allegations as to the ethnic dimension of the risk posed to him in the DRC, the additional written submissions before the PRRA Officer did refer to some ethnic-based issue based on the region where he was from and his membership in the Luba tribe. 14 The Respondent raises a valid consideration from the point of the view of the PRRA Officer that this aspect of the risk might have been reasonably available at the time of the hearing and should not necessarily be considered as part of the PRRA. There is, however, no indication from the PRRA Officer that this was the case. The Respondent is supple- menting the existing reasons. It may be open for the PRRA Officer to conclude that these allegations could reasonably have been raised at the Kabeya v. Canada (MCI) D.G. Near J. 65

refugee hearing and indicate that the purpose of the PRRA is not to have a second determination on the refugee claim (Kaybaki v. Canada (Solicitor General), 2004 FC 32, [2004] F.C.J. No. 27 (F.C.)). It should nonetheless provide some indication that this is the case. 15 As the decision stands, it is unclear whether the PRRA Officer truly considered or had reasons for disregarding such allegations as not being supported by the documents submitted. There are various questions that may arise regarding factors such as the credibility, relevance, newness and materiality of evidence submitted in support of a PRRA. According to Justice Karen Sharlow in Raza v. Canada (Minister of Citizenship & Immigration), 2007 FCA 385, [2007] F.C.J. No. 1632 (F.C.A.) at paras 13-15, “[w]hat is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated.” 16 The Applicant further submits that the PRRA Officer erred in noting that he was from Kinshasa as opposed to Lubumbashi in the eastern region. In many cases, such misstatements would not prove central to the determination or constitute a reviewable error. Given the nature of the PRRA Officer’s determination in this instance, however, it is a matter of some concern. 17 The determination was based primarily on the PRRA Officer’s insistence that the “applicant has failed to establish the presence of a personal risk to himself in the event that he is returned to DRC.” Of particular relevance is the passage where the PRRA Officer makes the misstatement: Although the applicant may potentially face criminal acts in DRC, this reality applies to the entire population; it is not probative in the case of the applicant. Moreover, the applicant is alleging that he comes from Kinshasa, and according to Freedom House, “aside from the east, most parts of the country were relatively stable in 2009.” 18 The Applicant’s evidence is nonetheless consistent that he comes from the Lubumbashi in the eastern region. It is also clear from the documentary evidence that particular issues have arisen in the eastern part of the country. The PRRA Officer should have at least considered whether the instability in the eastern region had any direct implications on the Applicant’s situation. In light of the above misstatement, it is unclear whether proper consideration took place in this regard. 66 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

VI. Conclusion 19 For these reasons, the application for judicial review is allowed. The matter is remitted back to the newly constituted panel of the Board for reconsideration.

Judgment THIS COURT’S JUDGMENT is that this judicial review is allowed and the matter is remitted back to a newly constituted panel of the Board for reconsideration. Application granted. Ghebremichael v. Canada (MCI) 67

[Indexed as: Ghebremichael v. Canada (Minister of Citizenship & Immigration)] Hagos Ghebremichael, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7302-11 2012 FC 873 Richard G. Mosley J. Heard: May 3, 2012 Judgment: July 11, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Evidence — Miscellane- ous –––– Applicant claimed to be citizen of Eritrea who went with his Somali mother to live in Djibouti following his Eritrean father’s death — Following his mother’s death, applicant claimed to have lived with paternal uncle, who abused him, and on streets of Djibouti — Applicant claimed to have been arrested several times by police for not having identification papers — Applicant fled to Norway in October 2008, where he made unsuccessful refugee claim — Appli- cant came to Canada with false passport in September 2010, where he was denied entry and detained due to lack of identification — While in detention applicant contacted his uncle in Djibouti to obtain identity documents — Birth certificate sent by uncle contained several spelling mistakes, including name of town — Refugee Protection Division (RPD) found that birth certificate was not genuine document and dismissed applicant’s claim — Applicant brought application for judicial review of decision of RPD — Application granted — RPD’s decision regarding identity was not reasonable, as it lacked justification, transparency and intelligibility with regards to facts of matter — Identity was quest of fact and standard of review was reasonableness — Although it was open to RPD to find that applicant’s identity had not been established, it had obligation to consider all evidence before it and it was not apparent from record that it did so — RPD’s analysis on whether there was reasonable explanation for lack of documentation and reasonable diligence in obtaining identity documents was clearly not based on evidence. Cases considered by Richard G. Mosley J.: Kalu v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 400, 2008 CarswellNat 1833, 2008 FC 400, 2008 CarswellNat 808, [2008] F.C.J. No. 488 (F.C.) — considered 68 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Lin v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 84, 2006 CarswellNat 111, [2006] F.C.J. No. 104 (F.C.) — considered Wang v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 969, 2011 CarswellNat 3011, 2011 CF 969, 100 Imm. L.R. (3d) 316, 2011 Car- swellNat 3729 (F.C.) — referred to

APPLICATION for judicial review of negative decision of Refugee Protection Division.

Paul VanderVennen, for Applicant Bridget O’Leary, for Respondent

Richard G. Mosley J.:

1 This case turns on the identity of the applicant. The Refugee Protec- tion Division of the Immigration and Refugee Board found that the applicant had failed to provide acceptable documentation to establish his identity and failed to provide a reasonable explanation for the lack of such documentation or the steps taken to obtain the evidence. 2 The sole issue is whether the board’s identity finding was reasonable. For the reasons that follow, I conclude that it was not and remit the matter for reconsideration by a differently constituted panel. 3 The applicant, Hagos Ghebremichael, claims to be a citizen of Eri- trea. He was born in Dire Dawa, Ethiopia, but is unsure of his nationality. He believes that his mother was Somali and his father Eritrean. He claims to be Eritrean by tradition through his father. Following his father’s death his mother took him to live in Djibouti with a paternal uncle. Following her death, he lived with that uncle, who abused him, and in the streets of Djibouti. He claims to have been arrested a number of times by the police for not having any identification papers. He would be detained and eventually released when neither the Ethiopian nor the Eritrean authorities would accept him. 4 When the applicant had saved sufficient funds, he travelled with the help of a smuggler to Sudan in May 2008, then to Libya, Italy and finally to Norway in October 2008. He claimed refugee status in Norway but his claim was denied. He then travelled to Canada and arrived on September 3, 2010. He claimed refugee status at the port of entry. He was denied entry and detained due to a lack of identification as he had traveled to Canada with a false passport. Ghebremichael v. Canada (MCI) Richard G. Mosley J. 69

5 While in detention, the applicant contacted his uncle in Djibouti to obtain identity documents. The uncle procured a birth certificate purport- edly issued by the Town Council of Dire Dawa. It was sent directly to Citizenship and Immigration Canada. The certificate, issued on August 15, 2008, indicates that the applicant is of Eritrean nationality. It contains a number of spelling mistakes, including the name of the town. 6 At the hearing before the Refugee Protection Division in August 2011, the Board Member found, on a balance of probabilities, that the birth certificate is not a genuine document. That finding is not disputed in these proceedings. The applicant says he does not know how his uncle acquired the document. 7 The Member noted that the applicant had amended his PIF to correct a mistake in the spelling of his mother’s name. The Member further noted that it was reasonable to expect the applicant to have documentation on his identity since it constituted the central issue of his refugee claim in Norway. 8 The Member did not refer to two additional documents submitted by the applicant: a letter from the Kingdom Priests International Church in Djibouti which referred to the applicant as having attended services and the affidavit of a Toronto resident who deposed that he had known the applicant’s father and knew his nationality. 9 Identity is a question of fact and thus attracts a standard of reasonableness: Wang v. Canada (Minister of Citizenship & Immigra- tion), 2011 FC 969 (F.C.) at para 22; and Lin v. Canada (Minister of Citizenship & Immigration), 2006 FC 84 (F.C.) at para 8. 10 It is apparent from the transcript of the Board hearing that the applicant had difficulty understanding questions put to him through an interpreter. The questions had to be repeated several times at his request which appears to have caused the Board Member some frustration. The interpreter explained that the applicant was merely asking for clarification. 11 When asked if he had tried to obtain other identity documents, the applicant testified that he went to the Eritrean Embassy and that they refused to help him. When the Member asked where the Eritrean Em- bassy was located the applicant said “can I see the address, it is in my pocket?” The Member did not respond to that but asked which city he went to. The applicant said “It is in Toronto”. The Member replied “In Toronto? Okay.” The Member drew from this an adverse inference that 70 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

the applicant did not attend the Eritrean Embassy, because if he had, he would have known its location. 12 I take judicial notice that the Eritrean Embassy is located in Ottawa. I expect the Member was also aware of that. It was unreasonable for the Member to have interpreted this brief exchange with the applicant as a failure to provide an explanation or to demonstrate reasonable diligence to obtain documentation. There is an Eritrean Consulate in Toronto and it is not surprising that the claimant, with little education, and testifying through an interpreter might describe it as an Embassy. Moreover, it is clear that the applicant had the address on his person and could have easily produced it at the hearing. He did not “volunteer” to get the information as the Member characterized this exchange in his reasons. 13 In Kalu v. Canada (Minister of Citizenship & Immigration), 2008 FC 400 (F.C.) at paragraph 12, Justice Dawson, then a member of the Fed- eral Court, stated that: In my view, the Board, as a specialized tribunal, failed to have proper regard to the evidence available to it to explain the difficulties inherent in obtaining identity documents for persons in the situation of Macauley and his designated representative. By failing to have that regard, the Board’s conclusions that no reasonable efforts had been made to obtain identity documents and that no reasonable explanation had been provided for that failure were made in reviewable error. 14 I have reached the same conclusion in this matter. Having never lived in a situation where he had legal status since leaving Ethiopia as a child, it would have been exceptionally difficult for the applicant to obtain official documents to prove who he is. The applicant had only the questioned birth certificate provided by a third party (his uncle) and a few other documents, including the affidavit, indicating that he is who he claims to be and that his father was indeed Eritrean. Even then, the question of his citizenship would be complex as Eritrea was not independent at the time of his father’s death and has refused to acknowledge the applicant. The Member gave these difficulties no apparent consideration. 15 The documents submitted by the applicant include UNHCR documents on the citizenship of persons in Ethiopia with parents from different origins, psychological and psychiatric reports on the applicant’s mental status and other documents corroborating the applicant’s seem- ingly consistent story. It is clear, considering the evidence before it, that the Board Member did not consider the particular situation of the appli- Ghebremichael v. Canada (MCI) Richard G. Mosley J. 71

cant in evaluating if he was reasonably diligent in seeking documentation and if he had a reasonable explanation for not having it. The transcript of the brief hearing also demonstrates that the Member did not make any real effort to consider the applicant’s circumstances. 16 Certain of the evidence put before the Board, such as the affidavit of Theodros Michael Bockru, does not appear to have been considered. The affidavit, if accepted, corroborates the applicant’s belief about his father’s origins. It was open to the Board to find this evidence inconclu- sive, but it is not mentioned in the reasons. As stated by Justice Layden- Stevenson, then a member of this Court, in Lin, above, at paragraph 14: ...It was unquestionably open to the RPD to determine that identity had not been established. However, to arrive at that conclusion, it must, first, have considered the totality of the evidence before it. It does not appear to me that the RPD did that. If it did, it is not evident from its reasons. In either case, the board’s decision is patently unreasonable because I am unable to conclude that it was made on the basis of the material that was before the RPD member. Consequently, the decision must be set aside. 17 As in Lin, it was unquestionably open to the Board to find that the applicant’s identity had not been established particularly in light of its reasonable finding that the birth certificate was false. Nonetheless, it had an obligation to consider all of the evidence before it and it is not apparent from the record that it did. In light of the cursory examination of the identity question disclosed by the transcript, this is not a case in which I am prepared to assume that the Board considered all of the evidence that it does not specifically refer to. Nor am I prepared to supplement the Board’s reasons by my own review of the record. 18 In the result, I do not find that the Board’s decision regarding identity is reasonable as it lacks justification, transparency and intelligibility with regards to the facts of the matter. The Board’s analysis on whether there was a reasonable explanation for the lack of documentation and reasonable diligence in obtaining identity documents is clearly not based on the evidence. 19 No questions were proposed for certification. 72 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Judgment THIS COURT’S JUDGMENT is that the application is granted and the matter is remitted to the Board for reconsideration by a differently constituted panel. No questions are certified. Application granted. Cervenakova v. Canada (MCI) 73

[Indexed as: Cervenakova v. Canada (Minister of Citizenship & Immigration)] Petra Cervenakova, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-6777-11 2012 FC 525 James Russell J. Heard: April 2, 2012 Judgment: May 3, 2012 Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Application of rules of evidence –––– Applicant was ethnic Roma citizen of Slovak Republic who came to Canada with her adoptive parents in October 2009 — Applicant claimed to have suffered persecution because of her Roma ethnicity and from her biological mother who tried to take her from her adoptive parents and force her to work as prostitute — Applicant attended at Refugee Protection Division (RPD) without counsel, who was unavailable, and sought to set date for hearing when her counsel would be available — RPD took position that because hearing had been set on peremptory basis, it had to proceed on that day — RPD dismissed applicant’s claim — Applicant brought application for judicial review of decision of RPD — Application granted — Applicant was deprived of procedural fairness — RPD erred in concluding that applicant did not have solicitor of record when there was evidence on record of RPD dealing with applicant’s counsel — When faced with RPD’s insistence that matter proceed, applicant had no choice but to try to represent herself and did poor job of it — On facts of present case it was clear that absence of counsel made significant difference to outcome of this matter — RPD ought to have given applicant opportunity post-hearing to have relevant document translated — RPD ought to have given applicant opportunity to retrace relevant documents that she claimed to have lost. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — General principles –––– Applicant was ethnic Roma citizen of Slovak Republic who came to Canada with her adoptive parents in Octo- ber 2009 — Applicant claimed to have suffered persecution because of her Roma ethnicity and from her biological mother who tried to take her from her adoptive parents and force her to work as prostitute — Applicant attended at Refugee Protection Division (RPD) without counsel, who was unavailable, and 74 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th) sought to set date for hearing when her counsel would be available — RPD took position that because hearing had been set on peremptory basis, it had to proceed on that day — RPD dismissed applicant’s claim — Applicant brought application for judicial review of decision of RPD — Application granted — RPD’s assessment of documentary package as part of state protection analysis gave rise to reviewable error — Given preponderance of evidence, it was unclear what supported RPD’s vague conclusions that there were signs of some success, or that situation had improved, and why this vagueness supported finding of adequate state protection — Very little was referred to that suggested that Slovak Repub- lic was willing or able to protect Roma people from widespread violence and mistreatment that RPD acknowledged was still rampant. Cases considered by James Russell J.: Aguebor v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 303, (sub nom. Aguebor v. Ministre de l’Emploi & de l’Immigration) 160 N.R. 315, [1993] F.C.J. No. 732 (Fed. C.A.) — considered Ameir v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 876, 2005 CarswellNat 1722, 47 Imm. L.R. (3d) 169, 2005 CF 876, 2005 Car- swellNat 4711, [2005] F.C.J. No. 1094 (F.C.) — considered Attakora v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 168, 1989 CarswellNat 736, [1989] F.C.J. No. 444 (Fed. C.A.) — considered C.U.P.E. v. Ontario (Minister of Labour) (2003), 2003 CarswellOnt 1803, 2003 SCC 29, 2003 CarswellOnt 1770, 2003 C.L.L.C. 220-040, [2003] 1 S.C.R. 539, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 173 O.A.C. 38, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 66 O.R. (3d) 735 (note), 226 D.L.R. (4th) 193, (sub nom. Canadian Union of Public Employees v. Ontario (Minister of Labour)) 304 N.R. 76, 50 Admin. L.R. (3d) 1, REJB 2003-41592, [2003] S.C.J. No. 28 (S.C.C.) — considered Canada (Minister of Employment & Immigration) v. Dan-Ash (1988), 5 Imm. L.R. (2d) 78, 93 N.R. 33, 1988 CarswellNat 24, [1988] F.C.J. No. 571 (Fed. C.A.) — considered Carrillo v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FCA 94, 69 Imm. L.R. (3d) 309, 2008 CAF 94, (sub nom. Flores Carrillo v. Canada (Minister of Citizenship & Immigration)) [2008] 4 F.C.R. 636, 2008 CarswellNat 1953, 2008 CarswellNat 605, 377 N.R. 393, [2008] F.C.J. No. 399 (F.C.A.) — considered Chaves v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 333, 2005 FC 193, 45 Imm. L.R. (3d) 58, 2005 CF 193, 2005 Car- swellNat 2493, [2005] F.C.J. No. 232 (F.C.) — considered Cervenakova v. Canada (MCI) 75

Da Costa Soares v. Canada (Minister of Citizenship & Immigration) (2007), 2007 CF 190, 2007 CarswellNat 5501, 2007 FC 190, 2007 CarswellNat 372, 308 F.T.R. 280 (Eng.), [2007] F.C.J. No. 254 (F.C.) — referred to Dominguez Hernandez c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2007), 2007 CarswellNat 4969, 2007 CF 1211, 2007 Car- swellNat 4318, 2007 FC 1211, [2007] F.C.J. No. 1563 (F.C.) — considered Elmi v. Canada (Minister of Citizenship & Immigration) (2008), 2008 CF 773, 2008 CarswellNat 2823, 2008 CarswellNat 2042, 2008 FC 773 (F.C.) — considered Golbom v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 2014, 2010 FC 640, 2010 CarswellNat 3407, 2010 CF 640, [2010] F.C.J. No. 855, [2010] A.C.F. No. 855 (F.C.) — referred to Ha v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FCA 49, 2004 CarswellNat 247, 236 D.L.R. (4th) 485, 316 N.R. 299, [2004] 3 F.C.R. 195, 34 Imm. L.R. (3d) 157, 247 F.T.R. 314 (note), 11 Admin. L.R. (4th) 306, 2004 CarswellNat 5581, [2004] F.C.J. No. 174 (F.C.A.) — referred to Hilo v. Canada (Minister of Employment & Immigration) (1991), 15 Imm. L.R. (2d) 199, 130 N.R. 236, 1991 CarswellNat 96, [1991] F.C.J. No. 228 (Fed. C.A.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Li v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 196, 2011 CF 196, 2011 CarswellNat 1257, 2011 CarswellNat 387 (F.C.) — referred to Lozada v. Canada (Minister of Citizenship & Immigration) (2008), 2008 Car- swellNat 823, 2008 FC 397, [2008] F.C.J. No. 492 (F.C.) — considered Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, 1979 CarswellNat 168, 1979 CarswellNat 168F, 31 N.R. 34, [1979] F.C.J. No. 248 (Fed. C.A.) — referred to Meza Varela v. Canada (Minister of Citizenship & Immigration) (2011), 2011 CarswellNat 4927, 2011 FC 1364, 2011 CF 1364, 2011 CarswellNat 5374 (F.C.) — considered Mohacsi v. Canada (Minister of Citizenship & Immigration) (2003), 2003 FCT 429, 2003 CarswellNat 941, 231 F.T.R. 276, 2003 CarswellNat 4886, [2003] 4 F.C. 771, 27 Imm. L.R. (3d) 91, 2003 CFPI 429, [2003] F.C.J. No. 586 (Fed. T.D.) — considered Molnar v. Canada (Minister of Citizenship & Immigration) (2002), 2002 Car- swellNat 2713, 2002 FCT 1081, 2002 CarswellNat 4037, 2002 CFPI 1081, [2003] 2 F.C. 339, [2002] F.C.J. No. 1425 (Fed. T.D.) — considered 76 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Quichindo c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2002), 2002 CarswellNat 1586, 2002 FCT 350, 2002 CFPI 350, 2002 CarswellNat 674, [2002] F.C.J. No. 463 (Fed. T.D.) — referred to R. v. B. (G.D.) (2000), [2000] 8 W.W.R. 193, 81 Alta. L.R. (3d) 1, 2000 SCC 22, 2000 CarswellAlta 348, 2000 CarswellAlta 349, 143 C.C.C. (3d) 289, 261 A.R. 1, 224 W.A.C. 1, 32 C.R. (5th) 207, 184 D.L.R. (4th) 577, [2000] 1 S.C.R. 520, 253 N.R. 201, [2000] S.C.J. No. 22 (S.C.C.) — considered Shirvan v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 3744, 2005 FC 1509, 2005 CarswellNat 5233, 2005 CF 1509, [2005] F.C.J. No. 1864, [2005] A.C.F. No. 1864 (F.C.) — considered Shirwa v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 183, 1993 CarswellNat 1360, 23 Imm. L.R. (2d) 123, 22 Admin. L.R. (2d) 220, [1994] 2 F.C. 51, 71 F.T.R. 136, [1993] F.C.J. No. 1345 (Fed. T.D.) — considered Siloch v. Canada (Minister of Employment & Immigration) (1993), 1993 Car- swellNat 56, 10 Admin. L.R. (2d) 285, 18 Imm. L.R. (2d) 239, 151 N.R. 76, [1993] F.C.J. No. 10 (Fed. C.A.) — referred to Sketchley v. Canada (Attorney General) (2005), 2006 C.L.L.C. 230-002, 2005 CAF 404, 2005 CarswellNat 5119, [2006] 3 F.C.R. 392, 2005 FCA 404, 2005 CarswellNat 4194, 344 N.R. 257, 44 Admin. L.R. (4th) 4, 56 C.H.R.R. D/490, 263 D.L.R. (4th) 113, [2005] F.C.J. No. 2056 (F.C.A.) — considered Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada (Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — considered Wu v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 2913, 2009 FC 929, 2009 CarswellNat 5423, 2009 CF 929, [2009] F.C.J. No. 1143 (F.C.) — considered Ye v. Canada (Minister of Employment & Immigration) (1992), 1992 Car- swellNat 1112, [1992] F.C.J. No. 584 (Fed. C.A.) — referred to Cervenakova v. Canada (MCI) James Russell J. 77

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to s. 96 — considered s. 96(a) — considered s. 96 “r´efugi´e” — considered s. 97 — considered s. 97(1) — considered Rules considered: Refugee Protection Division Rules, SOR/2002-228 R. 25(1) — considered

APPLICATION for judicial review of decision of Refugee Protection Division dismissing applicant’s claim.

