REFUGEE PROTECTION CASE LAW THE BEST OF

Transcription

1 REFUGEE PROTECTION CASE LAW THE BEST OF CANADIAN BAR ASSOCIATION NATIONAL CITIZENSHIP AND IMMIGRATION LAW CONFERENCE HALIFAX MAY 13 TH 15 TH, 2010 Mitchell GOLDBERG 1635 Sherbrooke West, Suite 400 Montreal (Quebec) H3H 1E2 Tel.: (514) Fax: (514)

2 INTRODUCTION : My eleven year old daughter rendered a recent judgement: Daddy, I know you re a good lawyer, so I just don t understand why you can t give me any good reasons! In this paper I comment, summarise or cite excerpts from many of the leading Federal Court cases from in the field of refugee protection. The headings are divided into the following broad categories: Credibility, State Protection, IFA, Exclusion & Eligibility, the Refugee Definition, and Natural Justice. Each case begins with a brief commentary, and in most cases I cite the heart of the decision. Please let me know if per chance I have given you any good reasons. CREDIBILITY: R. v. Laboucan, 2010 SCC 12: The Supreme Court conducts an interesting credibility analysis in a criminal law context. This may provide guidance to IRB members who are tempted to quickly label testimonials from friends or family members as self serving. The court states: [11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, among others, to take into account when assessing the credibility of the witness s testimony. A trier of fact, however, should not place undue weight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding of credibility regarding a parent s or a spouse s testimony solely on the basis of the witness s relationship to the complainant or to the accused. Regard should be given to all relevant factors in assessing credibility. Fuentes Sierra 2009 FC 1048: The Board found it implausible that the Principal Applicant had: (1) gathered incriminating evidence in 2005 that remained a threat three years later; (2) suffered three years of threats without being able to identify the agents of persecution; and (3) fled Mexico before his wife and children. Justice Russell states: Whether or not this sequence of events is credible depends upon whether there were good reasons for the Applicants to arrange their departure from Mexico in the way they did. There is nothing inherently incredible about members of a family leaving at different times if the exigencies of the situation call for such a procedure....the Board uses a newspaper article to discredit the Principal Applicant s testimony that the Department of Justice he approached for assistance refused to take a report, but the Board completely disregards the other evidence in the same article that corroborates attacks upon the Principal Applicant. It is not reasonable for the Board to selectively rely upon evidence to

3 doubt one aspect of the Applicants story but then to overlook the same evidence that strongly supports the central aspects of the Applicants claim relating to physical abuse in retaliation for the Principal Applicant s radio exposures of links between drug traffickers and police. See Tekie at paragraph 11. The Applicants provided an explanation for why they fled separately. The Board certainly did not have to accept the explanation; but it does have to address the actual facts of their departure and say why it disbelieves the explanation provided. Instead, the Board simply makes a general statement to the effect that the Principal Applicant would not have come to Canada if his wife and children were threatened. This reveals that the Board was determined not to believe the Applicants rather than engage with, and assess, the particulars of their evidence. Okoli 2009 FC 332: The Court strikes down the Board's reliance on inconsistencies between the POE notes, the PIF as well as an amended PIF. An allegation of discrepancies between an immigration officer s notes and the more detailed PIF narrative is one of the distinguishing features of our refugee determination system. This decision joins a series of cases warning against a microscopic analysis. Justice Mandamin states: I find the board member accepted several crucial elements of the Applicant s story: his sexual orientation, his scars, mistreatment of homosexuals in Nigeria and lack of police protection for homosexuals. The board member s overall credibility findings about the Applicant are based almost entirely on inconsistencies between the port of entry notes and the two versions of the PIF. The Applicant was detained and asked for the details of his claim at the Port of Entry. There were discrepancies over several interviews but the core of the Applicant s claim remained the same. The Applicant provided a PIF while in detention and an amended PIF after release from detention. The Applicant provided an explanation for the amended PIF. The amendment was made almost immediately after the Applicant found a new lawyer and was released from detention (Giminez v. Canada (M.C.I), 2005 FC 1114). The board member may not draw negative inferences from the fact of an amendment which was done in a timely manner well before the hearing (Ameir v. Canada (M.C.I), 2005 FC 876). The amended PIF merely expands on the original, rather than contradicting it. In similar cases, this Court has concluded that such a change provides no reason to question the credibility of the claimant (Puentes v. Canada (M.C.I.), 2007 FC 1335, para ). The amended PIF addresses the omissions directly, explaining why they occurred... Pinedo, 2009 CF 1118: Justice Beaudry rules that it's an error to automatically make negative inferences from the absence of corroborating proof, unless the applicant's credibility is seriously questioned. This may be trite law, but this issue pops up in various manifestations time after time.