Rocco Galati, for Applicant Laoura Christodoulides, for Respondent

James Russell J.: Introduction 1 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 31 August 2011 (Decision), which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

Background 2 The Applicant is a citizen of the Slovak Republic who seeks Canada’s protection from persecution based on her Roma ethnicity. As an adoptive child, the Applicant also seeks protection from her biological family (Bi- ological Family) who, she says threatened and beat her to bring her back to them. 3 The Applicant came to Canada on 19 October 2009 with her adoptive parents, Gejza Cervenak (Gejza), her adoptive father, and Kvetoslava Cervenakova (Kvetoslava), her adoptive mother. All three (Adoptive Family) claimed protection from persecution related to their Roma ethnicity. After they arrived in Canada, the Applicant and her parents each filed a Personal Information Form (PIF); they all adopted a com- 78 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

mon narrative, written by Gejza (Original Narrative). In the Original Narrative, Gejza said skinheads attacked their home in the Slovak Re- public approximately three times a month. The skinheads would break windows, throw rocks, and shout insults. 4 In addition to the Original Narrative, the Applicant also answered a number of questions on the PIF Questionnaire. She said her only family members were her adoptive parents. The Applicant also indicated in the PIF Questionnaire that she was unemployed between October 1999 and October 2009, and she had lived in the Slovak Republic from birth to October 2009. 5 The Applicant filed an amended PIF Narrative (Amended Narrative) on 16 November 2010. In this narrative, she said she was working at a factory owned by Samsung (Samsung Factory) in 2007. While she was working at the Samsung Factory, she met a woman who claimed to be her biological aunt. Later, the woman brought several other people to the Applicant’s room in the factory; these people said the Applicant would be coming home with them. The Applicant went to her adoptive parents’ home but did not tell them what had happened. 6 Later that night, the Applicant says a woman claiming to be her biological mother (Biological Mother) telephoned the Adoptive Family’s home. The Biological Mother swore at Kvetoslava and said she was coming for the Applicant. Some time later, some people claiming to be the Applicant’s Biological Family attacked Gjezsa. They screamed at him, pushed him into a wall and tried to take the Applicant by force. The Applicant successfully resisted and called the police. The police said the families should work things out on their own. 7 The Applicant says her biological sister sent her a text message saying the Biological Family wanted her to work as a prostitute. The Appli- cant was so upset by this she attempted suicide. She took pills, but awoke the next morning in hospital. She regretted her suicide attempt and decided to resist the Biological Family’s attempts to recruit her into prostitution. The Applicant tried to find work in the Slovak Republic but could not find a job because she is Roma. She eventually began working in a flea market in the Czech Republic (Flea Market) as a vendor. 8 One day, while the Applicant was working in the Flea Market, a group of neo-Nazi skinheads attacked the Flea Market (Flea Market At- tack). One of the skinheads tossed the Applicant to the ground and kicked her into unconsciousness. This attack gave the Applicant a throm- bosis in her foot. Cervenakova v. Canada (MCI) James Russell J. 79

9 The Applicant went to hospital in Bratislava, Slovakia, to be treated for the injuries she suffered in the attack on the Flea Market. She was later transferred to a hospital in Presov, Slovak Republic. In this hospital, the Applicant says the nurses discriminated against her because she is Roma. They would not help her to get food, even though she could not walk. The nurses also made her bandage her own wounds and urinate in a bucket. After experiencing this discrimination, the Applicant felt she could no longer live in the Slovak Republic. She also continued to fear her Biological Family, because they kept threatening to burn down her home and insulting her Adoptive Family. The Adoptive Family decided to come to Canada and arrived on 19 October 2009. They claimed protection on 21 October 2009. 10 Kvetoslava and Gjezsa withdrew their claims for protection on 12 July 2011. The RPD notified the Applicant on 9 June 2009 that it would hold a scheduling conference for her claim on 27 June 2011. This first notice informed her that, if she had counsel, she should appear with a letter from counsel confirming representation and giving six available dates for a hearing into the merits of her claim. The RPD gave the Appli- cant a Notice to Appear for a second hearing on 29 June 2011, which contained the same instructions as the first Notice to Appeal. The second notice instructed the Applicant to appear for a scheduling conference on 18 July 2011 (Scheduling Conference). 11 George Kubes (Mr. Kubes) — a lawyer practicing in Toronto — says in a letter faxed to Applicant’s current counsel that the Applicant contacted him before the Scheduling Conference to ask him to represent her. Mr. Kubes says he instructed the Applicant to attend the Scheduling Conference and gave her six dates on which he was available to proceed with the hearing. He also says he told the Applicant to contact him if the dates he provided her where unsatisfactory to the RPD so he could arrange a hearing date when he could represent her. According to Mr. Kubes, he received no further communication from the Applicant. After the Gejza and Kvetoslava abandoned their claims, Mr. Kubes faxed the RPD an amended PIF narrative which contained events unique to her claim (Amended Narrative). 12 The RPD conducted a hearing into the merits of the Applicant’s claim on 30 August 2011 (RPD Hearing). The Applicant was unrepresented at the hearing, though she told the RPD that Mr. Kubes was her lawyer. She also said she had tried to contact Mr. Kubes but he had not responded to her and that he had given her a number of dates, which she presented at 80 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

the scheduling conference. The RPD said its records showed the Appli- cant had attended the scheduling conference and the Applicant confirmed that this was so. However, the RPD also said its records showed that she was unrepresented. The RPD screening form, which a Statement of Ser- vice indicates the RPD served on the Applicant on 18 August 2011, indicates the Applicant did not have counsel at that time. 13 The RPD said that, because the Applicant’s hearing was set on a peremptory basis, it had to proceed on that day. It noted that Mr. Kubes had not provided anything to say he represented the Applicant. The RPD also noted he had not indicated he would not be able to attend the hearing. The Applicant said she was told at the Scheduling Conference she could represent herself and she would like to proceed as a self-represented claimant. Accordingly, the RPD conducted the hearing with the Appli- cant representing herself. 14 Mr. Kubes letter says the Roma Advocacy Center in Toronto contacted him on 26 September 2011 and told him the Applicant had attended her refugee hearing without representation and had received a negative Decision. Mr. Kubes then contacted the Applicant and she said the RPD had rejected the six dates he proposed and scheduled the hearing for 30 August 2011. Mr. Kubes’s letter says the Applicant told him she assumed he would appear for the RPD Hearing because she believed the RPD would advise him of the new hearing date. 15 After conducting the RPD Hearing, the RPD came to its Decision on 31 August 2011 and notified the Applicant on 9 September 2011.

Decision Under Review 16 The RPD found the Applicant was neither a Convention refugee under section 96 of the Act, nor was she a person in need of protection under section 97 of the Act. It based these findings on its conclusions the Applicant had not rebutted the presumption of state protection and was not a credible witness.

Preliminary Issue — Applicant Unrepresented 17 Before analysing the merits of her claim, the RPD addressed the Ap- plicant’s lack of representation at the RPD Hearing. It noted she said she had attempted to contact Mr. Kubes and he had not returned her calls. The RPD also noted that Mr. Kubes had not communicated with it and the Applicant had said she was ready to proceed without counsel. The Cervenakova v. Canada (MCI) James Russell J. 81

RPD said it had explained the issues in the case to the Applicant before it proceeded with the RPD Hearing.

Credibility 18 The RPD found the Applicant was not a credible or trustworthy witness because of discrepancies between her PIF Questionnaire, Amended Narrative, and oral testimony at the RPD Hearing. It first noted that the testimony of a refugee claimant is presumed true (see Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.)) and that contradictions and implausiblities in testimony, including omissions, are a proper basis for finding a claimant is not credible. 19 The RPD found the answers the Applicant gave to the questions in her PIF Questionnaire were inconsistent with the Amended Narrative, so it drew a negative inference as to her credibility. In her oral testimony and Amended Narrative, she said she was working at the Samsung Fac- tory when her biological aunt approached her to tell her about her Bio- logical Family. In the PIF Questionnaire, she said she was unemployed between 1999 and 2009 and her only relatives were Kvetoslava and Gjezsa. The Applicant also said in the PIF Questionnaire that she had lived in Tichy Potok, Slovak Republic between October 1999 and Octo- ber 2009. The RPD noted the Applicant said in the Amended Narrative that her biological sister had sent her a text message and that she lived in Galanta, Slovak Republic while she worked at the Samsung Factory. 20 Although it gave the Applicant the opportunity to explain the discrepancies between the Amended Narrative, the PIF Questionnaire and her oral testimony at the RPD Hearing, the RPD rejected the explanations she offered. She testified she and her parents did not know how to fill out the PIFs and relied on their interpreter in this regard. The Applicant also said she wanted nothing more to do with her adoptive parents after they withdrew her claim. The RPD noted the Applicant had declared her PIF was true, complete, and correct and had been interpreted to her; she confirmed this at the start of the RPD hearing. The RPD found the Appli- cant’s explanations unsatisfactory and the inconsistencies in her testimony meant she was not credible. It also found the Applicant fabricated the story about her Biological Family. 21 The RPD also found the Applicant’s story of being attacked in the Flea Market was not plausible. It reviewed the Applicant’s oral testimony, noting that she could not recall the months in 2009 when she 82 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

worked at the Flea Market in the Czech Republic. The RPD found her testimony on this point was evasive because she could not remember in which months she worked at the Flea Market. Also, the Applicant’s story did not accord with common sense because the attack would have af- fected other vendors who would have called the police. 22 The RPD also found the Applicant not credible because her PIF Questionnaire did not show she ever worked in the Czech Republic. It said her answers to its questions about her travel history, employment, and residence in the Czech Republic were evasive. The RPD made a negative credibility finding based on her evasiveness, the inconsistencies between the PIF and Amended Narrative, and the implausibility of the Flea Market Attack. It also found her documentary evidence was not reliable or trustworthy.

Documentary Evidence 23 The RPD found the Applicant did not provide documentary evidence to show she had been in hospital or had worked in the Samsung Factory. It rejected the Applicant’s explanation for not having medical documents — that her doctor had deleted her records — finding that she could have requested documents from the hospitals where she had been treated. The RPD also rejected her explanation for not having documents — that she left them on the streetcar — noting that she had the rest of her documents in a file folder at the hearing. The RPD found the Ap- plicant would not have left some documents on the streetcar while keep- ing others. The RPD also found the lack of documents was moot in any event, because the Applicant had not had them translated into English. Without English translations, the RPD would not have been able to consider her documents. 24 The RPD referred to the UNHCR Handbook on Procedures and Cri- teria for Establishing Refugee Status which says After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. [...] it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the ex- aminer is satisfied as to the applicant’s general credibility. The appli- Cervenakova v. Canada (MCI) James Russell J. 83

cant’s statements must be coherent and plausible, and must not run counter to generally known facts. 25 The RPD found it could not give the Applicant the benefit of the doubt because she had not shown that she made genuine efforts to provide evidence about important aspects of her claim. She had provided vague and evasive testimony and was not a credible or trustworthy witness.

State Protection 26 The RPD also found the Applicant had not rebutted the presumption of state protection. The RPD reviewed the law on state protection, noting that Ward v. Canada (Minister of Employment & Immigration), [1993] 2 S.C.R. 689 (S.C.C.) establishes a presumption that states are able to protect their citizens and that this presumption can only be rebutted with reliable and probative evidence of the states’ inability to protect. Further, the RPD noted that local failures do not show the state is unable to protect and the burden on claimants to show they have exhausted all avenues of protection will be heavier in states which are more democratic. 27 The RPD found the Applicant had only contacted police in the Slovak Republic for help once: when her Biological Family tried to take her from her home and pushed Gjezsa into a wall. The RPD noted it found this narrative not credible. 28 Based on a report from the Department of State in the United States of America — Country Reports on Human Rights Practices for 2010: Slovak Republic (DOS Report), the RPD also reviewed documentary evidence before it on state protection. It found Roma in the Slovak Republic generally face discrimination. Other information in the RPD’s National Documentation Package for the Slovak Republic showed neo-Nazi groups harass Roma people. The RPD found, however, that a legal framework existed in the Slovak Republic which allowed the Slovakian government to combat these problems. The RPD pointed to the Slovak Republic Government’s Third Report on the Implementation of the Framework Convention for the Protection of National Minorities in the Slovak Republic (Minorities Report) and found this established the Ap- plicant had several avenues available to her to seek protection. 29 The RPD also found the documentary evidence indicated the police response in the Slovak Republic to racially motivated crimes has improved. It related this finding to the Applicant’s testimony that the police did not come to her aid when she called them after her Biological Family 84 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

attacked her and Gjezsa. The RPD also found the Minorities Report indicated that sentences in the Slovak Republic had generally increased where people were convicted of racially motivated crimes. Further, the Minorities Report showed it is easer now than in the past for people like the Applicant to complain about unfair dealings with the police on the basis of ethnicity. 30 The RPD concluded that authorities in the Slovak Republic are taking serious action to reduce harassment and discrimination faced by Roma people. It also found the Applicant had produced no clear and convincing evidence that state protection was inadequate. The RPD also noted its earlier finding that the Applicant was not credible or trustworthy, and found she had not shown state protection would not be reasonably forthcoming or that it was objectively unreasonable for her to seek that protection. 31 Given its finding on state protection, the RPD found the Applicant was not a person in need of protection or a Convention refugee.

Statutory Provisions 32 The following provisions of the Act are applicable in this proceeding: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; [...] Person in Need of Protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, Cervenakova v. Canada (MCI) James Russell J. 85

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care [...] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; [...] Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes in- ternationales — et inhérents a` celles-ci ou occasionnés par elles, 86 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. [...]

Issues 33 The Applicant raises the following issues in this application: a. Whether the RPD breached her right to procedural fairness by holding its hearing without her counsel; b. Whether her previous counsel’s incompetence breached her right to procedural fairness; c. Whether the RPD misapplied the test for state protection; d. Whether the RPD’s state protection finding was reasonable; e. Whether the RPD’s credibility finding was unreasonable.

Standard of Review 34 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 35 It is well established that the right to counsel at an RPD hearing is an issue of procedural fairness (see Golbom v. Canada (Minister of Citizenship & Immigration), 2010 FC 640 (F.C.) at paragraph 11, Li v. Canada (Minister of Citizenship & Immigration), 2011 FC 196 (F.C.) at paragraph 11, and Ha v. Canada (Minister of Citizenship & Immigra- tion), 2004 FCA 49 (F.C.A.) at paragraph 45). In C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (S.C.C.), the Supreme Court of Can- ada held at paragraph 100 that “It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Further, the Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 (F.C.A.) at paragraph 53 held that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this Cervenakova v. Canada (MCI) James Russell J. 87

duty.” The standard of review on the first two issues in this case is correctness. 36 The third issue challenges the RPD’s application of a legal test to the facts before it. This is a question of mixed fact and law to which the applicable standard of review is reasonableness (see Dunsmuir, above, at paragraph 51). 37 In Carrillo v. Canada (Minister of Citizenship & Immigration), 2008 FCA 94 (F.C.A.), the Federal Court of Appeal held at paragraph 36 that the standard of review on a state protection finding is reasonableness. This approach was followed by Justice Leonard Mandamin in Lozada v. Canada (Minister of Citizenship & Immigration), 2008 FC 397 (F.C.), at paragraph 17. Further, in Chaves v. Canada (Minister of Citizenship & Immigration), 2005 FC 193 (F.C.), Justice Dani`ele Tremblay-Lamer held at paragraph that the standard of review on a state protection finding is reasonableness. The standard of review on the fourth issue is reasonableness. 38 In Aguebor v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 732 (Fed. C.A.) the Federal Court of Appeal held that the standard of review on a credibility finding is reasonableness. Further, in Elmi v. Canada (Minister of Citizenship & Immigration), 2008 FC 773 (F.C.), at paragraph 21, Justice Max Teitelbaum held that findings of credibility are central to the RPD’s finding of fact and are therefore to be evaluated on a standard of review of reasonableness. Finally, in Wu v. Canada (Minister of Citizenship & Immigration), 2009 FC 929 (F.C.), Justice Michael Kelen held at paragraph 17 that the standard of review on a credibility determination is reasonableness. The standard of review on the fifth issue is reasonableness. 39 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” 88 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Arguments The Applicant Breach of Procedural Fairness 40 The Applicant says her right to procedural fairness was breached when the RPD did not inquire with Mr. Kubes to determine if he was actually representing her. She also says Mr. Kubes breached her right to procedural fairness by failing to attend the RPD hearing. The Applicant points to Shirwa v. Canada (Minister of Employment & Immigration) (1993), [1994] 2 F.C. 51 (Fed. T.D.), which she says establishes counsel’s incompetence can lead to a breach of procedural fairness where that incompetence results in a complete denial of the opportunity for a hearing (see paragraph 11).

Unreasonable Credibility Finding 41 The Applicant also says the RPD’s credibility finding based on the inconsistencies between her Amended Narrative and the PIF Question- naire was unreasonable. She says her Amended Narrative went beyond the Original Narrative and added details of the persecution she had personally suffered. The Applicant relies on Ameir v. Canada (Minister of Citizenship & Immigration), 2005 FC 876 (F.C.) at paragraph 21, where Justice Edmond Blanchard held In my view the Board’s credibility finding is patently unreasonable. Subsection 6(4) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules), affords the parties the opportunity to amend their PIF. In the circumstances, it was not open to the Board to find as it did based on the Applicant’s “overall testimony”. A plausible explanation for the amendment was offered by the Applicant and the opportunity to amend a PIF is provided for in the Rules. The Board gave no valid reason to impugn the Applicant’s credibility on these facts. The credibility finding is patently unreasonable.

State Protection Finding Unreasonable The RPD Misapplied the Test for State Protection 42 The RPD misapplied the test for state protection which the Supreme Court of Canada set out in Ward, above. The RPD relied on institutional structures in the Slovak Republic for its finding that she had not rebutted the presumption of state protection. The Applicant points to Mohacsi v. Cervenakova v. Canada (MCI) James Russell J. 89

Canada (Minister of Citizenship & Immigration), 2003 FCT 429 (Fed. T.D.), where Justice Luc Martineau held as follows at paragraph 56: It is also wrong in law for the Board to adopt a “systemic” approach which may have the net effect of denying individual refugee claims on the sole ground that the documentary evidence generally shows the Hungarian government is making some efforts to protect Romas from persecution or discrimination by police authorities, housing authorities and other groups that have historically persecuted them. The existence of anti-discrimination provisions in itself is not proof that state protection is available in practice: “Ability of a state to protect must be seen to comprehend not only the existence of an effective legislative and procedural framework but the capacity and the will to effectively implement that framework” (Elcock v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116 at 121). Hungary is now considered a democratic nation which normally would be considered as being able to provide state protection to all its citizens (Ward, supra). Unfortunately, there are still doubts concerning the effectiveness of the means taken by the government to reach this goal. Therefore, a “reality check” with the claimants’ own experiences appears necessary in all cases. 43 The RPD should have considered the Applicant’s actual experience in seeking state protection. Instead, it simply looked at the institutional framework present in the Slovak Republic. The Applicant also points to Dominguez Hernandez c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2007 FC 1211 (F.C.), where Justice Michel Shore found in “the case before us, the state did not demonstrate that it had the capacity to implement a framework for the applicants’ protection. It must be reiterated that, with respect to ‘state protection’, each case turns on its own facts” (see paragraph 26). [Emphasis in original].

The RPD Ignored Evidence 44 The RPD’s state protection finding was also unreasonable because it ignored evidence which showed state protection in the Slovak Republic was ineffective. The Applicant says the RPD ignored the DOS Report and a report from Amnesty International — the Annual Report 2011: Slovakia.

Discrimination vs. Persecution 45 The RPD’s state protection finding was also unreasonable because it found the acts the Applicant suffered were discrimination and not persecution. The RPD ought to have found the Applicant’s experiences were 90 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

persecution because acts of criminal violence always amount to persecution. The state protection finding was also unreasonable because it found the Applicant should have gone to an agency other than the police for help. She notes that Justice Tremblay- Lamer held in Molnar v. Canada (Minister of Citizenship & Immigration), 2002 FCT 1081 (Fed. T.D.) at paragraphs 23 and 24 held as follows: In my opinion, the Board erred in imposing on the applicants the burden of seeking redress from agencies other than the police. The purpose of the police is to protect the citizens. If they refuse or are unwilling to act, this Court has indicated that there is no obligation on an individual to seek counselling, legal advice, or assistance from human rights agencies. 46 As a victim of persecution, not discrimination, the Applicant should not have been required to go beyond the police in seeking protection.

Plausibility Finding Unreasonable 47 The Applicant also says the RPD’s credibility finding was unreasonable because it was based on an unreasonable finding that her story was implausible. She says this implausibility finding was based on an irrelevant factor: the availability of state protection in the Czech Republic. The RPD found her story of the Flea Market Attack was implausible because it thought other vendors would have called the police if the attack had actually occurred. The Applicant says the RPD should not have considered the police response to the attack in the Flea Market because this event occurred in the Czech Republic. The Applicant claims protection against the Slovak Republic, so the police response to the Flea Market Attack is irrelevant. 48 The RPD also said its implausibility finding was based on common sense, but the Applicant says common sense does not lead to the conclusion reached by the RPD. She also says the RPD unreasonably based this implausibility finding on extrinsic evidence, rather than inconsistencies internal to her story. This is a reversible error which calls for the Court’s intervention. See Ye v. Canada (Minister of Employment & Immigra- tion), [1992] F.C.J. No. 584 (Fed. C.A.).

Microscopic Evaluation of the Evidence 49 The RPD’s credibility finding was also unreasonable because it was based on a selective and microscopic analysis of the evidence. The Ap- plicant relies on the Federal Court of Appeal’s judgment on Attakora v. Cervenakova v. Canada (MCI) James Russell J. 91

Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 444 (Fed. C.A.), where it held the RPD should “not be over-vigilant in its microscopic examination of the evidence.” She also points to Hilo v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 228 (Fed. C.A.), where the Federal Court of Appeal held that “selective treatment in respect of various segments of the appellant’s testimony is not calculated to enhance one’s confidence in the Board’s assessment of the appellant’s credibility.”

The Respondent No Breach of Procedural Fairness 50 The Respondent says the Applicant’s right to procedural fairness was not violated by her previous counsel’s incompetence. She has not shown how the outcome of her claim would have been different had she been represented before the RPD, so even if she was denied the right to counsel, the Decision should stand. The Respondent points to R. v. B. (G.D.), 2000 SCC 22 (S.C.C.) where the Supreme Court of Canada held that for “an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.” 51 The Applicant has also not met her obligation to notify her previous counsel of her allegations against him. Since she has not met this obligation, established in Shirvan v. Canada (Minister of Citizenship & Immi- gration), 2005 FC 1509 (F.C.), the Applicant cannot succeed in judicial review by claiming previous counsel was incompetent. 52 The Respondent further points out that the Applicant was not represented because of her own error. Mr. Kubes gave the Applicant dates at which he could attend hearings, but she did not contact him when the RPD did not find any of these dates acceptable. The Applicant also agreed to proceed without counsel when it became apparent Mr. Kubes would not be attending the hearing. The Applicant should be held to this choice. 53 The Applicant has not shown how the outcome would have been different had she been represented. Hers is not a case where counsel’s incompetence is clearly established and undermined the outcome of the hearing. Representation would not have changed the fact there were clear discrepancies and omissions in her evidence or the RPD’s determinative finding on state protection. 92 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Credibility Findings Reasonable 54 The RPD’s credibility finding was reasonably based on inconsistencies, contradictions, and omissions in the Applicant’s evidence. Following Canada (Minister of Employment & Immigration) v. Dan-Ash, [1988] F.C.J. No. 571 (Fed. C.A.), the Respondent says these are bases from which the RPD may reasonably draw a negative credibility finding. The Applicant’s oral testimony was not consistent with either her Origi- nal or Amended Narratives. Although the Original Narrative contained the story of the Biological Family’s threats against the Adoptive Family, the Amended Narrative added the detail about the biological sister warn- ing the Applicant that the Biological Family wanted to push her into prostitution. The Amended Narrative was also inconsistent with the PIF Questionnaire. Although the Applicant’s claim was focussed on the threat from the Biological Family, key details were missing from the Original Narrative. 55 The Respondent also notes the Applicant did not provide documentary evidence to support her claim. A failure to corroborate elements of a claim where a claimant’s story generally lacks credibility may result in a finding that those elements have not been established. See Quichindo c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2002 FCT 350 (Fed. T.D.).

Reasonable State Protection Finding 56 Finally, the Respondent says the RPD’s finding that the Applicant had not rebutted the presumption of state protection was reasonable. The RPD conducted a full and detailed review of the conditions in the Slovak Republic and found protection was available to the Applicant. The RPD provided clear reasons and considered improvements in legislation and social practice in the Slovak Republic. The RPD acknowledged problems which exist in the Slovak Republic, but concluded state protection never- theless existed. The RPD grasped the issues which were before it and drew a conclusion which is supported by the record. In the face of case law which shows the Applicant bears the onus to rebut the presumption of state protection (see Ward, above) and that a police officer’s non-response is not enough to rebut the presumption, the Court should not interfere. Cervenakova v. Canada (MCI) James Russell J. 93

Analysis 57 In my view, the Decision gives rise to two important areas of concern that require it to be returned for reconsideration. 58 First of all, it is not entirely clear why Mr. Kubes did not appear at the RPD meeting or the extent to which the Applicant herself may have been responsible for some of the confusion. However, I think there is clear evidence that Mr. Kubes was counsel of the record for the Applicant’s family, and later the Applicant, and that the RPD should have been aware of this. When faulting the Applicant, the RPD failed to take into account Mr. Kubes’ responsibilities as counsel and that the Applicant was, in effect, left in the lurch at the hearing. See Siloch v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 10 (Fed. C.A.) at paragraph 7. In the end, the Applicant did not get a fair hearing. 59 The Applicant clearly stated at the hearing that Mr. Kubes was her lawyer and there was evidence on the record of the RPD dealing with Mr. Kubes. So it is hard to see why the RPD concluded there was no solicitor of record and that “Mr. Kubes hasn’t seen fit to either indicate that he’s your counsel as he’s supposed to do.” 60 Having left out of account the indications on the file that Mr. Kubes was counsel for the Applicant, the RPD also told the Applicant that the hearing was peremptory and “must go forward today.” This left her with no choice but to try and represent herself. The record shows she was nervous and did not do a very good job of it. 61 The Respondent says this makes no difference because, even with counsel, the outcome could not have been different. Quite apart from the case law which says that procedural unfairness is, per se, a reviewable error (see Sketchley, above, at paragraph 54), on the facts of the present case it is clear to me that the absence of counsel made a significant difference to the outcome of this matter. 62 One of the troubling aspects of the Decision is that the RPD drew a negative inference from the Applicant’s failure to produce corroborative documentary evidence: The Panel cannot extend the benefit of the doubt to the claimant with regard to the credibility of her narratives because she did not establish that she made continuing efforts to provide any evidence of any type with regard to the existence of the claimant’s biological sister, her employment at Samsung, her employment in the Czech Republic or any of her three hospitalizations in both the Czech and Slovak Re- publics. As well, the Panel determines that the claimant gave evasive 94 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

vague and evasive testimony and that she was not a credible or trustworthy witness. 63 However, the Applicant attempted to produce an adoption certificate which listed her biological siblings. However, the RPD did not consider accepting this document as evidence because it was not translated. So she had made an effort to provide documentary evidence. The RPD takes the position that it is moot or irrelevant because “none of this documentation has been translated in English, therefore, the Panel would not be able to consider this material.” 64 Although the section 25(1) of the Rules establishes that documents provided to the RPD must be translated, the Court has also held that, when presented with an unrepresented litigant, the strict and technical rules should be relaxed. See Da Costa Soares v. Canada (Minister of Citizenship & Immigration), 2007 FC 190 (F.C.) at paragraph 22. With- out counsel, the Applicant would really have no way of knowing that the document had to be translated for the RPD to consider it. I have to won- der why the RPD would not give the Applicant an opportunity, posthearing, to provide it with a translated version of the adoption certificate. With that said, even documentation that has not been translated shows that the Applicant made an effort to corroborate her claim. 65 This is of particular importance given the RPD’s credibility finding that the Applicant had not indicated that she had a biological sister and that “the claimant’s narrative with regard to the incidents surrounding her biological parents and relatives is an invented narrative.” 66 The Applicant was also faulted for not providing documentation to corroborate her “three alleged hospitalizations.” The Applicant said she had left documents on a Toronto street car on her way to the hearing. Once again, the RPD rejects this explanation, and says it is moot because of the lack of translation. The Applicant is never given an opportunity to replace these documents that she claimed to have mislaid. 67 If counsel had been present, the translation and lost document issue would have been dealt with much more fairly. It is not reasonable to expect an unrepresented claimant to know that she can ask for an ad- journment if necessary, especially after the RPD told her the hearing had to proceed that day. The Applicant could easily have provided a translation of the adoption certificate posthearing, and there is nothing to suggest she could not, with counsel’s assistance, have provided replacement hospitalization documents in a timely way. Cervenakova v. Canada (MCI) James Russell J. 95

68 The Applicant’s testimony was problematic but I think that, overall, the lack of procedural fairness and the absence of counsel led to material mistakes that render the Decision unsafe and unreasonable. I also agree with the Applicant that the RPD’s assessment of the documentary package as part of the state protection analysis gives rise to a reviewable error. 69 The RPD knew it had to find more than that the Slovak Republic has made “serious efforts” to protect Roma people. Its conclusions in this regard are as follows: The evidence clearly shows that the Roma still suffer from higher rates of unemployment and lower educational achievement. The Roma are still excluded from regular life in terms of housing and healthcare. The documentary evidence indicates that the state is making serious efforts and, although progress is slow, there are signs of progress. It is unreasonable to expect that these measures should have prevented or eliminated all racism or acts of violence related to race; however, this is an indication of the serious efforts the state has made to combat racial discrimination in every aspect of society. The progress is not as rapid and there have been set-backs and obstacles, but the commitment of the state to continue the battle is not in question. The quality of existence for the Roma is not what it should be, but their existence is not threatened by the state. While skinheads and extremists seek to threaten the existence of the Roma, the state takes serious actions against that as well. The Panel has previously determined that the claimant’s oral and documentary evidence has not been reliable and that the claimant has not been a credible and trustworthy witness. However, the documentary evidence is clear that a problem of harassment and discrimination towards Roma and other minorities in the Slovak Republic exist. The documentary evidence is also clear that authorities are taking serious action and that there are results. The evidence that state protection would be inadequate is neither clear nor convincing. 70 The RPD refers here to “serious actions” against skinhead violence and that, as regards harassment and discrimination, the “documentary evidence is also clear that authorities are taking serious action, and that there are results.” 71 The body of the analysis seems to suggest that what the RPD means by “serious actions” and “results” are a few convictions for racial attacks, prosecution for a few police officers, and some increase in sentencing rates. Even in the RPD’s own words, however, “progress is slow,” and the Roma are still at serious risk. If I review the preponderance of the 96 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

evidence, I just do not see what there is to support the RPD’s vague conclusions that “there are signs of some success,” or “the situation had improved,” and why this vagueness supports a finding of adequate state protection. 72 The RPD seems to contradict itself: The documentary evidence of the Board indicates that Roma and other minorities suffer discrimination and violence in the Slovak Re- public and that police mistreat Romani suspects and detainees. The evidence also supports the claimant’s contention that organized neo- Nazi groups and sympathizers harass and attack minorities including the Roma. Further, police might not intervene or investigate properly when there are Roma involved, although this varies by jurisdiction. The Roma generally face discrimination in health care, education, housing and employment in the Slovak Republic as well. In addition, many Roma face severe difficulties and discrimination accessing adequate housing and employment and that they experience segregation in schools and health care facilities. Notwithstanding the latter materials, the documentary evidence indicates that the Slovak Republic has taken and is taking steps to combat these deficiencies and there are signs of real progress. For example, there is a deeply entrenched legal framework as a basis for which the Slovak Republic can combat these problems. The legal framework includes the Constitution, legislation and international obligations as well. 73 The analysis makes an attempt to assess what Justice Mosley has called “operational adequacy” (see Meza Varela v. Canada (Minister of Citizenship & Immigration), 2011 FC 1364 (F.C.) at paragraph 16), but very little is referred to that suggests the Slovak Republic is willing or able to protect Roma people from the widespread violence and mistreatment that the RPD acknowledges is still rampant. 74 I do not see the RPD weighing the evidence in this Decision and concluding that the situation is mixed but, overall, there is sufficient evidence to suggest that protection is adequate. Rather, the RPD searches desperately for any sign of operational adequacy in a generally bleak situation and calls this “real progress” and “some success” and “serious action.” I cannot see how any of what is cited can possibly be called “adequate,” against the general picture of desperation and acknowledged inadequacy. This aspect of the state protection analysis is unreasonable because there is an insufficient basis for the “adequacy” conclusion and the obvious inadequacies, although mentioned, do not enter the RPD’s analysis. Cervenakova v. Canada (MCI) James Russell J. 97

75 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The Decision is quashed and returned for reconsideration by a differently constituted RPD. 2. There is no question for certification. Application granted. 98 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

[Indexed as: Saleem v. Canada (Minister of Citizenship & Immigration)] Nadir Saleem, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4996-11 2012 FC 724 Richard G. Mosley J. Heard: April 10, 2012 Judgment: June 8, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative –––– Applicant was citizen of Pakistan who met and married young woman contrary to her parent’s wishes — Applicant and his wife fled to another city and took refuge with family of friend — Wife’s parents had applicant charged with abduction and rape — Applicant fled to Canada and sought protection — In August 2008, applicant’s wife gave birth to son — Applicant’s wife continued to live in Pakistan with friend’s family — Refugee Protection Division (RPD) dismissed applicant’s claim for refugee protection — Applicant brought application for judicial review of decision of RPD — Application granted — RPD’s finding that many lower courts in Pakistan were corrupt was inconsistent with its finding that applicant could return to face his accusers in Pakistan on assumption that he would have reasonable chance of success in defending himself against charges — If arrested, applicant would have been tried in city where his in-laws, according to evidence accepted by RPD, appeared to carry considerable influence — Evidence indicated there was considerable backlog in judicial system, which could result in serious consequences such as indeterminate pre-trial detention — RPD’s decision was not defensible on facts and law and did not fall within acceptable range of outcomes. Cases considered by Richard G. Mosley J.: Abdeen v. Canada (Minister of Employment & Immigration) (1994), 1994 Car- swellNat 621, 78 F.T.R. 61, [1994] A.C.F. No. 779, [1994] F.C.J. No. 779 (Fed. T.D.) — referred to Belmonte Soto c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2011), 2011 CarswellNat 970, 2011 CF 360, 2011 FC 360, 2011 Car- swellNat 1753, [2011] F.C.J. No. 446, [2011] A.C.F. No. 446 (F.C.) — referred to Saleem v. Canada (MCI) Richard G. Mosley J. 99

Chowdhury v. Canada (Minister of Citizenship & Immigration) (2008), 70 Imm. L.R. (3d) 161, 2008 CarswellNat 586, 2008 FC 290, 2008 CF 290, 2008 CarswellNat 1216, [2008] F.C.J. No. 368 (F.C.) — referred to Guerilus c. Canada (Ministre de la Citoyennet´e & de l’Immigration) (2010), 2010 CarswellNat 886, 2010 CF 394, 2010 CarswellNat 2188, 2010 FC 394, [2010] F.C.J. No. 438 (F.C.) — referred to Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Ranganathan v. Canada (Minister of Citizenship & Immigration) (2000), 11 Imm. L.R. (3d) 142, 193 F.T.R. 320 (note), 2000 CarswellNat 3134, [2001] 2 F.C. 164, 266 N.R. 380, 2000 CarswellNat 3459, [2000] F.C.J. No. 2118 (Fed. C.A.) — referred to Statutes considered: Code of Criminal Procedure, Act V, 1898 s. 83 — considered Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72 — pursuant to

APPLICATION for judicial review of decision of Refugee Protection Division.

Michael Sherritt, for Applicant Camille Audain, for Respondent

Richard G. Mosley J.:

1 The applicant Nadir Saleem seeks judicial review under section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 (hereafter IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (hereafter the Board) which found that he was not a Convention refugee or a person in need of protection. 100 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

2 For the reasons that follow, the application is granted.

Background: 3 The applicant is a citizen of Pakistan from the city of Sialkot in the Province of Punjab. He met a young woman through his sister and began a relationship with her which led to a marriage proposal contrary to her parent’s wishes. The couple fled to the city of Mardan and took refuge with the family of a friend. They were married in October 2007. Charges of abduction and rape were filed against the applicant on the complaint of his wife’s parents. He fled to Canada and sought protection. In August 2008 his wife gave birth to a son. The wife and son continue to live in Mardan with the friend’s family.

Decision under Review: 4 The Board found the applicant’s claim to be largely credible and supported by the evidence. This included the First Information Report (FIR), arrest warrant, marriage certificate, emails from the wife, son’s birth certificate, national identification card and passport among other items. 5 The Board found that the applicant had Internal Flight Alternatives (hereafter IFA) in the cities of Multan and Mardan. Both cities are more than 400 km from Sialkot and have large populations. The Board found that the applicant’s in-laws would not be able to find him and his wife in one of those cities and did not, in any event, appear to be actively looking for him outside Sialkot. The Board considered that it would be easy for the applicant to relocate as he had a bachelors degree from Pakistan and had completed most of his MBA in the United States.

Issue: 6 The sole issue is whether the Board’s IFA finding was reasonable.

Analysis: Standard of review 7 An IFA finding is a question of mixed fact and law attracting a standard of reasonableness: Belmonte Soto c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2011 FC 360 (F.C.) at para 19; and Guerilus c. Canada (Ministre de la Citoyennet´e & de l’Immigration), 2010 FC 394 (F.C.) at para 10. Reasonableness is based on the existence of justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, Saleem v. Canada (MCI) Richard G. Mosley J. 101

acceptable outcomes which are defensible in respect of the facts and law: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.) at para 47; and Khosa v. Canada (Minister of Citizenship & Im- migration), 2009 SCC 12 (S.C.C.) at para 59.

Was the IFA finding reasonable? 8 The test to establish that it is unreasonable for the applicant to relocate to a proposed IFA is strict. The applicant had to demonstrate on a balance of probabilities that he would face a serious risk of persecution in the proposed IFAs. If the Board is not satisfied that such risk exists, the applicant had to demonstrate that it would be unreasonable for him to move to the proposed IFA: Ranganathan v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 2118 (Fed. C.A.). 9 The applicant submits, among other arguments, that the Board erred in its finding that the in-laws and the police were not actively looking for the applicant and his wife outside of Sialkot. He contends that the Board failed to consider the fact that he is subject to a warrant and that it was unreasonable for the Board to suggest that he can simply face the charges in Pakistan because he has a “reasonable” chance of getting them dismissed. The Board’s finding, he submits, goes against the evidence that the police and the lower courts are corrupt, and the evidence of violence against couples who get married against their parent’s wishes. 10 It was open to the Board to find, as it did, that the in-laws and police could have found where the wife was living through her National Identi- fication Card, which includes the residence address, as the record indicates that it was used in the issuance of the son’s birth certificate. It was mere speculation, however, to also conclude that the police and in-laws could have located her through the friend who offered shelter in Mardan as the evidence does not indicate that the friend was known to her family or the police. Moreover, the wife was not subject to the arrest warrant and the fact that she was able to live in Mardan, albeit discretely, for four years should not have been used to demonstrate that the applicant would not have been arrested had he returned to that city. 11 As noted by the Board, Pakistan experiences a high number of honour crimes committed against couples who marry in defiance of parents. The evidence also indicates that the police allow themselves to be used as guardians of public morality to uphold tradition and culture. It was unreasonable, in the circumstances, to suggest that the applicant live in hid- 102 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

ing in the propose IFA: Abdeen v. Canada (Minister of Employment & Immigration), [1994] F.C.J. No. 779 (Fed. T.D.). 12 The Board relied on a research report to find that frivolous FIRs are often dismissed by the Pakistani courts. However, the Board failed to consider the effect of the arrest warrants. It assumed, without evidence, that the fact that FIRs are not accessible through a computerized system indicated that there is no computerized system to access warrants. 13 The evidence describes FIRs as: “written reports prepared by police in response to the report of an event or criminal incident brought to their attention. FIRs are a record of the initial information that is provided by a complainant to the police”. Warrants, on the other hand, are formal orders for the arrest of the suspect issued by a magistrate and, under section 83 of the Pakistani Code of Criminal Procedure, can be executed outside of the local territorial jurisdiction of the magistrate and police. There is no indication in the evidence that warrants are not accessible through electronic or other means in other parts of Pakistan. 14 The Board accepted that many lower courts in Pakistan are corrupt. That finding was supported by the objective country documentation. It was, therefore, contradictory for it to suggest that the applicant could return to face his accusers in Pakistan on the strength of an assumption that he would have a reasonable chance of success in defending himself against the charges. If arrested, the applicant would have been tried in Sialkot where his in-laws, according to the evidence accepted by the Board, appear to carry considerable influence. The evidence indicates that there also is a considerable backlog in the judicial system. This could result in serious consequences such as indeterminate pre-trial detention: Chowdhury v. Canada (Minister of Citizenship & Immigra- tion), 2008 FC 290 (F.C.) at para 16. 15 With these concerns, I am not satisfied that the Board’s decision is defensible on the facts and the law or that it falls within the acceptable range of outcomes. 16 No serious questions of general importance were proposed and none will be certified.

Judgment THIS COURT’S JUDGMENT is that the application is granted and the matter remitted to the Refugee Protection Division for reconsideration. No questions are certified. Application granted. Ali v. Canada (MCI) 103

[Indexed as: Ali v. Canada (Minister of Citizenship & Immigration)] Iftikhar Ali and Naseem Kauser, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5800-11 2012 FC 259 Donald J. Rennie J. Heard: February 14, 2012 Judgment: February 24, 2012 Immigration and citizenship –––– Refugee protection — Credibility — Basis of negative credibility finding — General principles –––– Claimants from Pa- kistan brought application for judicial review of Refugee Board’s decision denying them refugee protection — Application granted; matter referred back to board for reconsideration — Board’s credibility findings about whether claimants converted to Shia Islam and other matters were unreasonable — Board did not base credibility findings on inconsistencies or discrepancies in testimonies but solely on deficiencies in supporting documentary evidence and alleged implausibilities — Claimants’ evidence was consistent and corroborated by relevant documentary evidence — Board repeatedly conflated issue of sufficiency of evidence with its veracity or authenticity and drew negative credibility findings in respect of documents whose provenance or authenticity was not questioned — Alleged inconsistencies or implausibilities identified by board were unsupported by evidence. Cases considered by Donald J. Rennie J.: Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302, 1979 CarswellNat 168, 1979 CarswellNat 168F, 31 N.R. 34, [1979] F.C.J. No. 248 (Fed. C.A.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to 104 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 97 — referred to Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Generally — referred to

APPLICATION by refugee claimants for judicial review of decision denying them refugee protection.

Ms Elyse Korman, for Applicants Ms Ildiko Erdei, for Respondent

Donald J. Rennie J.:

1 The applicants seek judicial review of a decision of the Refugee Pro- tection Division of the Immigration and Refugee Board of Canada (the Board), dated August 5, 2011, which held that the applicants were not Convention (United Nations’ Convention Relating to the Status of Refu- gees, [1969] Can TS No 6) refugees or persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protec- tion Act, 2001, c. 27 (IRPA). For the reasons that follow, the application is granted.