4 Wu, 2009 FC 929: This application was denied because Justice Kelen found that most of the Board's core credibility determinations were reasonable. At the same time he evaluates the Board s faulty characterisation of the applicant's religious beliefs: 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 misunderstandings to a level which reached the microscopic analysis criticized in Attakora v. Canada (Minister of Employment and Immigration) (F.C.A.), (1989), 99 N.R. 168, [1989] F.C.J. No. 444 (QL), and subsequent cases [see Huang v. Canada (MCI), 2008 FC 346, 69 Imm. L.R. (3d) 286, per Justice Mosley at para. 10; Chen v. Canada (MCI), 2007 FC 270, 155 A.C.W.S. (3d) 929, per Justice Barnes at para 16]. The Board should not fault a poorly educated claimant for being unable to identify a passage dealing with a particular ceremony or ritual in the claimant s holy book [see Feradov v. Canada (MCI), 2007 FC 101, 154 A.C.W.S. (3d) 1183, per Justice Barnes at para. 16]. 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. Haji, 2009 FC 889: Justice Tannenbaum strikes down a PRRA decision because the officer failed to order a hearing. The Court found that the Board's conclusion that there was no objective basis for the claim was founded in part on an inherent credibility determination. The Court states: The Officer s findings respecting the Applicant s credibility were central to his application. Given the Officer s conclusions respecting the documentary evidence, it follows that if the Officer had believed the Applicant, he would likely have granted the PRRA. I am satisfied that the circumstances of this case are such that the factors under section 167 were met. Consequently, it was contingent upon the Officer to hold a hearing. His failure to do so constitutes a reviewable error.

5 STATE PROTECTION: Flores Carillo, 2008 FCA 94: This FCA case is from 2008 but worthy of mention. The FC decision was appealed by the Minister after the following question was certified by O Reilly J: What is meant by the presumption of state protection (as mentioned in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689)? Does it impose a particular standard of proof on refugee claims [sic] to rebut it, or does it merely impose an obligation to present reliable evidence of a lack of state protection? If it imposes a particular standard of proof, what is it? According to Justice O Reilly, the Board imposed too high a standard of proof with respect to the issue of whether there was state protection available in Mexico. This, he said, amounted to an error of law. The FCA confirms that the correct standard is the balance of probabilities, but also rules on the quality of the evidence that is required to rebut the presumption of state protection: Indeed, in Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, at paragraph 57, our colleague Sexton J.A. used a somewhat similar expression when he wrote that a claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status (emphasis added). I think our colleague, as was La Forest J. in the Ward case, referred to the quality of the evidence that needs to be adduced to convince the trier of fact of the inadequate state protection. In other words, it is more difficult in some cases than others to rebut the presumption. But this in no way alters the standard of proof. In this respect, I fully agree with the finding of the judge that La Forest J. in Ward was referring to the quality of the evidence necessary to rebut the presumption and not to a higher standard of proof....it is not sufficient that the evidence adduced be reliable. It must have probative value. For example, irrelevant evidence may be reliable, but it would be without probative value. The evidence must not only be reliable and probative, it must also have sufficient probative value to meet the applicable standard of proof. The evidence will have sufficient probative value if it convinces the trier of fact that the state protection is inadequate. In other words, a claimant seeking to rebut the presumption of state protection must adduce relevant, reliable and convincing evidence which satisfies the trier of fact on a balance of probabilities that the state protection is inadequate. Prekaj, 2009 FC 1047: Justice Russell strikes down this application pertaining to Albanian blood feuds. Abundant documentation was provided about the corruption and ineffectiveness of the police. His reasoning shares an affinity with many other decisions where the Court criticises the Board s selective reading of country documentation when concluding