Facts 2 The applicants, Iftikhar Ali and Naseem Kauser, are citizens of Paki- stan. The principal applicant, Iftikhar Ali (applicant), alleges that he and his family face persecution by his brother and the Sunni religious ex- tremist group Sipah-e-Sahaba (SSP). 3 The applicant was raised as a Sunni Muslim, but over time, as he was exposed to Shia Islam by friends and work colleagues, he accepted that both Sunni and Shia Muslims are true Muslims. He and his family attended Shia ceremonies, and in February 2008, he decided to formally convert to Shia Islam. 4 The applicant testified before the Board that shortly after his conversion Mullah Rashid from the SSP confronted him for converting, stating that all Shias are infidels. The applicant was not dissuaded from his commitment to the Shia faith. Ali v. Canada (MCI) Donald J. Rennie J. 105

5 The applicant testified that on March 14, 2008, his son was attacked and beaten by three men while riding the applicant’s motorcycle. The men denigrated the Shia faith and said that if it had been the applicant on the bike, he would have been killed. The applicant took his son to the police, but they initially refused to register a report. Only after returning several times did the applicant succeed in convincing the police to register the report. 6 Two members of the SSP visited the applicant in May 2008 and threatened him if he did not renounce the Shia faith. After this incident, the applicants and their children left their home in Sheikhupura and stayed with relatives for two months. The applicant was threatened by these men again in September 2008. He reported the threats to the police but they were unwilling to help. The applicant sent his wife and children to live with relatives, and kept his children out of school for their safety. 7 The applicant states that when his relatives discovered he had converted, they told him if he did not renounce the Shia faith, he would be disowned and disinherited. When he refused, the family posted an advertisement in the newspaper that he had been disowned - a copy of this advertisement was submitted to the Board. 8 On March 23, 2009, the applicant stated that two men attempted to set his factory on fire. The security guard saw two men fleeing the scene. The fire was quickly controlled, but some of his equipment was dam- aged. The applicant again went to the police, but they refused to investigate, stating that it was probably a short circuit that caused the fire. The applicant spoke to a journalist at the police station about the incident and it was reported in the newspaper - the article was also submitted to the Board. 9 In May 2009, the applicant’s brother and members of the SSP confronted the applicant at his in-laws’ home, and assaulted him. The applicant went to the doctor to treat his injuries, including damage to two of his teeth. The applicant’s relatives also told him that armed men were waiting at his house in Sheikhupura. The applicant then arranged for him and his wife to travel to Canada. He testified that he spread word that his children were also coming to Canada, so that no one would suspect they were staying behind, with a friend in Lahore. The applicants arrived in Canada on October 13, 2009 and made claims for refugee protection in January 2010. 106 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Decision Under Review 10 The Board found that the applicants were not Convention refugees or persons in need of protection. The determinative issue for the Board was credibility. The Board drew several negative credibility findings, on the following grounds: a. The applicant failed to provide the original medical note from his doctor’s visit following the May 2009 attack; instead, he only provided a note written by the doctor on April 10, 2011 - this note did not explain how the doctor remembered treating the applicant or how he sustained the injuries. b. A letter from the President of the Jaffaria Trust in Faisalabad (which confirmed that the applicant converted to the Shia faith) did not provide any details on what the applicant did to convert or how long the process took. The applicant had also provided no documentation of involvement with the Shia faith prior to his conversion. c. A letter from the Al-Eman Society of Canada did not indicate that it was a Shia organization or specify the applicant’s involvement. d. The Board did not find it credible that the applicant would continue to work in Lahore until October 2009 if he was at risk as of May 2009 or earlier. e. The Board did not believe the applicant’s story that his factory was set on fire and the police refused to investigate. The Board noted that the applicant did not take photographs of the damage to assist the police or the Board. The Board also noted that the applicant claimed there was little fire damage as the fire was controlled, but the alleged damage was to the inside of his business and to the embroidery machines totaling 50,000 rupees. f. The Board did not find it credible that the applicant’s children, who also allegedly converted to the Shia faith, had experienced no problems living in Lahore since May 2009. g. In the applicants’ initial forms claiming refugee protection, they did not specifically mention their conversion from Sunni to Shia. Their response to who they are afraid of was: “The Sepa Sahaba and Sunni’s religious extremists.” Their response to why they were asking for protection was: “My life is at risk in Pakistan and Ali v. Canada (MCI) Donald J. Rennie J. 107

there is no protection available to me in my country. Therefore I am asking for Canada’s protection.” 11 The Board acknowledged the evidence of religious violence between Sunni Muslims and religious minorities. However, based on the above findings, the Board was unconvinced that the applicants were converted Shias. The claims were therefore rejected.

Issue 12 The only issue raised by this application is whether the Board’s credibility findings were reasonable (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.)).

Analysis 13 I agree with the applicant that the Board’s credibility findings were unreasonable. While the Board is entitled to deference in its credibility findings, in this case the Board did not base those findings on inconsistencies or discrepancies in testimony, which the Board is best placed to assess. Instead, the Board based its findings solely on deficiencies in the supporting documentary evidence and alleged implausibilities, none of which in my view were supportable. The decision should therefore be set aside. 14 It is settled law that when a claimant swears to the truth of his testimony, that testimony is presumed to be true unless there is a valid reason to doubt its truthfulness: Maldonado v. Canada (Minister of Employment & Immigration) (1979), [1980] 2 F.C. 302 (Fed. C.A.). Thus, it is an error for the Board to arbitrarily disbelieve a claimant’s testimony without a valid reason for doing so. 15 In this case, the applicant’s evidence was consistent throughout and was also supported by relevant documentary evidence. The majority of concerns identified by the Board relate to perceived deficiencies in the supporting evidence, for example, that the applicant could only provide a new medical note about his hospital visit instead of the original, and the insufficient detail in letters of support from Muslim organizations both in Pakistan and Canada. However, this documentary evidence corroborated the applicant’s claims. The Board cannot find the applicant not credible just because the documents did not contain all the details the Board would have preferred, particularly where the Board has identified no inconsistencies in the applicant’s evidence or between the applicant’s evidence and the documents. 108 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

16 In its analysis of the evidence in respect of conversion, the Board repeatedly conflated the issue of the sufficiency of evidence with its veracity or authenticity. They are distinct concepts. Evidence which is not believed because it is fabricated, in the case of documentary evidence, or implausible in the case of oral evidence, is given no weight. Documen- tary evidence or oral testimony, on the other hand, which is accepted as authentic or truthful, may nonetheless be of insufficient probative value to establish a claim. It may leave the evidentiary burden undischarged. Here, the Board repeatedly confused the two concepts, drawing negative credibility findings about the applicant in respect of documents whose provenance or authenticity was not questioned. 17 The few alleged inconsistencies or implausibilities identified by the Board are unsupported by the evidence. The Board appears to find the applicant’s claim that there was “little” fire damage inconsistent with the fact that the fire apparently caused 50,000 rupees’ worth of damage. However, the transcripts show that the applicant testified that this equaled about $700-800 dollars’ worth of damage. I find it unreasonable to rely on this as an inconsistency particularly given the fact that the applicant submitted a newspaper article confirming that the fire occurred. 18 The Board also found it implausible that the applicant’s children had experienced no problems since converting to the Shia faith. However, as the applicant submits, the Board failed to consider the applicant’s testimony containing an unchallenged explanation for this; namely, that he spread the word that his children had left the country with him and that his children were currently living secretly with a friend. 19 Finally, I find it perverse and capricious for the Board to rely on the fact that the applicants’ initial port of entry form did not explicitly state that they converted from Sunni to Shia. That form expressly instructs claimants to be brief as they will have the opportunity to provide further details later. The applicants listed “The Sepa Sahaba and Sunni’s religious extremists” as the persons they feared if returned to Pakistan. That brief statement makes the basis for their claim sufficiently clear and is consistent with their more detailed allegations. A negative credibility finding on this basis appears to me to reflect a zeal to discredit the applicant, which is contrary to the presumption of truthfulness of testimony discussed by the Federal Court of Appeal in Maldonado, above. 20 The application for judicial review is granted. The matter is referred back to the Immigration Refugee Board for reconsideration before a dif- Ali v. Canada (MCI) Donald J. Rennie J. 109 ferent member of the Board’s Refugee Protection Division. No question for certification has been proposed and the Court finds that none arises.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted. The matter is referred back to the Immigration Refugee Board for reconsideration before a different member of the Board’s Ref- ugee Protection Division. No question for certification has been proposed and the Court finds that none arises. Application granted; matter referred back to Refugee Board for reconsideration. 110 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

[Indexed as: Monroy Beltran (Litigation Guardian of) v. Canada (Minister of Citizenship & Immigration)] Nicolas Hernando Monroy Beltran By His Litigation Guardian Patricia Monroy, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5348-11 2012 FC 275 Russel W. Zinn J. Heard: February 21, 2012 Judgment: February 29, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Generalized risk –––– FARC in Colombia threatened to recruit claimant after his father refused demand for payment — Board dismissed claim for protection on basis that there was no nexus to Convention ground and that risk was general to young people in Co- lombia — Claimant applied for judicial review — Application granted — Deci- sion was unreasonable — Board failed to conduct individualized inquiry required under s. 97(1) of Immigration and Refugee Protection Act — Board ignored fact that claimant faced more than generalized risk as he was specifically targeted for forced recruitment — It was also not necessary in order for claimant to have well-founded fear of persecution under s. 96 of Act that there be nexus between forcible recruitment of children and Convention ground. Cases considered by Russel W. Zinn J.: Corado Guerrero v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 1210, 2011 CarswellNat 4291, 2011 CF 1210, 2011 CarswellNat 5327 (F.C.) — considered De Parada v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CarswellNat 2544, 2009 FC 845, 2009 CarswellNat 5910, 2009 CF 845, [2009] F.C.J. No. 1021 (F.C.) — considered Lovato v. Canada (Minister of Citizenship & Immigration) (2012), 2012 FC 143, 2012 CarswellNat 242, 2012 CF 143, 2012 CarswellNat 373 (F.C.) — considered Proph`ete v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 331, 2008 CarswellNat 625, 70 Imm. L.R. (3d) 128, 2008 CarswellNat 5092, 2008 CF 331, [2008] F.C.J. No. 415 (F.C.) — considered Monroy Beltran (Litigation Guardian of) v. Canada (MCI) Russel W. Zinn J. 111

Rodriguez Perez v. Canada (Minister of Citizenship & Immigration) (2009), 2009 CF 1029, 2009 CarswellNat 5885, 2009 FC 1029, 2009 CarswellNat 3187, [2009] F.C.J. No. 1275 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 Generally — referred to s. 72(1) — pursuant to s. 96 — considered s. 97 — considered s. 97(1) — considered s. 97(1)(b)(ii) — considered

APPLICATION by claimant for judicial review of decision of Immigration and Refugee Board determining him not to be Convention refugee or person in need of protection.

J. Stephen Schmidt, for Applicant Meva Motwani, for Respondent

Russel W. Zinn J.:

1 This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27, of a decision of the Refugee Protection Division of the Immigration and Refugee Board that held that the applicant was neither a Convention refugees nor a person in need of protection. 2 For the reasons that follow, this application is allowed.

Background 3 Nicolas Beltran is a citizen of Colombia. He was 17 at the time of his hearing before the Board; his aunt acted as his designated representative. 4 Mr. Beltran testified and he was found to be credible. During the last two years of high school, he carried out community work for the Colom- bian Civil Defence. He performed functions such as rescue, vigilance and massive event control. On November 20, 2010, his father was working in his office when he received a telephone call from a commander of the Fuerzas Armadas Revolucionarias de Colombia (FARC). His father was told that the obligatory contribution (vacuna) had not been paid. When his father refused to pay, the FARC demanded the applicant as a recruit. A denunciation was filed to the National Police that same day. 112 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

5 On December 8, 2010, the applicant left Colombia alone. He went to the United States where he stayed for two days before claiming refugee protection at the Canadian border. His aunt who had been granted refugee protection in Canada approximately seven years ago was waiting for him. 6 The Board believed the applicant’s allegation that members of the FARC threatened to recruit him when his father did not accede to their “vacuna” demands. This risk, it found, did not provide a nexus to a Con- vention ground and was generalized in Colombia. The Board found that the perpetrators were acting in a criminal manner and although the FARC is an organization with political objectives, its modus operandi is not as political as it was in the past. There was no evidence that the applicant or his father were questioned on their political views. Moreover, when the Board questioned the applicant as to whether his community involvement had anything to do with the recruitment demands, the applicant candidly said it did not. Although the “UNHCR considers that forcibly recruited and/or trafficked children in Colombia may be a risk on the ground of membership of a particular social group,” the Board did not accept that this overrode subparagraph 97(1)(b)(ii) of the Act dealing with generalized risk. 7 The risk of recruitment, as admitted by the applicant, was found to apply to many young people in Colombia. Additionally, the Board found that there was no evidence adduced surrounding the effect of a possible recruitment. Both the Board and the applicant agreed that vacuna demands from people who are perceived to have money, such as the applicant’s father, were part of the FARC’s modus operandi. The Board pointed to various passages of the documentary evidence to support a finding that the risk faced by the applicant was generalized in Colombia. The Board, stating that it was relying on jurisprudence from this Court, concluded that Mr. Beltran was not eligible for refugee protection: De Parada v. Canada (Minister of Citizenship & Immigration), 2009 FC 845 (F.C.) [Ventura De Parada], Rodriguez Perez v. Canada (Minister of Citizenship & Immigration), 2009 FC 1029 (F.C.) [Rodriguez Perez], and Proph`ete v. Canada (Minister of Citizenship & Immigration), 2008 FC 331 (F.C.) [Proph`ete].

Issues 8 The memorandum filed and signed by the applicant and his litigation guardian does not specifically identify any issues in dispute. At the hear- Monroy Beltran (Litigation Guardian of) v. Canada (MCI) Russel W. Zinn J. 113

ing counsel for the applicant addressed three issues; however, having reviewed the entire record and listened to oral submissions it is my view that there are only two relevant issues: 1. Was the Board’s finding that the applicant’s risk had no nexus to a Convention refugee ground reasonable? 2. Was the Board’s finding that the applicant’s risk is a risk faced generally by others in Colombia reasonable? 9 It is noted that the Board stated at the beginning of its decision that “[t]he determinative issues are nexus, failure to claim elsewhere, and generalized risk.” As noted by the applicant, the Board did not provide any reasons on the issue of “failure to claim elsewhere.” It is clear from the transcript that the Board, which raised it as an issue at the commence- ment of the hearing, was satisfied with the evidence of the applicant and the reference to the issue in the decision was in error. Nothing turns on this. The basis of the decision was nexus and “generalized risk.”

Analysis 1. Nexus 10 The applicant submitted that his fear of persecution had a nexus to two Convention refugee grounds: political opinion and particular social group. 11 It was submitted that FARC is a political group and if the applicant were to be forcibly recruited to it then he would have to engage in acts to which he was opposed. This does not amount to a fear of persecution on the ground of political opinion. In order to have a nexus to a Convention refugee ground the applicant would have to have a fear of persecution “for reasons of” his political opinion. It is clear, as he candidly admitted at the hearing before the Board, that his political work or opinion has no relationship to his fear of forced recruitment. 12 Similarly, it is not evident that his fear of forced recruitment has any relationship to him being a child. On the other hand, the Board’s rejection of that submission is problematic. The applicant cited and relied upon the ‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia’ in the National Documentation Package before the Board and, more specifically, the following statement: “UNHCR considers that forcibly recruited and/or trafficked children in Colombia may be at risk on the ground of membership 114 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

of a particular social group.” The Board dismissed that submission by saying: The Board does not concur that this statement by UNHCR overrides Section 97(1)(b)(ii) of the IRPA. Moreover, there was no evidence adduced surrounding the effect of a possible recruitment. While I take note of the UNHCR document, I am bound by the jurisprudence of the Court. There are three difficulties with this statement. 13 First, the UNHCR report was tendered with respect to protection as a Convention refugee under section 96 of the Act and clearly was not intended to have any connection or relevance to section 97. Further, no submission was made to the effect that the UNHCR statement did over- ride any provision of the Act, although the statement suggests otherwise. 14 Second, there was evidence before the Board as to the effect of forced recruitment. While this was not specific to the applicant, the record is replete with information from UNHCR, the US Department of State, Human Rights Watch, and others as to the consequences for children who are forcibly recruited by FARC, including sexual abuse, being forced to kill, and other horrendous consequences. 15 Third, as counsel for the respondent candidly and responsibly admitted there is no jurisprudence of this Court, nor is any cited by the Board, that holds that the forcible recruitment of children in Colombia by FARC is not entitled to protection under section 96 of the Act on the basis of there being no nexus to a Convention ground.

2. “Generalized Risk” 16 The Board correctly identified that the applicant feared being forcibly recruited by FARC. However, the Board then states: “As stated in Ventura De Parada, this claimant was not targeted personally; rather she, as a business person, who was perceived to be well-off, had been targeted.” 17 The Board in this statement and others conflated the risk and fears of the applicant’s father who was being subjected to extortion to the fear and risk of his son which, while caused by the father’s refusal to pay, had nothing to do with his father’s fears and risk. All of the decisions of this Court cited by the Board, including Ventura De Parada, Rodriguez Pe- rez, and Proph`ete dealt with situations where the claimants seeking protection had been victims of crimes. Monroy Beltran (Litigation Guardian of) v. Canada (MCI) Russel W. Zinn J. 115

18 More critically, the Board’s analysis of the applicant’s fear was simply that his fear of forcible recruitment was the fear of “many young people in Colombia.” It failed to examine the personal circumstances of this applicant. In Corado Guerrero v. Canada (Minister of Citizenship & Immigration), 2011 FC 1210 (F.C.), I reiterated the requirement that the Board must conduct an individualized inquiry when examining a claim under subsection 97(1) of the Act and not simply look to the fear and ask whether the applicant’s fear is one shared by others generally in the country. 19 The situation here is similar to that described by Justice Rennie in Lovato v. Canada (Minister of Citizenship & Immigration), 2012 FC 143 (F.C.), at para 14: As noted in Vivero [2012 FC 138], 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. 20 Because the Board failed to conduct the required individualized inquiry, it simply accepted that his risk of forced recruitment was the same as many other young boys in Colombia. In so doing, it completely ignored that unlike those young boys, the applicant was specifically targeted for forced recruitment because his father had refused the demands made by FARC. He was not simply one of the many boys that FARC attempts to recruit in order to fill its ranks. While there may be a general risk of forced recruitment in that FARC targets boys indiscrimi- nately, that is not the situation in which the applicant found himself. Be- cause the Board failed to conduct the proper assessment under subsection 97(1) of the applicant’s risk, this decision is unreasonable and must be re-determined. 21 Neither party proposed a question for certification. 116 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Judgment THIS COURT’S JUDGMENT is that this application is allowed, the applicant’s claim for protection is referred back to the Board for determination by a different Member, and no question is certified. Application granted. Wright v. Canada (MCI) 117

[Indexed as: Wright v. Canada (Minister of Citizenship & Immigration)] Connie Judy Kay Wright, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4748-11 2012 FC 320 Donald J. Rennie J. Heard: February 28, 2012 Judgment: March 16, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Judicial review — Natural justice — General principles –––– Applicant was citizen of Saint Vincent — Applicant’s husband was physically violent to her and would sometimes lock her out of their home — Applicant tried to seek help from police on multiple occasions but police refused to charge her husband — On one occasion when her husband severely injured her leg police told applicant to go to hospital, but did not take her there nor lay charges — Applicant eventually fled abuse and went to stay with her father; her husband came to father’s house and threatened to kill applicant and her family — After applicant’s husband saw her on street one day and attacked her, applicant came to Canada — Refugee Protection Division (RPD) dismissed applicant’s claim — Applicant brought application for judicial review of decision of RPD — Application granted — RPD failed to follow relevant precedent — RPD was required was required to do what court had instructed: consider evidence in record concerning state protection in St. Vincent, determine whether positive evidence outweighed negative, and, explain basis for that determination — RPD Board failed to engage with considerable evidence that state was unable to protect women from domestic violence and to explain why it preferred portions that indicated state protection was available. Cases considered by Donald J. Rennie J.: Hooper v. Canada (Minister of Citizenship & Immigration) (2007), 2007 Car- swellNat 4578, 2007 FC 1359, 68 Imm. L.R. (3d) 106, [2007] F.C.J. No. 1744 (F.C.) — considered James v. Canada (Minister of Citizenship & Immigration) (2010), 2010 FC 546, 2010 CarswellNat 1413, 2010 CF 546, 2010 CarswellNat 2586, [2010] A.C.F. No. 650, [2010] F.C.J. No. 650 (F.C.) — considered 118 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

John v. Canada (Minister of Public Safety & Emergency Preparedness) (2010), 2010 CarswellNat 5109, 2010 CF 1088, 2010 FC 1088, 2010 CarswellNat 4168 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 97 — referred to

APPLICATION for judicial review of decision by Refugee Protection Division, denying applicant’s claim.

Aadil Mangalji, for Applicant Lucan Gregory, for Respondent

Donald J. Rennie J.:

1 The applicant seeks judicial review of a decision of the Refugee Pro- tection Division of the Immigration and Refugee Board of Canada (the Board) which found that the applicant was not a Convention (United Na- tions’ Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that follow, the application is granted.

Facts 2 The applicant is a citizen of Saint Vincent. She alleges fear of persecution by her exhusband, Alrick Wright. The applicant states that Alrick began abusing her soon after they started living together. He was physically violent to her and would sometimes lock her out of the house. The applicant states that their relationship improved slightly after the birth of their first child, at which point he convinced her to marry him, but the abuse resumed after they were married. 3 The applicant states that she tried to seek help from the police on multiple occasions. Each time they would not arrest her husband but would talk to him and tell him to treat the applicant better. On one occasion when her husband severely injured her leg the police told her to go to the hospital. They did not take her there nor lay charges. 4 The applicant eventually fled the abuse and went to stay with her father. Her husband came to the house and threatened to kill the applicant and her family. The applicant decided to find work in the Grenadines and Wright v. Canada (MCI) Donald J. Rennie J. 119

only returned home each month to see her family. In 2005, after her husband saw her on the street one day and attacked her, she decided she would never be safe and came to Canada in 2006. She remained here for several years before a friend informed her that she could make a refugee claim based on domestic violence. She made her claim in May 2010.

Decision Under Review 5 In the reasons for its decision dated June 22, 2011, the Board found that the determinative issue was state protection, finding that the applicant did not rebut the presumption of state protection with clear and convincing evidence. The Board noted the Court’s decision in James v. Canada (Minister of Citizenship & Immigration), 2010 FC 546 (F.C.), which canvassed documentary evidence in respect of state protection for victims of domestic violence in Saint Vincent. However, the Board found that the more recent evidence, namely subsequent to James, was mixed rather than entirely negative. 6 In support of this finding the Board quoted at length from two Re- sponses to Information Requests related to domestic violence in Saint Vincent, one from 2009 and one from 2008. The Board also quoted a long passage from the 2010 US DOS Report on human rights in Saint Vincent, finding the evidence in respect of state protection also to be mixed rather than entirely negative. 7 The Board concluded that: In my view, it would be too problematic for the surrogate notion of refugee protection if grants of it were to occur in the face of documentary state protection evidence this mixed and in circumstances where the last clear chance the state was given to protect the claimant from the agent of persecution occurred as long ago as in this case — again, nearly 20 years ago, in the year 1992. 8 The Board noted the applicant’s testimony about what she had heard recently about police responses to domestic violence but found that this only added to a “mixed factual record” and was insufficient to rebut the presumption of state protection. The Board also found that the applicant’s attempts to seek protection were not sufficient to prove an absence of state protection since they were so long ago. The applicant’s claim was therefore rejected. 120 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Standard of Review and Issue 9 The issue before the Court is whether the Board’s analysis of state protection was reasonable. It is settled law that the question of whether state protection is available is a question of mixed fact and law, to be reviewed on a standard of reasonableness; James, para 16.

Analysis 10 In James, Justice Robert Mainville set aside a decision of the Board for selectively considering the evidence of state protection in Saint Vin- cent and failing to explain why the positive evidence outweighed the negative. Justice Mainville provided several examples of documentary evidence that state protection was not available and then stated the following: Though it is clear that the Panel’s decision on the availability of state protection must be given deference, such deference is not absolute. As noted by Justice O’Reilly in Lewis v. Canada (Minister of Citi- zenship and Immigration), 2009 FC 282, [2009] F.C.J. No. 347 (QL) at paras. 8 to 10 [emphasis added]: The Board found that the documentary evidence established adequate sources of state protection in St. Vincent for women in Ms. Lewis’s circumstances. For example, the Board cited a report describing the role of the St. Vin- cent Family Court in protecting women from domestic violence. The Board also referred to laws aimed at protecting victims of family violence. However, Ms. Lewis claims that the Board failed to refer to the evidence showing the limited capacity of the Family Court to enforce its orders, the reluctance of police officers to take action in domestic violence cases, and the infrequency with which the laws that are supposed to protect women are enforced. The Minister argues that the Board is presumed to have considered all the evidence before it, even if the Board does not specifically cite it. I agree. However, here, the very documents relied on by the Board to find a presence of adequate state protection in St. Vincent also question the sufficiency of that protection. In my view, the Board was obliged to explain why it found that the favourable elements contained in the evidence outweighed the negative parts. In the absence of that assessment, I find that the Board’s decision was unreasonable in the sense that it was Wright v. Canada (MCI) Donald J. Rennie J. 121

not a defensible outcome in light of the facts and law: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47. I note that Justices Yves de Montigny and John O’Keefe came to similar conclusions about the Board’s treatment of evidence relating to state protection in St. Vincent in Hooper v. Canada (Minister of Citizenship and Immigra- tion), 2007 FC 1359, [2007] F.C.J. No. 1744 (QL) and King v. Canada (Minister of Citizenship and Immigra- tion), 2005 FC 774, [2005] F.C.J. No. 979 (QL), respectively. I agree with Justice O’Reilly on this matter, as well as with Justices de Montigny and O’Keefe in the two decisions referred to above, namely Hooper v. Canada (Minister of Citizenship and Immigra- tion), 2007 FC 1359, [2007] F.C.J. No. 1744 (QL) and King v. Can- ada (Minister of Citizenship and Immigration), 2005 FC 774, [2005] F.C.J. No. 979 (QL). I add that this Court has come to similar conclusions on numerous occasions, notably, to name but a few, in Alexan- der v. Canada (Minister of Citizenship and Immigration), supra (Jus- tice Harrington); Jessamy v. Canada (Minister of Citizenship and Immigration), 2009 FC 20, 342 F.T.R. 250, [2009] F.C.J. No. 47 (QL) (Justice Russell); Myle v. Canada (Minister of Citizenship and Immigration), 2006 FC 871, [2006] F.C.J. No. 1127 (QL) (Justice Shore); and Codogan v. Canada (Minister of Citizenship and Immi- gration), 2006 FC 739, [2006] F.C.J. N0. 1032 (QL) (Justice Teitelbaum). Here the Panel was obligated to explain why it found that the favorable elements contained in the country documentation outweighed the negative parts. Having failed to carry out such an analysis, I have no hesitation finding that the Panel’s decision was unreasonable. [Emphasis in original] 11 The Board acknowledged the Court’s decision in James but found that the documentary evidence was not precisely as it was when James was decided and therefore concluded that the presumption of state protection had not been rebutted. 12 The thrust of the Board’s reasoning is that the decision in James was “some time ago”, and at that time the documentary evidence regarding protection for victims of domestic violence was “entirely negative”. The more recent evidence was, in contrast, “mixed”, and therefore James could be distinguished. I reject this reasoning: James was decided in May, 2010, and the decision under review in James was made in Septem- 122 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

ber 2009. Furthermore, the evidence considered by the Board in James was just as “mixed” as the evidence before the Board in this case. In fact, the evidence was almost identical in its substance to the evidence in James which is unsurprising, given how little time had elapsed between the decisions. 13 Thus, the Board is not permitted to rely on the passing of a year (May 18, 2010 to June 22, 2011) to circumvent the reasoning in James; rather, the Board was required to do what the Court instructed in that decision; consider the evidence in the record, determine whether the positive evidence outweighs the negative, and, importantly, explain the basis for that determination. I agree with the applicant that it is insufficient to merely state that the evidence “is mixed” and therefore the presumption of state protection has not been rebutted. 14 In the case before me, the Board fails to engage with the documentary evidence to explain why it prefers the portions that indicate state protection is available; rather, the Board states it would be “problematic” to grant protection in the face of mixed evidence. Evidence regarding state protection is rarely unequivocal. To require an evidentiary record that is “entirely negative” is to place an impossible burden on claimants and is contrary to the jurisprudence of this Court. 15 I note that in Hooper v. Canada (Minister of Citizenship & Immigra- tion), 2007 FC 1359 (F.C.), cited in the above passage from James, Jus- tice Yves de Montigny rejected the kind of reasoning similar to that em- ployed by the Board in this case: The respondent argued that the Board did turn its mind to the existence of contradictory evidence, as evidence by its statement that the “documentary evidence is mixed” in the matter relating to domestic violence. But this is not enough, for a number of reasons... 16 As in previous cases of this Court regarding Saint Vincent, there was considerable evidence before the Board that the state is unable to protect women from domestic violence. In order for the Board’s decision to have the requisite justification, intelligibility and transparency to be considered reasonable, it needed to explain why the favourable evidence of state protection was preferred over evidence that the state is unable to protect. 17 The respondent submits that the mixed nature of the evidence was not itself determinative; rather, it was considered together with the significant length of time since the applicant last sought protection. The respondent submits that since the evidence regarding protection for domestic Wright v. Canada (MCI) Donald J. Rennie J. 123

violence victims is no longer predominantly negative, it was reasonable to emphasize that many years have passed since the applicant last sought protection. I agree that the applicant’s attempts to seek protection are less probative because they occurred so long ago; however, as already discussed, the current documentary evidence is no less predominantly negative than it was in James. The Board still needed to consider the current evidence of whether protection would be reasonably forthcoming. 18 Furthermore, the respondent’s reliance on John v. Canada (Minister of Public Safety & Emergency Preparedness), 2010 FC 1088 (F.C.), is misplaced. The Court found in that case that the passage of time but- tressed the conclusion that the applicant was no longer at risk of abuse by her mother, and not, as the respondent asserts, because state protection was available. In that case, the applicant had never approached the state for protection and the factual context of that case is far different from the one before the Court. 19 Finally, I agree with the respondent that there were other errors in the Board’s decision in James and therefore the Court’s conclusion was not based solely on its findings regarding the treatment of the documentary evidence. However, that does not detract from the import of the reasoning or the relevance of those findings to this case. The error discussed by Justice Mainville regarding the documentary evidence of state protection was the same error committed by the Board in this case and there is no other basis for the Board’s decision upon which it could be upheld. The application is therefore granted.

[Indexed as: Subramaniam v. Canada (Minister of Citizenship & Immigration)] Pushparajah Subramaniam, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-7725-11 2012 FC 843 Donald J. Rennie J. Heard: June 6, 2012 Judgment: July 4, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Changes in country conditions –––– Applicant was Tamil citizen of Sri Lanka who claimed that he and his family had suffered persecution and extortion by Liberation Tigers of Tamil Eelam (LTTE) and Sri Lankan army — Applicant’s brother fled to England in 2006 after he was accused of supporting LTTE — Applicant claimed that he was arrested by army in August 2007 and accused of giving money to LTTE; he was beaten and interrogated and was released after his wife paid bribe — Refugee Protection Division (RPD) dismissed applicant’s claim — Applicant brought application for judicial review of decision of RPD — Appli- cation was granted — Application could be determined solely based on RPD’s analysis of whether there were changed circumstances in Sri Lanka such that reasons for protection ceased to exist — RPD erred when, having found changed circumstances, it failed to consider compelling reasons exception under s. 108(4) of Immigration and Refugee Protection Act — RPD had obligation to consider compelling reasons exception in every case in which claimant was found to have suffered past persecution — Applicant testified to experiencing torture while in detention and RPD made no adverse credibility finding in respect of that testimony; thus RPD erred by failing to consider s. 108(4) of Act. Cases considered by Donald J. Rennie J.: Alharazim v. Canada (Minister of Citizenship & Immigration) (2010), 378 F.T.R. 45 (Eng.), 2010 CarswellNat 4735, 2010 CarswellNat 4736, 2010 CF 1044, 2010 FC 1044 (F.C.) — considered Fernandopulle v. Canada (Minister of Citizenship & Immigration) (2005), 253 D.L.R. (4th) 425, 2005 CarswellNat 610, 2005 FCA 91, 2005 CarswellNat 4411, 2005 CAF 91, 331 N.R. 385, [2005] F.C.J. No. 412 (F.C.A.) — considered Subramaniam v. Canada (MCI) Donald J. Rennie J. 125

Kumarasamy v. Canada (Minister of Citizenship & Immigration) (2012), 2012 CarswellNat 1867, 2012 CF 290, 2012 FC 290, 2012 CarswellNat 645 (F.C.) — considered Yamba v. Canada (Minister of Citizenship & Immigration) (2000), 2000 Car- swellNat 543, 254 N.R. 388, 181 F.T.R. 132 (note), [2000] F.C.J. No. 457 (Fed. C.A.) — considered Statutes considered: Immigration Act, R.S.C. 1985, c. I-2 s. 2(3) — referred to Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 97 — considered s. 108(1)(e) — considered s. 108(4) — considered

APPLICATION for judicial review of decision of Refugee Protection Division dismissing applicant’s claim for refugee protection.

Michael Crane, for Applicant Alex Kam, for Respondent

Donald J. Rennie J.:

1 The applicant seeks judicial review of a decision of the Refugee Pro- tection Division of the Immigration and Refugee Board of Canada (the Board), dated October 12, 2011, which found that the applicant was not a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). For the reasons that follow, the application is granted.

Facts 2 The applicant, Pushparajah Subramaniam, is a Tamil citizen of Sri Lanka. He states that he and his family suffered persecution and extortion for many years by the Liberation Tigers of Tamil Eelam (LTTE), and the Sri Lankan army. His brother fled to England in 2006 after he was accused of supporting the LTTE. 3 The applicant states that he was arrested by the army in August 2007 and accused of giving money to the LTTE. He was beaten and interrogated, and was released after his wife paid a bribe. 126 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Decision Under Review 4 After reviewing the applicant’s allegations, the Board found that the applicant’s fear of persecution was not well-founded, based on credibility concerns. The Board found in the alternative that there was a change in circumstances in Sri Lanka and further found that the risk alleged by the applicant was a generalized risk.

Credibility 5 The Board noted that the two incidents of detention experienced by the applicant ended in his being released, albeit through the payment of bribes. The Board also noted that the applicant was not stopped by security forces when entering Colombo or confronted by them during his stay there. He also had no problem leaving the country, albeit with the help of an agent. Based on all these factors the Board found that there was no warrant for the applicant’s arrest and he was not on the “security watch list” of the security forces, leading the Board to conclude that his fear of persecution is not well-founded. 6 The Board also drew a negative inference from the fact that the applicant stated in his Personal Information Form (PIF) that he had stayed with his agent in Colombo, but at the hearing he said he stayed with a distant relative of his wife.

Change of Circumstances 7 The Board found that if credibility was not determinative, the change of circumstances would be. The Board cited section 108(1)(e) of the IRPA which states that a refugee claim will be rejected if “the reasons for which the person sought refugee protection have ceased to exist.” The Board noted that whether there is a change of circumstances is a factual determination and the durability, effectiveness and substantiality of the change are relevant. The Board also noted the Court of Appeal’s decision in Fernandopulle v. Canada (Minister of Citizenship & Immigration), 2005 FCA 91 (F.C.A.), which found that past persecution does not create a legal presumption of future persecution. 8 The Board acknowledged that many Tamils faced persecution by the LTTE, Sri Lankan security forces and paramilitary groups. The Board found that, based on the applicant’s circumstances, and the evidence of the current situation in Sri Lanka, it is less than likely that he will be harmed pursuant to section 97 of the IRPA. Subramaniam v. Canada (MCI) Donald J. Rennie J. 127

9 The Board noted the evidence that, due to the significant improvements in the security of Sri Lanka there is no longer the need for group- based protection for Tamils but rather claims should be assessed based on certain risk profiles such as those with suspected LTTE links. The Board also cited evidence that: a. Check points were being removed; b. Refugees were returning to Sri Lanka in large numbers; c. Some former LTTE members have been detained or disappeared, but other evidence suggests that former LTTE members have been rehabilitated and reintegrated (although there are reports of insufficient assistance in reintegration); d. Security problems in the north have significantly decreased; e. Tourism in the north has increased; f. There are remaining police problems, including corruption and a lack of police that speak Tamil, but the government is aggres- sively recruiting Tamil-speaking police officers; g. Beating and torture of detainees during interrogation was common, but there was conflicting evidence about the severity of the torture; and h. There is some indication that returnees face scrutiny, but the more reliable evidence was that only those with warrants for their arrest or suspected LTTE links are at risk upon return. 10 The Board concluded that the changes are durable and meaningful in so far as the applicant is concerned and therefore the applicant does not face persecution or risk under sections 96 and 97 of the IRPA. 11 The applicant’s claim was therefore refused.

Standard of Review and Issue 12 The determinative issue in this application is whether the Board erred by failing to consider section 108(4) of the IRPA. While there has been some disagreement on the appropriate standard of review for this question, the Federal Court of Appeal’s reasoning in Yamba v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 457 (Fed. C.A.), suggests a correctness standard. The Board is obligated to consider section 108(4) in every case in which it finds changed circumstances under section 108(1)(e). Thus, while any conclusion reached under section 108(4) would be reviewed on a standard of reasonableness, there is no deference in whether to consider section 108(4). 128 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Analysis 13 While the applicant raises several alleged errors by the Board, in my view the application can be determined solely based on the Board’s analysis of whether there are changed circumstances in Sri Lanka such that the reasons for protection have ceased to exist, pursuant to section 108(1)(e) of the IRPA. 14 The respondent argues that credibility was determinative of the application. However, the Board’s credibility finding was that it did not believe the applicant was currently on a watch list or wanted by the authorities. As the applicant submits, he did not allege that he was currently wanted by police; rather, he feared persecution based on his past experiences of persecution by security forces and militant groups. The Board did make one negative credibility finding regarding an inconsistency in the applicant’s testimony but, reading the Board’s reasons as a whole, the determinative finding was that the applicant does not fit any of the current risk profiles due to the change of circumstances in Sri Lanka. 15 In my view, the Board erred when, having found changed circumstances under section 108(1)(e), it failed to consider the “compelling reasons” exception under section 108(4) of the IRPA. The relevant portions of section 108 state: Rejection 108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: [...] (e) the reasons for which the person sought refugee protection have ceased to exist. [...] Exception (4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment. Rejet 108. (1) Est rejetée la demande d’asile et le demandeur n’a pas qual- ité de réfugié ou de personne a` protéger dans tel des cas suivants: Subramaniam v. Canada (MCI) Donald J. Rennie J. 129

[...] e) les raisons qui lui ont f ait demander l’asile n’existent plus. [...] Exception (4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant a` des persécutions, a` la torture ou a` des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel il est demeuré. 16 There is no question that the Board found that the reasons the applicant sought refugee protection have ceased to exist, pursuant to section 108(1)(e). Therefore, as mandated by the Court of Appeal in Yamba, the Board was obligated pursuant to section 108(4) (section 2(3) under the previous Act) to consider whether there were compelling reasons due to the past persecution and torture of the applicant, not to apply section 108(1)(e). The Court of Appeal stated in Yamba, at paragraph 6: In summary, in every case in which the Refugee Division concludes that a claimant has suffered past persecution, but this has been a change of country conditions under paragraph 2(2)(e), the Refugee Division is obligated under subsection 2(3) to consider whether the evidence presented establishes that there are “compelling reasons” as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes subsection 2(3). That being said the evidentiary burden remains on the claimant to adduce the evidence necessary to establish that he or she is entitled to the benefit of that subsection. 17 Thus, the obligation to consider the “compelling reasons” exception arises in every case in which a claimant is found to have suffered past persecution (as the Board accepted in this case, not having made any clear finding disbelieving the applicant’s testimony about his detention and torture). The Board therefore erred by failing to consider section 108(4) of the IRPA. 18 I note that there are some cases of this Court that have held that it will only be an error to fail to consider section 108(4) if there is prima facie evidence of “appalling” or “atrocious” past persecution, since that exception is only intended to arise in extraordinary circumstances: Alharazim v. Canada (Minister of Citizenship & Immigration), 2010 FC 1044 (F.C.), para 49. The reasoning in this line of cases was not followed in Kumarasamy v. Canada (Minister of Citizenship & Immigration), 2012 FC 290 (F.C.). 130 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

19 I find that the apparent tension between the decision in Yamba and Alharazim does not affect the outcome of this application, however. The applicant testified to experiencing torture while in detention and the Board made no adverse credibility finding in respect of that testimony. Thus, even applying the stricter standard of prima facie evidence of appalling or atrocious past persecution the applicant likely satisfies that standard and the Board therefore erred by failing to consider section 108(4) of the IRPA. The application is therefore granted.

[Indexed as: Chen v. Canada (Minister of Citizenship & Immigration)] Yu Chen, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5918-11 2012 FC 510 James Russell J. Heard: March 6, 2012 Judgment: May 2, 2012 Immigration and citizenship –––– Refugee protection — Credibility — Basis of negative credibility finding — Inconsistencies, contradictions, or omissions –––– Applicant, citizen of China who converted to Christianity in 2009, alleged religious persecution — Refugee Protection Division (RPD) found that applicant was not credible due to inconsistencies in testimony and limited knowledge of Christianity — RPD found that applicant did not attend underground church in China — RPD determined that applicant joined Christian church in Canada for purposes of making fraudulent claim — Applicant applied for judicial review of RPD’s decision rejecting claim — Application granted — In credibility analysis, RPD engaged in speculation, microscopic analysis and inferences drawn from omissions in applicant’s testimony — RPD looked at what applicant knew about Christianity and Bible and did not analyze whether applicant’s faith was genuine — Applicant demonstrated reasonable level of knowledge of Christianity — Flawed analysis tainted credibility finding to extent as to render decision unreasonable — Matter was returned for reconsideration by different panel. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Religion –––– Applicant, citizen of China who converted to Christianity in 2009, alleged religious persecution — Refugee Protection Division (RPD) found that applicant was not credible due to inconsistencies in testimony and limited knowledge of Christianity — RPD found that applicant did not attend underground church in China — RPD found that applicant joined Christian church in Canada for purposes of making fraudulent claim — Applicant applied for judicial review of RPD’s decision rejecting claim — Application granted — In credibility analysis, RPD engaged in speculation, microscopic analysis and inferences drawn from omissions in applicant’s testimony — RPD looked at what applicant knew about Christianity and Bible and did not analyze whether applicant’s faith was genuine — RPD made review- 132 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

able error by asserting that documentary evidence indicated no recent evidence of arrests or incidents of persecution of Christians in applicant’s home province when annual report before RPD stated contrary — There was also evidence before RPD that some religious persecution was unreported — RPD’s unreasonable findings as to credibility and fact that persecution existed rendered RPD’s decision unreasonable — Matter was returned for reconsideration by different panel. Cases considered by James Russell J.: Aleziri v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 4513, 2009 CF 38, 2009 FC 38, 2009 CarswellNat 172 (F.C.) — considered Attakora v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 168, 1989 CarswellNat 736, [1989] F.C.J. No. 444 (Fed. C.A.) — considered Cao v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 3032, 2010 CF 349, 2010 CarswellNat 837, 2010 FC 349 (F.C.) — considered Diaz v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1243, 2008 CarswellNat 4070, (sub nom. Rodriguez Diaz v. Canada (Minister of Citizenship & Immigration)) 336 F.T.R. 259 (Eng.), 2008 CF 1243, 2008 CarswellNat 4942, (sub nom. Rodriguez Diaz v. Canada (Minister of Citizenship & Immigration)) [2009] 3 F.C.R. 395, 75 Imm. L.R. (3d) 225, [2008] F.C.J. No. 1543 (F.C.) — considered Fosu v. Canada (Minister of Employment & Immigration) (1994), 27 Imm. L.R. (2d) 95, (sub nom. Fosu v. Ministre de l’Emploi & de l’Immigration) 90 F.T.R. 182, 1994 CarswellNat 214, [1994] F.C.J. No. 1813 (Fed. T.D.) — considered Hassan v. Canada (Minister of Citizenship & Immigration) (2011), 2011 FC 613, 2011 CarswellNat 1838, 2011 CarswellNat 3093, 2011 CF 613 (F.C.) — considered Jin v. Canada (Minister of Citizenship & Immigration) (2005), 2005 FC 249, 2005 CarswellNat 413, 2005 CF 249, 2005 CarswellNat 4751 (F.C.) — considered Khosa v. Canada (Minister of Citizenship & Immigration) (2009), 82 Admin. L.R. (4th) 1, 2009 SCC 12, 2009 CarswellNat 434, 2009 CarswellNat 435, 304 D.L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, (sub nom. Canada (Citizenship & Immigration) v. Khosa) [2009] 1 S.C.R. 339, [2009] S.C.J. No. 12 (S.C.C.) — referred to Li v. Canada (Minister of Citizenship & Immigration) (2006), 2006 FC 868, 2006 CarswellNat 1971, 55 Imm. L.R. (3d) 154, 2006 CF 868, 2006 Car- swellNat 4804 (F.C.) — considered Chen v. Canada (MCI) 133