6 that state protection is effective. The often stated presumption that the tribunal has considered all the evidence can be rebutted The Board is required to at least refer to relevant evidence that contradicts its findings. Gonzalez 2009 FC 1087: One of the themes of the past few years has been contradictory applications of the notion of effective state protection. There appears to be no other country for which this issue is so consequential than Mexico. Justice Pinard allowed this application and states: The Board concluded that the applicant had not reasonably exhausted the avenues available to him. In support of its conclusion, the Board points to the evidence that the applicant failed to ratify the initial report he submitted to the Public Ministry regarding the assault on his wife in Tamaulipas. Further to this, the Board notes that he filed reports with the Public Ministry in two other states but did not follow up with either. Finally, the Board expressed the view that the applicant ought to have sought help from non-police and non-judiciary organizations... If evidence of a timely and/or appropriate response by the police can indicate a willingness to protect...it follows that an absence of police response tends to show an unwillingness to protect. This, coupled with the identity of the agent of persecution should have led the Board to conclude that the applicant was unlikely to expect state protection... Indeed, the context of a high level official orchestrating the persecution necessarily alters the analysis of relevant agencies and reasonable efforts by the applicant. At best, the Board surmised that the applicant was having an administrative problem ratifying his complaint and thus, he should have sought out help from agencies that assist people making complaints about corruption in the state. In this context it would be relevant that the Board take notice of agencies that the applicant did not approach. However, the applicants make a persuasive argument that the Board erred in failing to consider the applicant s reasonable expectation of protection from the state against itself, specifically from high level political officials. Torres 2010 FC 234: This is one more of many Mexican state protection cases. The Court finds the Board s analysis of state protection in Mexico to be unreasonable. Justice Zinn provides a strong over view of the elements that are required to examine whether state protection is effective in an individualised context. He states: There was no substantive discussion of the applicant s allegations that Mr. Almendariz was involved with organized crime, or that he was politically connected, or that he had connections to the police. These issues are important in determining whether the Mexican authorities would be able and willing to provide protection, particularly in light of the documentary record that suggests powerful individuals in Mexico can commit crimes with impunity.

7 The Board treats the police response to each attack in isolation rather than situating the response within the entirety of the violations experienced The context here is important as well If one accepts the history of attacks from the same source, the failure to date of any protection to be provided to him, and the vicious final assault and the threat of death the next time, it would be objectively unreasonable to expect the applicant to wait longer for a response from the police, knowing that he might not live to see it. I find that the Board s conclusion that it is implausible that the [federal] police did not take any actions against these individuals [as] these were clearly criminal offences to be both unreasonable and naive. The record is replete with examples of well-connected persons being protected by or at least not investigated by the police at all levels in Mexico. In the face of the documentary record, this statement from the Board would be reasonable only if the profile of the agent of persecution was that of an ordinary citizen of Mexico. This statement, in my view, reinforces the conclusion that the Board failed to properly analyze state protection in the context of this case. Alexander v. Canada 2009 FC 1305: Justice Harrington reviews recent decisions on state protection for woman fearing domestic violence in St. Vincent and the Grenadines. He does not mince his words as he states: I find absolutely astonishing that the IRB publishes information on country conditions but fails to mention that the Consul General has admitted that the state cannot guarantee the effectiveness of a restraining order. In the light of the above, no further analysis need be made of the finding that Ms. Alexander did not try hard enough to seek state protection. As Mr. Justice Urie noted in the Federal Court of Appeal in Ward, above, the inability of a state to protect may be because it turns a blind eye to the situation. Good intentions, if they are good intentions, are simply not enough. Why were there reports five years ago that the Government was renovating a women s shelter, while the latest reports indicate that there is no shelter at all? Although obviously written in a different context, consider the following words of Andrew Marvell, The grave s a fine and private place, but none, I think, do there embrace. Small comfort to the family of those whose loved ones have been murdered that the perpetrator has been dealt with in accordance with law, after the fact. Speaking in that vein, whatever happened to the case where the police ignored a woman s complaints that her boyfriend was harassing her? Her head was lobbed off at a bus stop in broad daylight. This incident is to be found in the case law (Myle, 2007 FC 1073, at para. 23) from this Court dealing with St. Vincent and the Grenadines.