Li v. Canada (Minister of Citizenship & Immigration) (2010), 2010 CF 205, 2010 CarswellNat 405, 2010 FC 205, 2010 CarswellNat 1523 (F.C.) — considered Mahmood v. Canada (Minister of Citizenship & Immigration) (2005), 2005 Car- swellNat 3693, 2005 FC 1526, 2005 CarswellNat 5333, 2005 CF 1526, [2005] F.C.J. No. 1883 (F.C.) — considered Mensah v. Canada (Minister of Employment & Immigration) (1989), 1989 Car- swellNat 756, [1989] F.C.J. No. 1038 (Fed. C.A.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Orelien v. Canada (Minister of Employment & Immigration) (1991), 1991 Car- swellNat 810, 15 Imm. L.R. (2d) 1, 135 N.R. 50, [1992] 1 F.C. 592, 1991 CarswellNat 75, [1991] F.C.J. No. 1158 (Fed. C.A.) — considered Sarmis v. Canada (Minister of Citizenship & Immigration) (2004), 2004 FC 110, 2004 CarswellNat 167, 245 F.T.R. 312, 40 Imm. L.R. (3d) 111, 2004 Car- swellNat 2524, 2004 CF 110, [2004] F.C.J. No. 109 (F.C.) — considered Wang v. Canada (Minister of Citizenship & Immigration) (2011), 2011 Car- swellNat 3557, 2011 FC 1030, 2011 CF 1030, 2011 CarswellNat 4664, 2 Imm. L.R. (4th) 261 (F.C.) — considered Wu v. Canada (Minister of Citizenship & Immigration) (2009), 2009 Car- swellNat 2913, 2009 FC 929, 2009 CarswellNat 5423, 2009 CF 929, [2009] F.C.J. No. 1143 (F.C.) — considered Yu v. Canada (Minister of Citizenship & Immigration) (2010), 2010 Car- swellNat 1407, 2010 CF 310, 2010 FC 310, 2010 CarswellNat 632, [2010] F.C.J. No. 363, [2010] A.C.F. No. 363 (F.C.) — considered Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 96 — considered s. 96 “r´efugi´e” — considered s. 97 — referred to s. 97(1) — considered

APPLICATION for judicial review of Refugee Protection Division’s decision that applicant was not Convention refugee or person in need of protection. 134 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Jayson Thomas, for Applicant Brad Gotkin, for Respondent

James Russell J.: Introduction 1 This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 22 July 2011 (Decision), which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

Background 2 The Applicant is a 22-year-old citizen of the Peoples’ Republic of China (PRC). Before he came to Canada, he lived in Liaoning Province in the PRC. The Applicant seeks protection in Canada on the basis of the persecution he says he will suffer in the PRC because he is a Christian. 3 In 2008, the Applicant witnessed one of his co-workers lose a leg in an industrial accident and he fell into depression as a result. He says that his best friend, Guang Yao Zhao (Zhao), shared Christianity with him in early 2009, and that this helped him to cope with the trauma of the accident. After he converted to Christianity, the Applicant says he began attending an unregistered underground Christian church in January 2009. 4 On 10 May 2009, agents of the Public Security Bureau (PSB) raided the Applicant’s church. He says that, before the raid began, a lookout notified the church leader that the PSB agents were closing in on them. The Applicant and several others escaped because they had planned an escaperoute before the meeting. After his escape, the Applicant says he went into hiding at the house of his maternal uncle. 5 After he went into hiding, PSB agents went looking for the Applicant at his parents’ home on 12 May 2009. The agents said the Applicant was involved in illegal religious activities and that they had arrested other members of his church, and had evidence against him. After this event, the Applicant and his parents decided together that he should flee the PRC. He hired a smuggler and travelled first to Tokyo and then to To- ronto. He arrived in Canada on 14 September 2009 and claimed protection on 22 October 2009. 6 Before the RPD heard his claim, the Applicant provided several documents as evidence. He gave the RPD his Resident Identity Card (RIC), Chen v. Canada (MCI) James Russell J. 135

Household Registration Booklet (Hukou), a Graduation Certificate, and an Employee ID card. He also submitted a letter from the Pentecostal church he attended in Canada, a Baptism Certificate, and several photos of him participating in church activities. 7 The RPD heard the Applicant’s claim on 17 June 2011. At the hearing, the Applicant, his legal counsel, and an interpreter were present. The RPD considered his claim and, on 22 July 2011, rejected it. The RPD notified the Applicant of the Decision on 12 August 2011.

Decision under Review 8 The RPD denied the Applicant’s claim for protection because it found he was not a Christian and he did not face a risk of persecution in the PRC.

Credibility 9 The RPD focussed its analysis on the Applicant’s credibility. After reviewing a number of inconsistencies between his oral testimony and his Personal Information Form (PIF), the RPD found that he was not a credible witness. 10 The RPD noted that the Applicant has 12 years of formal education and may have faced difficulties at the hearing from cultural factors, the hearing room atmosphere, and the stress of oral questioning. It said it had taken these factors into account when assessing his credibility. 11 In his PIF, the Applicant wrote that his friend Zhao, who had been a Christian for a year, had shared the gospel with him in January 2009. At the hearing, the Applicant said that Zhao had not told him about Christi- anity sooner for fear he would unintentionally tell someone else. The RPD asked the Applicant why Zhao trusted him more in 2009 than in 2008, and he said that his friend saw he was depressed and wanted to help him. The RPD found this explanation was not credible because it would be reasonable to expect Zhao to have confidence in him, and it is every Christian’s duty to spread the Gospel. 12 The Applicant also wrote in an amendment to his PIF that Zhao told him about the underground church on the second occasion when they talked about Christianity. However, at the hearing and in his unamended PIF, the Applicant said he learned about the underground church the first time Zhao and he talked about Christianity. Although the Applicant explained this discrepancy by saying he was told about the church the first time and about the whole process of the service the second time, the RPD 136 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

rejected this explanation. The RPD noted that the Applicant confirmed he was told about the church the first time, but also amended his PIF to say it was the second time. From these inconsistencies, the RPD drew a negative inference. 13 The RPD asked the Applicant what he understood God to be when his friend first told him about Christianity. He answered that he had not believed in God before, but he trusted Zhao and so believed what he said. The Applicant also said that he did not know if God was human or a god, but Zhao told him the story of the lost sheep, so he began to understand the truth. He said he came to believe that all will be saved, regardless of what wrong things have been done. The RPD said the Applicant was unable to describe his concept of God when he learned about Christian- ity, and so it drew a negative inference. 14 The RPD also asked the Applicant to describe a typical service at his church. He said that the believers would pray, read and hear about the Bible, pray together, and recite the Apostles Creed. He also said they would arrange the next meeting place. Later in the hearing, the Applicant said that he had acted as a lookout once; he also explained the lookouts’ role and said a lookout was appointed near the end of meetings. The RPD noted that, when he first described a typical service, he had not mentioned how or when lookouts were appointed. From this omission, the RPD drew a negative inference, saying it was reasonable to expect the Applicant to mention lookouts when he talked about arranging the next venue. 15 When the RPD asked him about the raid on his church, the Applicant first said that the lookout alerted the leader when the believers were discussing the story of the calming of the storm. In his PIF, he wrote that the call came in while they were sharing testimonials. When pressed on this inconsistency at the hearing, he said that they had just finished sharing their testimonials and were about to discuss the story. The RPD said he had not mentioned testimonials the first time he described the service. It rejected his explanation and drew a further negative inference; the RPD found the raid had never occurred. 16 The Applicant said that, when the PSB raided his church, the leader told the believers that the venue was surrounded. He also said that they went out the back of the building as provided by their escape plan. The escape plan called for the believers to escape out the back door of the building if the PSB came from the front, or the front door if the PSB came from the back. He said that if the building was surrounded they Chen v. Canada (MCI) James Russell J. 137

were to force their way out through the door with fewer PSB agents. He also said that the building could not be surrounded because of its location. He later said that some believers were to flee, while those who stayed behind were to pretend that it was an ordinary, non-religious, gathering. 17 The RPD found the Applicant’s account of the raid and escape plan were implausible. It said that, if the PSB saw some believers fleeing, the agents could not reasonably be expected to believe that an ordinary social gathering was taking place. The Applicant’s testimony on this point was confusing and evolving, so the RPD drew an additional negative inference. 18 When he described his flight from the church after the raid, the Appli- cant said that he handed his Bible to the leader. He also said that the leader told everyone to hand their Bibles to her when the lookout called. He further said that not everyone gave the leader their Bibles, and she told them to put the Bibles on a desk because she could not hold them all. The Applicant then testified that he handed the leader his Bible and she put it on the desk right away. The RPD found that this aspect of his testimony also evolved, so it drew a further negative inference. 19 The Applicant also said the escape plan included handing over the Bibles. The RPD drew a negative inference from his failure to mention handing over bibles when he described the plan earlier in the hearing. 20 The Applicant said that he had told his parents about Christianity once and they believed what he said, but the RPD found that this was implausible. It was not plausible that his parents became Christians after hearing about Christianity from their son once. The RPD also found that his parents would have acted on their beliefs if they actually became Christians. They did not act on their beliefs, so the Applicant’s story was not credible. 21 In Orelien v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 1158 (Fed. C.A.) the Federal Court of Appeal held at paragraph 20 that “one cannot be satisfied that the evidence is credible or trustworthy unless satisfied that it is probably so, not just possibly so.” The RPD also noted that testimony from a witness does not have to be accepted simply because it is not uncontradicted. Further, the RPD is entitled to make reasonable findings based on implausiblities, common sense, and rationality. Based on all of its negative inferences, the RPD found that the Applicant had not attended an underground church in the PRC and was not wanted by the PSB. 138 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

Sur Place claim 22 After examining the Applicant’s credibility, the RPD analysed whether the Applicant was a genuine Christian in Canada and whether he would be at risk if he were returned to the PRC. 23 The RPD pointed out that there is a requirement of good faith on the part of refugee claimants and that claimants who manipulate circumstances to create a real chance of persecution show a lack of good faith. The RPD found that the Applicant had not made his claim in good faith. 24 The RPD found that the Applicant had joined a Christian church in Canada solely to support a fraudulent refugee claim. It based this finding on its previous findings that he was not a practising Christian in the PRC and had not made his claim in good faith. In coming to this conclusion, the RPD also tested the Applicant’s knowledge of Christianity. It found that he did not have the knowledge to be expected of a person with a grade twelve education and who had practised Christianity for two years. The RPD found that the Applicant did not believe in the resurrection of the body — a Christian concept. He also said at the hearing that the soul, but not the body, would be in heaven at the end of the world. The RPD pointed out that the New Testament says that, at the end of the world, the dead will rise again. 25 At the hearing, the RPD also asked the Applicant about the Bible. He said that the Old Testament dealt with God’s covenant with the Jews and that a covenant was conduct, control, or a benchmark for conduct. The RPD found that the Applicant had memorized some of the Old Testa- ment’s contents which he did not understand. 26 When the RPD asked the Applicant about the New Testament, he said it included Corinthians I and II and Job. Because Job is actually a book in the Old Testament, the RPD pressed him on this answer; he said it might be in the Old Testament and that he had made a mistake. When asked what Corinthians I and II are about, the Applicant said that he did not know because he does not understand many things and needs to study the meaning of the Bible more. The RPD found that if he had read Corin- thians he would remember it. The RPD also found that if he was reading the Bible every day, as he said he was, he would be familiar with the other books in the New Testament. 27 The RPD asked the Applicant what holy days his church in Canada celebrated and he listed several days, including Passover. The RPD noted that this is not a holy day in the Pentecostal Church and that he had not mentioned Good Friday, which is a holy day in that church. The Appli- Chen v. Canada (MCI) James Russell J. 139

cant also said that Pentecost was a holy day, but he did not know where the story of Pentecost occurred in the Bible. The RPD found that he should have known where this story occurred because he attended a Pen- tecostal church where Pentecost had been celebrated the week before the hearing. 28 The RPD also found that the Applicant did not have a clear concept of the Trinity. Although he knew that the Trinity consists of the Father, the Son, and the Holy Spirit, he did not know all three existed eternally. The Applicant said that before Jesus was born he was a star in the sky. The RPD said this was clearly wrong and if the Applicant had read the Gospel of John he would have known this was incorrect. 29 Although the Applicant provided a letter from the pastor of his church in Canada and a baptism certificate from the same church, the RPD gave little weight to these documents because he lacked knowledge of Christi- anity and there was no indication of how the pastor had monitored his attendance. The RPD also said that these documents did not show the Applicant’s motivation for attending church and for being baptised. Based on the conclusion that the Applicant was not a member of an underground church in the PRC, and that the PSB is not pursuing him, the RPD found that the Applicant had engaged in religious activities in Can- ada to manufacture a false refugee claim.

Risk in Liaoning Province 30 In the alternative to its finding that the Applicant was not a genuine Christian, the RPD analysed the risk to him in Liaoning province if he returned to the PRC and became a genuine practising Christian. 31 The RPD noted that the Executive Secretary of the Hong Kong Chris- tian Council said on 14 June 2010 that authorities in the PRC demonstrate a high degree of tolerance towards unregistered Christian groups. The RPD relied on its own Request for Information (RIR) CHN103501.E — Situation of Catholics and treatment by authorities, particularly in Fujian and Guangdong. The RPD also found that RIR CHN102492.E — Reports of raids on Protestant house churches; fre- quency and location of raids establishes that although incidents of persecution in the PRC were recorded between 2005 and 2009, none of the recorded incidents of persecution were in Liaoning Province. The RPD found that there was no persuasive, recent evidence of persecution in Liaoning Province and that if persecution had occurred in Liaoning it would have been documented. 140 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

32 The RPD then examined the Applicant’s description of his house church and its location in a province where there was no persuasive evidence of arrests or persecution. The RPD examined a report from the United States’ Department of State, the International Religious Freedom Report 2009, which indicated that unregistered groups have expanded in the PRC and many do not practise in secret. The RPD concluded that the Applicant would be able to practise Christianity in the church of his choosing in the PRC without risk of persecution. The RPD said that it was guided by this Court’s decisions in Yu v. Canada (Minister of Citizenship & Immigration), 2010 FC 310 (F.C.) and Li v. Canada (Minister of Citizenship & Immigration), 2010 FC 205 (F.C.). 33 The RPD concluded that the Applicant had not established a serious possibility that he would be persecuted or that he faced a risk to his life or of cruel and unusual treatment or punishment if he were returned to the PRC. He also did not face a risk of torture on return. On this basis, the RPD denied the Applicant’s claim for protection.

Issues 34 The Applicant raises the following issues: a. Whether the RPD’s assessment of his religious identity in the PRC was reasonable; b. Whether the RPD’s assessment of his religious identity in Canada was reasonable; c. Whether the RPD’s assessment of the risk the Applicant faces in Liaoning Province was reasonable.

Standard of Review 35 The Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.), held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. 36 In Aleziri v. Canada (Minister of Citizenship & Immigration), 2009 FC 38 (F.C.), Justice Maurice Lagac´e held that the standard of review with respect to the findings of religious identity and risk in a sur place claim was reasonableness (see paragraphs 11 and 16). Further, in Cao v. Chen v. Canada (MCI) James Russell J. 141

Canada (Minister of Citizenship & Immigration), 2010 FC 349 (F.C.), Justice Robert Mainville held that the standard of review on the question of a claimant’s religious identity was reasonableness (see paragraphs 17, 19 and 20). The standard of review with respect to the first two issues is reasonableness. 37 In Sarmis v. Canada (Minister of Citizenship & Immigration), 2004 FC 110 (F.C.), at paragraph 11, Justice Michel Beaudry held that the standard of review on the risk of persecution was patent unreasonable- ness. Justice David Near made a similar finding at paragraph 9 in Hassan v. Canada (Minister of Citizenship & Immigration), 2011 FC 613 (F.C.). The standard of review on the third issue is reasonableness. 38 When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decisionmaking process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dun- smuir, above, at paragraph 47, and Khosa v. Canada (Minister of Citizenship & Immigration), 2009 SCC 12 (S.C.C.) at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

Statutory Provisions 39 The following provisions of the Act are applicable in this proceeding: Convention refugee 96. A Convention refugee is a person who, by reason of a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or [...] Person in Need of Protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally 142 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care [...] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention — le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance a` un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; [...] Personne a` protéger 97. (1) A qualité de personne a` protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise a` la torture au sens de l’article premier de la Conven- tion contre la torture; b) soit a` une menace a` sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, Chen v. Canada (MCI) James Russell J. 143

(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légi- times — sauf celles infligées au mépris des normes in- ternationales — et inhérents a` celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. [...]

Arguments The Applicant Christian Identity in the PRC Introduction to Christianity 40 The Applicant says that, when it found he was not a Christian in the PRC, the RPD unreasonably relied on its own beliefs about how Chris- tians should think and act. In doing so, the RPD engaged in speculative reasoning, which this Court has said is unacceptable. The RPD correctly said that the Applicant’s oral testimony about when Zhao told him about the underground church was inconsistent with his PIF. However, the RPD failed to link this inconsistency with his Christian faith. The RPD did not say whether the negative inference it drew from this inconsistency was in relation to the Applicant’s identity, his PIF, or some other issue. In Diaz v. Canada (Minister of Citizenship & Immigration), 2008 FC 1243 (F.C.), Justice John O’Keefe held at paragraph 16 that It is trite law that all critical findings made by the Board must be supported with a clear evidentiary basis. Failure to lay out a clear and specific evidentiary basis is patently unreasonable and renders each of the findings to nothing more than sheer speculation [...]. 41 Since the RPD failed to give clear reasons for rejecting the Appli- cant’s evidence, the Decision must be returned for reconsideration.

Underground Church Service 42 It is improper for the RPD to draw negative inferences from omissions in testimony. The RPD drew a negative inference from the Appli- cant’s failure to mention the appointment of lookouts when he was asked to describe the typical service at his underground church in the PRC. He 144 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

points to Mensah v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 1038 (Fed. C.A.), where the Federal Court of Appeal said that This seems to us, at first blush, to be a classic case of “Catch 22”, from which it is impossible for the applicant to extricate himself: if he gives as few details at his hearing as at his examination under oath, his claim fails for lack of precision; if he gives more, it fails for lack of credibility. 43 The Applicant also notes that Justice Beaudry held at paragraphs 29 to 31 of Li v. Canada (Minister of Citizenship & Immigration), 2006 FC 868 (F.C.) that The applicant’s omission to mention his father’s loss of employment in his PIF was certainly not helpful to his claim, but this kind of omission should not be fatal to his claim in the same way that a direct contradiction would be. It is further interesting to note that the Board does not comment on the credibility of the substance of the applicant’s allegation. Furthermore, while the applicant did apparently failed [sic] to include his addresses in Shanghai and in Guangdong province, he did mention that he fled there in his PIF. Again, the Board relied on a technical omission rather than a contradiction to justify its adverse credibility finding, and failed to explicitly come to a finding regarding the credibility of his allegation of having fled to Shanghai and Guangdong. 44 The RPD also erred by basing a negative inference on its own standard of behaviour. The RPD made a speculative finding when it found that the Applicant should have mentioned the lookout’s appointment in his description of the underground church service. This is the same error the RPD made with respect to the inconsistency it identified in his testimony about when Zhao told him about the underground church. Mahmood v. Canada (Minister of Citizenship & Immigration), 2005 FC 1526 (F.C.) cautions against this kind of error. 45 When it drew a negative inference from the Applicant’s failure to mention the appointment of lookouts, the RPD was overzealous and microscopic in its evaluation of the evidence. The Federal Court of Appeal cautioned against this kind of error in Attakora v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 444 (Fed. C.A.), when it held that I have mentioned the Board’s zeal to find instances of contradiction in the applicant’s testimony. While the Board’s task is a difficult one, Chen v. Canada (MCI) James Russell J. 145

it should not be over-vigilant in its microscopic examination of the evidence of persons who, like the present applicant, testify through an interpreter and tell tales of horror in whose objective reality there is reason to believe. 46 The Applicant says his testimony about a typical underground church service in the PRC was otherwise consistent, so the inconsistency in his testimony on this narrow point about lookouts should not have led the RPD to a negative inference about his overall credibility.

Bibles 47 The RPD also unreasonably drew a negative inference from his failure to mention how Bibles were to be dealt in his description of the escape plan. Just as it was unreasonable for the RPD to draw a negative inference from his failure to mention the appointment of lookouts, it was also unreasonable for the RPD to draw a negative inference from his failure to describe the plan for the Bibles.

Spreading the Gospel 48 The RPD’s treatment of the Applicant’s testimony about sharing Christianity with his parents was also unreasonable. The RPD did not consider how this testimony established his religious identity. Although the RPD found that it was implausible that the Applicant’s parents would convert to Christianity after being told once, the RPD did not draw any conclusions about the Applicant’s beliefs from this evidence. The RPD also unreasonably based its assessment of this testimony on speculative assumptions about how his parents would act on their beliefs if they had actually converted to Christianity.

Sur Place Claim 49 Even if the RPD’s findings with respect to his Christianity in the PRC are reasonable, they are irrelevant to his refugee claim. The only thing that mattered to his claim for protection was his religious identity in Can- ada and the RPD unreasonably analysed this aspect of his claim. 50 The RPD unreasonably based its assessment of his Christianity in Canada on its finding that he was not a Christian in the PRC. What mattered, however, was whether he was a Christian at the time of the hearing. The RPD’s statement that Having found that the [Applicant] is not a genuine practicing Chris- tian in China [sic] and having found that his claim has not been made in good faith, I find on a balance of probabilities, and in the context 146 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

of findings noted above, that the [Applicant] joined a Christian church in Canada only for the purpose of supporting a fraudulent refugee claim. 51 When it failed to consider his sur place claim independently of its assessment of his Christianity in the PRC, the RPD acted unreasonably.

Knowledge of Christianity 52 The RPD’s assessment of his Christian faith in Canada was also unreasonable because it did not analyse whether his faith was genuine through questioning or by looking at the documentary evidence which was before it. Instead, the RPD looked at what he knew about Christian- ity and the Bible. In Wu v. Canada (Minister of Citizenship & Immigra- tion), 2009 FC 929 (F.C.), at paragraph 22, Justice Michael Kelen held that A reading of the Board’s reasons gives the impression that to be determined to be a Christian one should be able to retain at least some encyclopaedic knowledge of the Bible or Jesus’ teaching. One cannot help but have sympathy for claimant who was struggling to understand and be understood through an interpreter. Determining whether one is a genuine Christian by way of “trivia” is clearly contrary to the above case law. This Court has often overturned a Board Member’s decision as “unfair” and “unreasonable” because the applicant could not answer detailed questions about the Bible. 53 In this case, the RPD’s conclusion that the Applicant was not a genuine Christian was not open to it because he demonstrated a reasonable level of knowledge about Christianity.

Documents Submitted 54 When the RPD assigned little weight to the Applicant’s Baptism Cer- tificate and the letter from his pastor in Canada, it acted contrary to the presumption of truth which the RPD is obligated to apply to claimants’ documents and testimony. The conclusion that these documents did not reveal his motivation is also contrary to the RPD’s own documents. The screening form the RPD gave the Applicant before the hearing directed him to provide documents showing religious activities. If these documents were of little value in showing his religious identity, then it was pointless for the RPD to demand the Applicant produce them. 55 Although the RPD correctly found that a pastor’s assessment of someone’s religious beliefs does not displace the RPD as trier of fact, this does not lead to the conclusion that the letter from the Applicant’s Chen v. Canada (MCI) James Russell J. 147

pastor should be given little weight. The RPD misinterpreted the law in this regard. 56 The RPD also unreasonably allowed its assessment of the Applicant’s religious identity in the PRC to taint its assessment of his Christianity at the time of the hearing. Even if he had initially joined the church in Can- ada to support his claim, this was not relevant to whether he was a genuine Christian at the time of the hearing. If the Court accepts this line of reasoning, then it will preclude the possibility that a person who initially joins a church for fraudulent purposes could develop a genuine faith which would put him at risk of persecution. The RPD’s failure to adequately consider the evidence surrounding the Applicant’s Christianity in Canada means that the Decision should be returned for reconsideration.

Risk on Return 57 The RPD’s alternative finding that he would not face a risk of persecution if returned to the PRC was also unreasonable. The Applicant says that the RPD ignored a letter from Bob Fu, the President of the China Aid Association. This letter says that much of the religious repression in the PRC is unreported and it is incorrect to assume that underground churches can operate freely. 58 The RPD also ignored evidence in its own National Documentation Package (NDP) on the PRC. The International Religious Freedom Re- port 2009, above, says that Police and officials of local [Religious Affairs Bureaus] in some areas disrupted home worship meetings, claiming that participants disturbed neighbors or social order, or belonged to an “evil religion.” Police sometimes detained for hours or days worshippers attending such services and prevented further worship activities. 59 The RPD relied on this report for its conclusion that the Applicant’s risk on return was low. However, this report shows that there was evidence before the RPD which shows restrictions on Christian practice in the PRC. The Applicant points to Fosu v. Canada (Minister of Employment & Immigration), [1994] F.C.J. No. 1813 (Fed. T.D.), where Justice Pierre Denault wrote at paragraph 5 that The fact is that the right to freedom of religion also includes the freedom to demonstrate one’s religion or belief in public or in private by teaching, practice, worship and the performance of rites. As a corol- lary to this statement, it seems that persecution of the practice of religion can take various forms, such as a prohibition on worshipping in public or private, giving or receiving religious instruction or, the 148 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

implementation of serious discriminatory policies against persons on account of the practice of their religion. In the case at bar I feel that the prohibition made against Jehovah’s Witnesses meeting to practise their religion could amount to persecution. That is precisely what the Refugee Division had to analyze. 60 The RPD did not appropriately address whether the Applicant could practise Christianity openly or freely in the PRC. 61 The Applicant also points out that Jin v. Canada (Minister of Citizenship & Immigration), 2005 FC 249 (F.C.) stands for the proposition that, even if there are no recent reports of persecution, this does not show that persecution does not occur. When the RPD analysed the risk he faced by comparing documented incidents of persecution in other areas of the PRC with the lack of documented incidents in Liaoning Prov- ince, it committed a reviewable error.

The Respondent 62 The Respondent argues that the Decision is clear, cogent, and com- prehensive, and that the RPD’s findings of fact were open to it on the evidence before it. The Applicant has not shown that the RPD’s findings were erroneous, perverse, or capricious. The Decision was reasonable and should stand.

Analysis 63 The Decision rests upon three principal findings: 1. The Applicant’s story was not credible, so he could not establish subjective fear: “I find, on a balance of probabilities, that the claimant did not attend an underground church in China, and that he was not being pursued by the PSB on that account”; 2. The Applicant was not a genuine Christian in China or in Canada and his “motives for engaging in religious activities is to manufacture of (sic) fraudulent refugee claim”; 3. Alternatively, “if the claimant decides to become a genuine Chris- tian and practice his faith upon his return to China” then “on a balance of probabilities... the claimant would be able to practice his religion in any church if he were to return to his home in Liao- ning province in China and that there is not a serious possibility that he would be persecuted for doing so.” 64 These grounds are not mutually exclusive or stand-alone alternatives. The RPD rejected the genuineness of the Applicant’s Christian identity Chen v. Canada (MCI) James Russell J. 149

in Canada at least in part because it found he “was not a member of an underground church in China, and that he is not being sought by the PSB on that account” so that “the claimant’s motives for engaging in religious activities is to manufacture of [sic] fraudulent refugee claim.” 65 In addition, one of the reasons the RPD says there is no evidence of arrests or incidents of persecution of Christians in Liaoning province is because it did not accept his personal narrative of persecution or that the PSB is looking for him. This led it to conclude that the Applicant is free to return and practise his religion there. 66 As regards the genuineness of the Applicant’s Christianity in Canada, it is my view that the RPD committed an error similar to the one Justice Beaudry described in Wang v. Canada (Minister of Citizenship & Immi- gration), 2011 FC 1030 (F.C.). In Wang, the RPD erroneously determined whether the Applicant was a genuine Christian by way of trivia and without balancing its negative findings against what the Applicant did know about Christianity: 4 The Board had several concerns regarding his credibility; especially, it found that the applicant was never a genuine practicing Ro- man Catholic. The applicant’s level of knowledge of the Catholic faith did not commensurate with someone who had been a Roman Catholic for three years. For example, the Board made note of the following (Board’s decision, paras 19-28, for a complete list): a. The applicant displayed little knowledge of mass; b. He was asked about the reading of the Gospel by the priest. The applicant testified that the previous Sunday’s reading was from Exodus. The Board noted that this was incorrect, as the Gospel is always from the New Testament; c. He displayed little knowledge of the Old Testament; d. He had little knowledge of the Bible’s characters, such as Mary, Elizabeth and Mary Magdalene; e. He did not know the story of the Good Samaritan; 5 At the resumption of the hearing, the applicant correctly answered questions pertaining to the rosary and to the seven sacraments. The Board gave little weight to the answers, as it concluded that the applicant could have been anticipating the questions. [...] 10 Although the applicant proposes numerous issues to be decided, the Court is of the opinion that the Board’s negative finding of the 150 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

applicant’s knowledge of the Roman Catholic faith is central to the applicant’s dismissal of his claim. 11 In Dong v. Canada (Minister of Citizenship & Immigration), [2010] A.C.F. no 54, at para 20, the Court stated: In assessing a claimant’s knowledge of Christianity, the Board should not adopt an unrealistically high standard of knowledge or focus on a ‘few points of error or misunder- standings to a level which reached the microscopic analysis. 12 In that case, the Board drew a negative inference in relation to the applicant’s identity as a practicing Christian because of his inability to easily describe the core elements of the Christian faith. The Court held that the Board’s determination that the applicant was unable to demonstrate a reasonable level of Christian knowledge, and therefore was not credible, was unreasonable. 13 In the present case, the Court finds that the Board erred in determining that the applicant was not a genuine Roman Catholic by holding him to an unreasonably high standard of religious knowledge. For example, the applicant was asked if the wafer distributed during Holy Communion represented the body of Jesus or if it was the body of Jesus. The applicant answered that it represented the body of Jesus (transcript, Certified Tribunal Record, page 469, line 25). The Board found this answer to be incorrect. The Board erroneously determined the applicant’s knowledge of the Catholic faith by way of “trivia”. In assessing the applicant’s knowledge of Christianity, the Board “erroneously expected the answers of the applicant to questions about his religion to be equivalent to the Board’s own knowledge of that religion” Ullah v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1918, para 11. 14 The applicant was asked several detailed questions about the Christian religion which he answered correctly, for example, the procedure of the Holy Communion (Certified Tribunal Record, page 468, line 45). 67 The RPD committed similar errors in the present case. In addition, the RPD also based its genuineness finding upon its negative credibility finding, which I think was unreasonable. 68 In this regard, I agree with the Applicant that, in its credibility analysis, the RPD engaged in speculation, microscopic analysis and inferences drawn from omissions in the Applicant’s testimony. This flawed analysis taints the credibility finding to such an extent as to render the Decision Chen v. Canada (MCI) James Russell J. 151

unreasonable. The RPD also relied on peripheral matters to reject major aspects of the Applicant’s claim. 69 Paragraph 8 of the Decision is typical in this regard: The claimant testified that the person who introduced him to Christi- anity was his best friend. However, the claimant did not know that his best friend had been a Christian for almost a year before spreading the Gospel to him. The claimant testified that the reason his friend did not tell him sooner that he is a Christian is because he was afraid that the claimant might inadvertently tell someone about it. The claimant was asked why his friend would trust him more to be discreet in 2009 than before. He testified that his friend told him about Christianity because he saw that he was quite depressed and wanted to help him. I find this explanation not credible since the duty of a Christian is to spread the Gospel and since this was his best friend, it would be reasonable to expect that his best friend would spread the Gospel to him and would have sufficient confidence in the claimant not to disclose fact of his friend’s Christianity. 70 Here we can see the RPD speculating and setting itself up as an authority on how best friends and Christians behave in China, and questioning the Applicant’s testimony by using groundless assumptions based upon no evidence at all. In Mahmood, above, at paragraph 16, Justice Blanchard said “Plausibility findings should therefore be made only in the clearest of cases, that is, if the facts as presented are outside the realm of what could reasonably be expected.” It is not outside the realm of plausibility for Zhao to have avoided sharing Christianity with the Appli- cant until he felt there was a need to do so. 71 In paragraph 11 of the Decision, the RPD draws a negative inference from an omission in the Applicant’s testimony: The claimant was asked to describe the typical service at his church. He listed prayer, reading the Bible, discussing the Bible, the organizer explaining the Bible, praying together, reciting the Apostles Creed, and arranging the next venue. Later in the hearing, the claimant explained the role of the lookout. When asked when the lookouts were appointed, the claimant answered that the organizer arranges for the lookouts at the end of the gathering. The claimant had not mentioned appointing lookouts when asked to describe the gathering or the service, even though he had mentioned the organizer arranging for the next venue, and then had stated that there was nothing else. The claimant’s explanation for the omission is that he believes he mentioned it. The claimant did not, and I draw a negative inference, as it is reasonable to expect that, when talking with the next venue, 152 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

he would have at the same time talked about the appointment of the lookouts. I draw a negative inference. 72 There is no basis for the conclusion that it would be reasonable to expect the leader to talk about lookouts when discussing the next venues. In addition, this hardly seems a material point when assessed in the context of what the Applicant did say about the rest of the church service. See Li, above, at paragraph 29. This kind of omission cannot be treated in the same way as a contradiction. 73 The RPD also doubted the Applicant because he was unable to describe to the RPD’s satisfaction what his conception of God was when his friend first told him about Christianity. Bearing in mind the complex- ities inherent in the Christian concept of God, it is hardly surprising that a neophyte might have a different understanding of God than the RPD, so it is no ground at all upon which to doubt his credibility. 74 The Decision might still be salvageable if the final ground — the Ap- plicant’s freedom to practise his religion in Liaoning province if he re- turns — did not contain a reviewable error. However, in my view, it contains two reviewable errors that render it unreasonable. 75 First, it is based upon a repeated assertion that the documentary evidence in the exhibits before the RPD contains no “recent evidence of arrests or incidents of persecution of Christians in Liaoning province.” This finding is contradicted by direct evidence contained in the Annual Report of Persecution by the Government on Christian House Churches within Mainland China for 2007 which was before the RPD. The entry for Liaoning tells us that the following person was persecuted, arrested and sentenced to “one year of education through labor”: Ms. Gu Changrong from Qidaohe Village, Wandianzi Township, Qingyuan Manchurian Autonomous Cournty of Fushun City, was arrested for preaching the gospel to the village party secretary. 76 Counsel for the Applicant referred the RPD to this entry but the RPD did not deal with it. It is impossible to know whether the RPD overlooked it or did not think it was material enough to change its general conclusion. Where the basis for the RPD’s conclusion on risk was the absence of reported incidents of persecution, this information could have made a difference to the finding the Applicant was free to practise his religion in his home province. 77 Second, there was evidence before the RPD that some religious persecution in China goes unreported. So the RPD’s conclusions on this issue would surely have been entirely different if it had not made unreasonable Chen v. Canada (MCI) James Russell J. 153

findings on credibility and had found that the Applicant’s narrative and assertion that the PSB was looking for him were believable. If the RPD had believed the Applicant, this would tend to show that, even though few incidents of persecution are reported in Liaoning province, persecution actually occurs there. This was material to the risk he faced, so the RPD’s unreasonable conclusion means the Decision as a whole is unreasonable. 78 All in all, I think the Decision is unsafe and that it should be returned for reconsideration. 79 Counsel agree there is no question for certification and the Court concurs.

Judgment THIS COURT’S JUDGMENT is that 1. The application is allowed. The Decision is quashed and the matter is returned for reconsideration by a differently constituted RPD. 2. There is no question for certification. Application granted; matter returned for reconsideration by different panel. 154 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

[Indexed as: Romero v. Canada (Minister of Citizenship & Immigration)] Juan Carlos Ballestero Romero, Applicant and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-8277-11 2012 FC 709 Donald J. Rennie J. Heard: June 4, 2012 Judgment: June 7, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Internal flight alternative –––– Applicant was citizen of Venezuela who alleged fear of persecution based on his sexual orientation and HIV status — Applicant and his partner came to Canada in April 2010 and made refugee claims at port of entry — After completing required immigration medical examinations, applicant and his partner learned in June 2010 that they were both HIV-positive — Appli- cant’s claim was refused by Refugee Protection Division (RPD) on basis that state protection was available and that he had viable internal flight alternative (IFA) — Applicant brought application for judicial review of decision of RPD — Application granted — RPD’s decision was unreasonable because it failed to consider applicant’s HIV status, except for reasonableness of proposed IFA, and failed to consider evidence of systemic discrimination in employment for HIV-positive persons — It was incumbent on RPD to consider whether discrimination in employment against HIV-positive persons amounted to persecution, which in turn was relevant to its conclusions regarding state protection and IFA. Administrative law –––– Requirements of natural justice — Right to hearing — Procedural rights at hearing — Reasons for decision –––– Applicant was citizen of Venezuela who alleged fear of persecution based on his sexual orientation and HIV status — Applicant and his partner came to Canada in April 2010 and made refugee claims at port of entry — After completing required immigration medical examinations, applicant and his partner learned in June 2010 that they were both HIV-positive — Applicant’s claim was refused by Refugee Protection Division (RPD) on basis that state protection was available and that he had viable internal flight alternative (IFA) — Applicant brought application for judicial review of decision of RPD — Application granted — RPD’s reasons Romero v. Canada (MCI) 155

in applicant’s partner’s case were not admissible to shore up deficiencies in its reasons in applicant’s case. Cases considered by Donald J. Rennie J.: Diaz v. Canada (Minister of Citizenship & Immigration) (2008), 2008 FC 1243, 2008 CarswellNat 4070, (sub nom. Rodriguez Diaz v. Canada (Minister of Citizenship & Immigration)) 336 F.T.R. 259 (Eng.), 2008 CF 1243, 2008 CarswellNat 4942, (sub nom. Rodriguez Diaz v. Canada (Minister of Citizenship & Immigration)) [2009] 3 F.C.R. 395, 75 Imm. L.R. (3d) 225, [2008] F.C.J. No. 1543 (F.C.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — referred to s. 97 — referred to Treaties considered: Convention Relating to the Status of Refugees, 1951, C.T.S. 1969/6; 189 U.N.T.S. 150 Generally — referred to

APPLICATION for judicial review of decision of Refugee Protection Division dismissing applicant’s claim. 156 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

John Norquay, for Applicant Melissa Mathieu, for Respondent

Donald J. Rennie J.:

1 The applicant seeks judicial review of a decision of the Refugee Pro- tection Division of the Immigration and Refugee Board of Canada (the Board), dated October 24, 2011, which found that the applicant was not a Convention (United Nations’ Convention Relating to the Status of Refu- gees, [1969] Can TS No 6) refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protec- tion Act, SC 2001, c 27 (IRPA). 2 The Court informed the parties at the hearing on June 4, 2012 that despite the able argument on behalf of the respondent, the application would be granted. These are the reasons which underlie that decision. The decision below did not consider one of the two central grounds in respect of which protection was sought, namely the applicant’s fear of persecution based on his HIV-positive status. The Board did not consider whether the systemic discrimination against HIV-positive persons in employment amounted to persecution, and whether state protection was available in relation to that persecution. 3 The applicant, Juan Carlos Ballestero Romero, is a citizen of Vene- zuela. He alleged fear of persecution based on his sexual orientation and HIV status. The applicant and his partner, Rumaldo Antonio Rincon Fer- rer (Rumaldo), fled Venezuela to Canada on April 26, 2010, and made refugee claims at the port of entry. After completing the required immigration medical examinations the applicant and Rumaldo learned in June 2010 that they were both HIV-positive. 4 Their claims were initially joined but at their hearing on July 26, 2011, the Board severed the claims because they were based on different factual allegations. The applicant’s claim was refused on the basis that state protection was available and that the applicant had a viable internal flight alternative (IFA) in Caracas. Rumaldo’s claim was also refused. 5 The parties agreed that the issue raised by this application is whether the Board’s decision is reasonable; New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.). I find that the Board’s decision was unreasonable because the Board failed to consider the applicant’s alleged fear of persecution based on his HIV status. The Board did not consider the applicant’s HIV status in any part Romero v. Canada (MCI) Donald J. Rennie J. 157

of its analysis except the reasonableness of the proposed IFA, and even in that analysis, the Board failed to consider the evidence of systemic discrimination in employment for HIV-positive persons. The Board’s analysis of the employment issue occurs at paragraph 41: The claimant’s representative indicated that the claimant may be fired from any employment position in Caracas, which was a reference to both his being HIV positive [sic]; however, the Panel notes that the Caracas metropolitan population is over 4 million residents and considering the claimant’s educational background and work experience, the Panel believes he would be able to find employment in Caracas. In consideration of these factors, the Panel finds that the IFA to Caracas would not constitute a situation that would be unduly harsh for this claimant. 6 The evidence before the Board in this case was that pre-screening for HIV by employers is “almost impossible to avoid” in Venezuela and also that HIV-positive individuals are frequently discriminated against in the workplace. Thus, as the applicant submits, it was incumbent on the Board to consider whether this discrimination amounted to persecution, as held by Justice John O’Keefe in Diaz v. Canada (Minister of Citizenship & Immigration), 2008 FC 1243 (F.C.), para 33: Furthermore, while the respondent is correct in pointing out that lack of employment is generally not a sufficient reason to determine that an IFA is unreasonable, barriers to employment affect an HIVposi- tive Mexican in an uniquely discriminatory way. The documentary evidence submitted by the applicant suggests that medical testing for HIV status for employment purposes is prevalent in Mexico from factories to professional positions. Despite the fact that the applicant has been successful in obtaining positions in the past, the documentary evidence suggests that the applicant may face restrictions in earning a livelihood because of his HIV status. In Xie v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 125 (F.C.T.D.) systemic governmental inference with the opportunity to find work was found to be a serious restraint on an individual. In this case, the Board did not adequately address whether the applicant had proven that systemic barriers associated with HIV testing and employment amounted to persecution on a balance of probabilities. The interrelated aspects of the applicant’s socioeconomic status and HIV- positive status are important considerations that the Board overlooked. 7 The Board failed to determine whether the discrimination the applicant would face as an HIV-positive individual seeking employment 158 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

amounts to persecution, which in turn was relevant to its conclusions regarding state protection and IFA. This error renders the Board’s conclusion unreasonable and the application therefore must be granted. 8 I would note, in closing, that the respondent sought to rely on the Board Member’s reasons in refusing Rumaldo’s refugee claim to help elucidate the reasons in the decision under review. The respondent submitted that, pursuant to the Supreme Court of Canada’s decision in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), the reasons provided in refusing Rumaldo’s claim could help this Court understand why the Board reached its conclusion in the applicant’s claim. 9 In my view, this is a bridge too far. While Newfoundland invites the Court to refer to the record to better understand a decision-maker’s reasons, it does not go so far as to permit reliance on a distinct set of reasons from another case in which the same decision-maker may have done a better job of analyzing the evidence before him or her. Thus, in determining this application, the Court did not consider the Board Member’s decision in Rumaldo’s claim. The merits of that decision will be considered independently in a separate judicial review application. The Board’s decision refusing the applicant’s claim was unreasonable in light of the record before it and the application must be granted.