8 Zaatreh 2010 FC 211: This is a claim of an Israeli Arab Christian. The Court indicates that they expect an analysis by the Board of evidence submitted to rebut the presumption of state protection. The Court notes that the respondent s efforts to defend the Board s reasons can serve to remind the Court that the reasons were indeed deficient. Justice Russell states: The Applicant s position on state protection is that because of systemic state discrimination towards Arabs and Christians, adequate police protection was not available to him in Israel. A significant amount of evidence was introduced on this point. Counsel for the Respondent spent a great deal of time at the hearing of this application addressing what she regarded as deficiencies in that evidence which might render it irrelevant and/or of little weight. What we do not have, however, is the RPD s assessment of that evidence. In reviewing this Decision the Court is concerned with the Decision itself and the reasons, or lack thereof, contained in the Decision. Counsel s views of the evidence do not really assist the Court in this regard. After reviewing the Decision and the record, I have to conclude that the RPD s state protection analysis contains reviewable errors. Generally speaking, the Board failed to review the evidence of inadequate state protection at an operational level and it failed to consider the evidence about persons similarly situated to the Applicant who have been let down by the state. As in Balogh, the RPD in this case did not test the presumption of state protection against the evidence led by the Applicant. In fact, the RPD appears to have relied upon facts and conclusions selected from the evidence that, in my view, do not particularly support its general findings INTERNAL FLIGHT ALTERNATIVE Lugo FC 170: Justice Okeefe rightly asserts that it makes no sense for a refugee to seek an IFA in order to prove that their IFA would be unreasonable: No cases were brought to my attention to support the Board s contention that refugee claimants have an obligation to have already sought protection in the proposed IFA location. Adding an additional requirement in the application of the test will cause the Board to run afoul of the reasonableness standard. Adding the requirement that the Applicants must have tried living in another, safer region of the country demonstrates a misunderstanding of the legal test for an IFA. Calderon, 2010 FC 263: Justice Near strikes down the unfortunate contention that it would be reasonable for

9 the claimant to seek an IFA even if it meant separation from her children: It is unduly harsh and unreasonable to expect the Applicant to foreswear any efforts or attempts to re-secure custody of her young children. The Court has recognized that the forced separation of families may be unreasonable. [ ] The Respondent argues that the decision is reasonable as by coming to Canada the Applicant now no longer sees her children, whereas prior to coming to Canada she saw them every other weekend and on vacations. However, the test is if the conditions of the proposed IFA in Mexico are unreasonable or unduly harsh, not a comparison of the IFA with any other external possibilities. Therefore, this line of reasoning cannot stand. Syvyryn, 2009 FC 1027: Justice Snider examines the gender guidelines pertaining to the reasonableness of an IFA in the Ukraine. The Court strikes down the decision and states: I am not satisfied that the Board had regard to the Gender Guidelines as they relate to a finding of an IFA. The documentary evidence shows that women of the Applicant s age and gender face considerable discrimination in finding employment in Ukraine. The Board did not take such factors into account in reaching its conclusion that it would be reasonable for the Applicant to relocate to Kiev. In fact, the Board failed to make any inquiries of the Applicant that would have assisted in the necessary analysis. REFUGEE DEFINITION: Prophete V. MCI 2009 FCA 31: This case may need to be reckoned with by counsel representing Haitian Earthquake victims. It reminds us of a gaping hole in the refugee protection net. A person can be denied for the sole reason that their fear is shared by everyone else in their country. This question was certified: "Where the population of a country faces a generalized risk of crime, does the limitation of section 97 (1)(b)(ii) of the IRPA apply to a subgroup of individuals who face a significantly heightened risk of such crime?" The FCA dismissed Prophet s appeal and stated: To be a person in need of protection, the appellant had to show the Board, on a balance of probabilities, that his removal to Haiti would subject him personally, in every part of that country, to a risk to his life or to a risk of cruel and unusual treatment that is not faced generally by other individuals in or from Haiti The certified question correlates with the appellant s position. Mr. Prophète, a citizen of Haiti, sought asylum in Canada alleging persecution in the form of vandalism, extortion and threats of kidnapping. Although the appellant recognized the upheaval faced generally by Haitian citizens, he submitted that