Judgment THIS COURT’S JUDGMENT is that this application for judicial review be and is hereby granted. The matter is referred back to the Immi- gration Refugee Board for reconsideration before a different member of the Board’s Refugee Protection Division. No question for certification has been proposed. Application granted. Hernandez Cornejo v. Canada (MCI) 159

[Indexed as: Hernandez Cornejo v. Canada (Minister of Citizenship & Immigration)] Lisseth Noemi Hernandez Cornejo, Pablo Hernandez Garcia (A.K.A. Hernandez Garcia, Pablo), Maria Julia Cornejo de Hernandez, Eduardo Morales Ayala, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-5751-11 2012 FC 325 Donald J. Rennie J. Heard: February 29, 2012 Judgment: March 19, 2012 Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — Miscellaneous –––– Applicants, citizens of El Salvador, alleged that female applicant’s ex-boyfriend C, who was police officer, harassed and threatened them — Applicants unsuccessfully claimed refugee protection in Canada — Applicants applied for judicial review — Application granted — Refugee Protection Division (Board) erred by applying largely irrelevant analysis of state protection to claims — Better part of Board’s reasons related to problem of gang violence in El Salvador and state’s response to that problem — Respondent’s argument that C could be reasonably characterized as gang member, because he often harassed applicants in concert with other police officers, was unworthy of serious consideration — Claim based on threats and harassment by jealous, abusive ex-boyfriend who was also police officer bore no analogy, in fact or law, to claim based on gang violence — Review of Board’s reasons made it clear that references to gang violence had nothing to do with applicants’ claims — Majority of reasons was cut and pasted from another decision related to El Salvador — Such boilerplate approach to refugee decisions undermines seriousness of requirement to give reasons. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — Protection of members of particular groups — Gen- der –––– Applicants, citizens of El Salvador, alleged that female applicant’s ex- boyfriend C, who was police officer, harassed and threatened them — Appli- cants unsuccessfully claimed refugee protection in Canada — Applicants applied for judicial review — Application granted — Refugee Protection Division (Board) failed to consider availability of state protection from perspective of 160 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th) applicants’ specific situation — State protection cannot be assessed in vacuum — Board must consider nature of persecution and profile of persecutor — Female applicant was harassed and threatened by C in effort to coerce her to resume their relationship, and male applicant was intimidated to dissuade him from continuing relationship with female applicant — C was applicant’s ex-boyfriend, and police officer — Board’s consideration of evidence of state protection made no mention of state’s ability to protect people in such circumstances — Respondent’s argument that Board did not need to consider availability of state protection for victims of gender-based violence because there was no evidence police failed to protect applicant because she was woman, and because two of victims of persecution were men, was not open as matter of law or common sense — Man’s relentless pursuit of his ex-girlfriend does not cease to be gender-based persecution because that man also harasses her male relatives in effort to get her back. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Fear of persecution — Well-founded fear — Sub- jective fear –––– Applicants, citizens of El Salvador, alleged that female applicant’s ex-boyfriend C, who was police officer, harassed and threatened them — Applicants unsuccessfully claimed refugee protection in Canada — Applicants applied for judicial review — Application granted — Refugee Protection Divi- sion (Board) erred in its treatment of applicants’ attempts to seek state protection — Board found that their delay in going to police undermined their claim of subjective fear — However, this analysis again failed to take into account that persecutor was police officer — Board could only rely on delay or failure to seek protection if such protection might reasonably have been forthcoming — Applicants explained that they delayed because they knew police protect their own, nothing would happen to C as result, and they were afraid of police — Without consideration of these circumstances, Board’s subjective fear findings were unreasonable. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Protection of country of nationality — Sufficiency of state protection — State corruption or persecution by agents of state –––– Applicants, citizens of El Salvador, alleged that female applicant’s ex-boyfriend C, who was police officer, harassed and threatened them — Applicants unsuccessfully claimed refugee protection in Canada — Applicants applied for judicial review — Application granted — Refugee Protection Division (Board) erred in its treatment of applicants’ attempts to seek state protection — Board found that applicants’ delay in going to police undermined their claim of subjective fear — This analysis failed to take into account that persecutor was police officer — Board could only rely on delay or failure to seek protection if such protection might reasonably have been forthcoming — Applicants explained that they delayed because they knew police protect their own, nothing would Hernandez Cornejo v. Canada (MCI) 161

happen to C as result, and they were afraid of police — Without consideration of these circumstances, Board’s subjective fear findings were unreasonable. Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board — Reasons for decision –––– Conjecture — Applicants, citizens of El Salvador, alleged that female applicant’s ex-boyfriend C, who was police officer, harassed and threatened them — Applicants unsuccessfully claimed refugee protection in Canada — Applicants applied for judicial review — Applica- tion granted — Refugee Protection Division (Board) engaged in speculation to explain away failure of police to respond to applicants’ complaints — Board stated that police may not have taken applicant’s denunciation seriously because it was first one filed against C — Board similarly hypothesized that police may have had some good reason not to take seriously complaint about C and other officers detaining and beating male applicant — These statements amounted to conjecture, which is of no legal value, for its essence is that it is mere guess — Contrary to respondent’s submission, this speculation was clearly relied upon to discount evidence that police failed to protect applicants even after they filed denunciations. Cases considered by Donald J. Rennie J.: Jones v. Great Western Railway (1930), 144 L.T. 194, [1930] All E.R. Rep. Ext. 830, 47 T.L.R. 39 (U.K. H.L.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — followed Satiacum v. Canada (Minister of Employment & Immigration) (1989), 99 N.R. 171, 1989 CarswellNat 906, [1989] F.C.J. No. 505 (Fed. C.A.) — referred to Torres v. Canada (Minister of Citizenship & Immigration) (2010), (sub nom. Gonzalez Torres v. Canada) [2011] 2 F.C.R. 480, 2010 CF 234, 2010 FC 234, 2010 CarswellNat 453, 2010 CarswellNat 1526, [2010] F.C.J. No. 264 (F.C.) — considered Ward v. Canada (Minister of Employment & Immigration) (1993), (sub nom. Canada (Attorney General) v. Ward) 103 D.L.R. (4th) 1, (sub nom. Canada (Attorney General) v. Ward) 153 N.R. 321, 20 Imm. L.R. (2d) 85, 1993 Car- swellNat 90, 1993 CarswellNat 1382, [1997] I.N.L.R. 42, (sub nom. Canada 162 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

(Attorney General) v. Ward) [1993] 2 S.C.R. 689, [1993] S.C.J. No. 74, EYB 1993-67292 (S.C.C.) — referred to Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 96 — considered s. 97 — considered

APPLICATION for judicial review of decision of Refugee Protection Division.

Mordechai Wasserman, for Applicants Stephen Jarvis, for Respondent

Donald J. Rennie J.:

1 The applicants seek judicial review of a decision of the Refugee Pro- tection Division of the Immigration and Refugee Board of Canada (the Board), dated August 5, 2011, finding that the applicants were neither Convention (United Nations’ Convention Relating to the Status of Refu- gees, [1969] Can TS No 6) refugees nor persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protec- tion Act, SC 2001, c 27 (IRPA). 2 The Court informed the parties at the hearing that the application was granted, with reasons to follow. The Board’s decision in this case was indefensible when assessed against the legal principles governing judicial review. The arguments advanced in its support walked a thin line between those that could be made and those that should never be made. Four grounds of review were advanced, any one of which would be sufficient to set the decision aside.

Facts 3 The principal applicant, Lisseth Noemi Hernandez Cornejo (applicant), is a citizen of El Salvador. Joined to her claim were claims by her husband, Eduardo Morales Ayala (the male applicant), and her parents, Pablo Hernandez Garcia and Maria Julia Cornejo De Hernandez. 4 The applicant’s claim was based on her fear of her ex-boyfriend, Hugo Chavez (Chavez). He was a police officer. The applicant started dating Chavez in high school but ended the relationship due to his abusive and controlling treatment. The applicant subsequently began her relationship with Eduardo. One day the applicant and Eduardo encountered Chavez while he was on duty as a police officer. Chavez took Lisseth Hernandez Cornejo v. Canada (MCI) Donald J. Rennie J. 163

away and asked if she had forgotten their time together, while other officers surrounded Eduardo. Chavez assaulted Eduardo and told him to leave the Lisseth, and told Lisseth and return to him (Chavez). 5 Chavez continued to harass the couple. Chavez would appear at their workplaces, to the point that both the applicant and the male applicant lost jobs due to his harassment. On one occasion, the male applicant was beaten severely and held at a police station. The applicant states that they were afraid to go to the police because they are corrupt and protect their fellow officers. 6 Chavez also began to harass the applicant’s parents and threatened them if they did not tell him where the applicant was. The applicant and her parents came to Canada in late 2009, and claimed protection on Feb- ruary 22, 2010. The male applicant followed later and made his claim on January 6, 2011.

Analysis 7 As mentioned above, there were at least four reviewable errors in the Board’s decision, rendering it unreasonable per New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.). 8 First, the Board erred by applying a largely irrelevant analysis of state protection to the claims. The better part of the Board’s reasons relate to the problem of gang violence in El Salvador and the state’s response to that problem. The respondent’s assertion that Chavez could be reasonably characterized as a gang member (Hugo Chavez and his gang of police officers), because he often harassed the applicants in concert with his fellow police officers, is an argument unworthy of serious consideration. A claim based on threats and harassment by a jealous, abusive ex-boyfriend who is also a police officer bears absolutely no analogy, in fact or in law, to a claim based on gang violence. 9 A review of the Board’s reasons makes it clear that the references to gang violence have nothing to do with the applicants’ claims. The majority of the reasons was cut and pasted from another decision related to El Salvador. This kind of boilerplate approach to refugee decisions undermines the seriousness of the requirement to give reasons. 10 Second, the Board failed to consider the availability of state protection from the perspective of the applicants’ specific situation. As Justice Russel Zinn emphasized in Torres v. Canada (Minister of Citizenship & Immigration), 2010 FC 234 (F.C.) at para 37, state protection cannot be 164 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

assessed in a vacuum and the Board must consider the nature of the persecution and the profile of the persecutor. 11 In this case, the female applicant was harassed and threatened by Chavez in an effort to coerce the her to resume their relationship, and Eduardo was intimidated to dissuade him from continuing in his relationship with the female applicant. Chavez, the central agent of persecution, was the ex-boyfriend of the applicant and a police officer. The Board’s consideration of the evidence of state protection makes no mention of the state’s ability to protect people in these circumstances; rather, it focuses on El Salvador’s “Mano Dura” campaign to combat the relationship between drugs and crime. 12 The respondent submits that the Board did not need to consider the availability of state protection for victims of gender-based violence because there was no evidence that the police failed to protect the applicant because she was a woman, and furthermore, because two of the victims of persecution are men. This argument was not, as a matter of law or common sense, open to the Attorney General. 13 A man’s relentless pursuit of his ex-girlfriend does not cease to be gender-based persecution simply because that man also harasses her male relatives in an effort to get her back. Furthermore, the fact that the police did not tell the applicant they were ignoring her complaint because she was a woman is hardly fatal; there was evidence before the Board that the police did ignore her complaints and there was documentary evidence on the general police failure to respond to gender-based persecution. 14 The third error lies in the Board’s treatment of the applicants’ attempts to seek state protection. The Board found that their delay in going to the police undermined their claim of subjective fear. However, this analysis again failed to take into account that the persecutor is a police officer. The Board appeared to accept, for example, that on one occasion the male applicant was arrested, beaten and detained without cause by Chavez and his fellow officers yet, the Board finds it unreasonable for the applicants to delay between their attempts to file police reports, of which they filed four. 15 As the applicants submit, the Board could only rely on a delay or failure to seek protection if such protection might reasonably have been forthcoming: Ward v. Canada (Minister of Employment & Immigration), [1993] S.C.J. No. 74 (S.C.C.) at para 49. The applicants explained that they delayed because they knew the police protect their own, nothing Hernandez Cornejo v. Canada (MCI) Donald J. Rennie J. 165

would happen to Chavez as a result, and they were afraid of the police (understandably so, since the agents of persecution were themselves police officers). Without a consideration of these circumstances the Board’s subjective fear findings are unreasonable. 16 Finally, the Board engaged in speculation to explain away the failure of the police to respond to the applicants’ complaints. The Board states that the police may not have taken the applicant’s denunciation seriously because it was the first one filed against Chavez. The Board similarly hypothesized that the police may have had some good reason not to take seriously the complaint about Chavez and other officers detaining and beating the male applicant. These statements amount to conjecture, which “is of no legal value, for its essence is that it is a mere guess”: Jones v. Great Western Railway (1930), 47 T.L.R. 39 (U.K. H.L.), at 45, cited in Satiacum v. Canada (Minister of Employment & Immigration), [1989] F.C.J. No. 505 (Fed. C.A.). Contrary to the respondent’s submission, this speculation was clearly relied upon to discount the evidence that the police failed to protect the applicants even after they filed denunciations. 17 Thus, for all these reasons, the application is granted, the Board’s decision is set aside, and the matter is referred back for re-determination by a different panel.

Judgment THIS COURT’S JUDGMENT is that the application for judicial review is granted. The matter is referred back to the Immigration Refugee Board for reconsideration by a different panel. No question for certification has been proposed and the Court finds that none arises. Application granted. 166 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

[Indexed as: Munganga v. Canada (Minister of Citizenship & Immigration)] Florence Nsimba Munganga, Faithfull Flory Musungu, Sephora Joyce Musungu, Ketsia Sharon Musungu (a.k.a. Ketsia Sharom Musungu), Floribert Musungu, Applicants and The Minister of Citizenship and Immigration, Respondent Federal Court Docket: IMM-4530-11 2012 FC 676 Sandra J. Simpson J. Heard: March 19, 2012 Judgment: June 1, 2012 Immigration and citizenship –––– Refugee protection — Practice and procedure in refugee claims — Refugee hearings — Powers and duties of board — Reasons for decision –––– Principal applicant, preacher, and wife and children were citizens of Democratic Republic of Congo — Principal applicant alleged that he was beaten, threatened and held captive for three months following evening of preaching — Immigration and Refugee Board noted that applicant’s claims were based on applicant’s membership in particular religious group and political group — Board made negative credibility findings about religious grounds — Applicant applied for judicial review of board’s decision to reject claim — Application granted — Pursuant to recent Supreme Court authority, “decision-maker was not required to make explicit finding on each constituent element, however subordinate, leading to its final conclusion” — Further- more, if “reasons allowed reviewing court to understand why tribunal made its decision and permit it to determine whether conclusion was within range of reasonable outcomes, Dunsmuir criteria were met” — Board, however, was not re- lieved of obligation to make final decision which referred specifically to each of convention grounds advanced by applicants — Board failed to rule on fundamental aspect of claim, misstated evidence about beatings, and relied on answer that was not asked — Board’s decision was unreasonable — Matter was to be reconsidered by different panel of board. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Religion. Immigration and citizenship –––– Refugee protection — Elements of protected refugee status — Grounds — Membership in particular social group — Political affiliation. Munganga v. Canada (MCI) Sandra J. Simpson J. 167

Cases considered by Sandra J. Simpson J.: N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2011), 2011 Car- swellNfld 414, 2011 CarswellNfld 415, 2011 SCC 62, (sub nom. Nfld. and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 2011 C.L.L.C. 220-008, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) 424 N.R. 220, 340 D.L.R. (4th) 17, D.T.E. 2012T-7, (sub nom. Newfoundland & Labrador Nurses’ Union v. Newfoundland & Labrador (Treasury Board)) [2011] 3 S.C.R. 708, 213 L.A.C. (4th) 95, 97 C.C.E.L. (3d) 199, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 986 A.P.R. 340, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 317 Nfld. & P.E.I.R. 340, [2011] S.C.J. No. 62 (S.C.C.) — followed Statutes considered: Immigration and Refugee Protection Act, S.C. 2001, c. 27 s. 72(1) — pursuant to s. 74(d) — referred to

APPLICATION for judicial review of Immigration and Refugee Board’s decision that applicants were not Convention refugees or persons in need of protection.

Alla Kikinova, for Applicant Nina Chandy, for Respondent

Sandra J. Simpson J.:

1 The applicants, Florence Nsimba Munganga [the Female Applicant], Floribert Musungu [the Applicant] and their three children [collectively, the Applicants], seek judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the Refugee Protection Division of the Immigration and Ref- ugee Board [the Board] dated May 27, 2011, wherein the Board determined that the Applicants are not Convention refugees or persons in need of protection [the Decision].

Background 2 The Applicants are a married man and woman and their three children. They fled the Democratic Republic of Congo [DRC] because they feared persecution by the government and the military. 168 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

3 The Applicants’ home was in the city of Kinshasa. However, the Ap- plicant was a preacher and he travelled to the city of Goma to evangelize. He preached on the streets, in public places, and in hospitals. He periodi- cally returned to Kinshasa to visit his family and they sometimes visited him in Goma. 4 The Applicant testified that on October 29, 2008, he preached for approximately four hours to a crowd of about 2,000 people in the city of Rutshuru. Thereafter, he returned to his family in Goma. Later that day, Rutshuru was invaded by rebels under the leadership of Laurent Nkunda and that night, while the family was sleeping, four soldiers from the Con- golese Armed Forces appeared at their door. The soldiers pushed the Ap- plicant aside and came into the house. One of the soldiers recognized the Applicant from his evangelical activities and began to beat him. The soldiers accused him of being a traitor and of collaborating with the Nkunda rebels. 5 After the beating, the Applicant alleges that he was blindfolded and taken to a detention centre in Goma, where he was held for four days. During that time he was interrogated, beaten and threatened so that he would confess to being a traitor and a rebel collaborator. On November 4, 2008, he was moved to a house in Goma where he was held captive for approximately three months. During this time he was subjected to similar treatment. 6 On October 30, 2008, the Female Applicant went to the police station to inquire about her husband. She spoke with an inspector, who said that she should be glad that she had not been killed or raped and that she should return to Kinshasa with her children. She followed his advice. 7 On the night of November 18, 2008, three soldiers came to the Appli- cants’ home in Kinshasa. The soldiers asked the Female Applicant questions about her husband, threatened and assaulted her, and asked for money. The Female Applicant fled Kinshasa with her children on De- cember 21, 2008 and sought refugee protection in Canada on December 26, 2008. 8 On January 24, 2009, while still in captivity in Goma, the Applicant was approached by a member of the military who was kind to him and offered to help him obtain a Bible. The Applicant gave the military man the name of one of his friends who was pastor in Goma. That friend arranged to help the Applicant escape on February 7, 2009. After the escape, the Applicant went into hiding. Munganga v. Canada (MCI) Sandra J. Simpson J. 169

9 He arrived back in Kinshasa on September 27, 2009, in search of his family and stayed at his uncle’s house. On October 27, 2009, when he was not at home, the national police came to his uncle’s house and asked for him. The Applicant, on learning of the police visit, left for the village of Kimayala. 10 While in Kimayala, the Applicant heard that the police continued to look for him in Kinshasa. They are alleged to have delivered three different summonses [the Summonses] to his friend, Hubert Banza, and his brother, Mbo Senge. Both men responded by going to the police station and there they were told that the police were looking for the Applicant. 11 The Applicant left Kimayala and arrived in Casablanca by plane on September 13, 2010. He arrived in Canada and claimed refugee status on September 23, 2010.

The Decision 12 The Board correctly noted that the Applicants’ refugee claims were based on the Applicant’s membership in a particular social group, namely evangelists [the Religious Ground], and imputed political opinion by virtue of his membership in that social group [the Political Ground]. His evidence was that he was perceived to be opposed to the government because of his influence as an evangelist. 13 The Board dealt with the Religious Ground at paragraph 13 of its reasons when it noted that the US Department of State report clearly states that the constitution of the DRC provides for freedom of religion and that there were no reports that anyone was killed, detained or imprisoned on the basis of their religion. The Board therefore concluded that there was no objective basis to support the Religious Ground. However, the Board never reached a conclusion in which it referred specifically to the Politi- cal Ground. 14 The Board also made a number of negative credibility findings, but only the two described below are significant for present purposes. 15 First, the Board did not believe that the Applicant was detained for three months and/or tortured [the Detention Conclusion]. The Board reached this conclusion because it found that the Applicant’s oral testimony was evasive and lacked detail. 16 Second, the Applicant failed to mention the Summonses in his oral evidence-in-chief even though they had been entered into evidence at the hearing. In the Decision, the Board noted that the Applicant was specifically asked if anything else had occurred on October 27, 2009, or at any 170 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

time before he left the DRC. He said “no” and thereby failed to mention the Summonses. As a result, the Board concluded that they were not genuine and gave them no weight [the Summonses Conclusion].

Discussion 17 Although there were numerous criticisms of the Decision put forward by the Applicants, the following three are dispositive: (i) The Board failed to make a finding about the Political Ground. (ii) The Board misrepresented the Applicant’s evidence in reaching the Detention Conclusion. (iii) In coming to the Summonses Conclusion, the Board misdescribed the question put to the Applicant at the hearing.

(i) The Board failed to make a finding on the Political Ground 18 Counsel for the Respondent submitted that Board dealt with both the Religious and the Political Grounds at paragraph 22 of the Decision when it concluded that the Applicants did not have a well-founded fear of persecution “by virtue of any of the 5 Convention grounds”. 19 In dealing with this issue, I am mindful of the Supreme Court of Can- ada’s recent decision in N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, 340 D.L.R. (4th) 17 (S.C.C.). In that case, the Court observed at paragraph 16 that: Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion... In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. 20 However, in my view, this judgment does not relieve the Board of an obligation to make a final decision which refers specifically to each of the Convention grounds advanced by the Applicants. Since the Board failed to make a specific finding about the Political Ground, the Decision is unreasonable. Munganga v. Canada (MCI) Sandra J. Simpson J. 171

(ii) In coming to the Detention Conclusion, the Board misrepresented the Applicant’s evidence 21 In my view, the Board erred by misrepresenting the Applicant’s evidence in a way that made it appear absurd. 22 At paragraph 14 of the Decision, the Board observes that: The panel asked the claimant to describe the three months in detention. The claimant indicated that he was beaten and tortured. The claimant demonstrated great difficulty providing details of his experience during his three month detention. As a result, the panel needed to probe for details. For example, the panel asked the claimant how often he was beaten and asked him to provide details of the mistreatment and the injuries he sustained. The claimant stated that he was beaten every other day and the worst injury was bruising. The panel asked to explain how he could be beaten every other day for three months and only sustain bruising. The claimant replied that it was mostly mental torture. [my emphasis] 23 The relevant portion of the transcript of the hearing reads as follows: MEMBER: How often would they take you out of your room and mistreat you? MALE APPLICANT: It depends; it could be every other day or it could be they leave you alone for about a week. MEMBER: What was the worst injury you sustained... from the beatings? MALE APPLICANT: I was not, I did not have any injuries. Basi- cally I was not bleeding, but the fact that it was like swelling all over my body but it was you were basically being more tortured mentally. [my emphasis] 24 It is clear from the transcript that the Male Applicant did not state that he was “beaten every other day”, as indicated in the Decision. Because the Decision was based on a misrepresentation of the evidence, I find that the Detention Conclusion was unreasonable.

(iii) The Board misdescribed the question put to the Male Applicant at the hearing in coming to the Summonses Conclusion 25 The Board states that it gave the Summonses no weight for two reasons. The first reason is that the Male Applicant referred to the Sum- 172 IMMIGRATION LAW REPORTER 10 Imm. L.R. (4th)

monses in his PIF but made no reference to them in his oral testimony in chief. This was accurate. 26 However, the Board also dismissed the Summonses on the basis that the Applicant did not mention them in response to a question posed by the Board. At paragraph 17 of the Decision the Board states that the Male Applicant “was specifically asked if anything else happened on October 27, 2009, or any time up to the time he left the country, and he said no.” However, the transcript shows that this question was never asked. As a result, I have concluded that the Summonses Conclusion was also unreasonable.

Conclusion 27 To summarize, because the Board failed to rule on a fundamental aspect of the Applicants’ claim, misstated the evidence and relied on an answer to a question that was not asked, the application will be allowed.

Certification 28 No serious question of general importance was posed for certification pursuant to section 74(d) of the Act.

Judgment THIS COURT’S JUDGMENT is that the application is allowed and the matter is to be reconsidered by a different panel of the Board. The parties may file fresh evidence on the reconsideration. Application granted; matter remitted to different panel for reconsideration.