10 being a businessman put him and other business persons especially at risk because those with money or those perceived to have money were at greater risk than the general population which, for the most part, lived in poverty The examination of a claim under subsection 97(1) of the Act necessitates an individualized inquiry, which is to be conducted on the basis of the evidence adduced by a claimant in the context of a present or prospective risk for him (Sanchez v. Canada (Minister of Citizenship and Immigration), 2007 FCA 99 at paragraph 15) (emphasis in the original). As drafted, the certified question is too broad. Taking into consideration the broader federal scheme of which section 97 is a part, answering the certified question in a factual vacuum would, depending on the circumstances of each case, result in unduly narrowing or widening the scope of subparagraph 97(1)(b)(ii) of the Act. [For these reasons, we decline to answer the certified question. In the case at bar (Prophete v. Canada (Citizenship and Immigration), 2008 FC 331), there was evidence on record allowing the Applications Judge to conclude:" that the applicant does not face a personalized risk that is not faced generally by other individuals in or from Haiti. The risk of all forms of criminality is general and felt by all Haitians. While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence." Gilles Michel 2010 FC 159: This Haitian claim was distinguished from Prophete, above, because the Board ignored evidence of individualised persecution. Justice Crampton states: In the cases cited by the Board in support of its determination regarding the Applicant s s.97 claim, there does not appear to have been similar evidence of personalized targeting. (See Cius, above, and Prophète v. Canada (Minister of Citizenship and Immigration), 2008 FC 331, [2008] F.C.J. No. 415, aff d, 2009 FCA 31.) The Board s failure to give reasons that addressed the most important evidence adduced in support the Applicants claims under ss. 96 and 97 of the IRPA, and that failed to address a critical legal argument made in support of Mme. Jean Gilles Michel s claim that she has a well founded fear of persecution based on her gender, renders the Board s Decision unreasonable (Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39, [1999] 2 S.C.R. 817 at para. 73; and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] S.C.J. No. 3 at paras. 37 to 39). With respect to the above-mentioned legal argument, the Board should have specifically addressed whether there was documentary or other evidence before it as to the generalized persecution of women in Haiti. In addition, the Board ought to have considered whether the evidence supported Mme. Jean Gilles Michel s claim that women in Haiti, as well as those returning to Haiti from aboard, constituted particular social groups Rivera 2009 FC 814: This is an appeal of a PRRA decision. The applicant is a member of the U.S. Army. She alleges that her political opinion and public involvement against the war in Iraq, will

11 cause her to be charged with being Absent Without Leave (AWOL) or desertion, and that she d be subjected to a court-martial proceeding. She asserts that she would not receive a fair trial and would face disproportionate non-judicial punishment because of her opposition to the war in Iraq. The RPD denied the claim. The applicant submitted abundant new documentation to the PRRA officer. The main issue was whether the prosecution of the applicant would be a neutral application of a general law. Justice Russell allows the application and states: What the Officer s analysis leaves out of account is the whole issue of whether targeting soldiers and subjecting them to court martial because of their political opinion is a neutral application of a general law and, if it is not, whether such conduct by the state can be persecution under section 96 or harm under section 97. In other words, the Officer identifies the act of prosecution as a stated risk but does not analyse that aspect of the Applicants case. He focuses on what happens after the decision to prosecute has been taken. This approach infects his whole analysis because, in looking at state protection, he never asks whether the state can, or is likely to, protect the Principal Applicant against targeting in the event that such targeting can be said to be section 96 prosecution or section 97 harm. A.B FC 325: This is an appeal from a PRRA decision. Justice Gibson conducts an informative review of case law pertaining to religious persecution. In this case the applicant converted from Islam to Christianity and feared persecution in Iran. The Court states: Here, of course, the issue is not risk of religious persecution flowing from secret or public practice of religion, but rather risk of persecution should the Government of Iran become aware of the applicant s rejection of Islam without choosing to adopt the practice, whether secretly or publicly, of an alternative religion... There can be no question that a citizen of a country like Iran who rejects Islam, whether or not he or she adopts another religion, is put at risk if required to return to Iran. The late Justice Rouleau and Justice Phelan and perhaps, certainly less directly, others cited on behalf of the applicant, expressed a view that that is not the end of the matter. Even assuming that an individual who has rejected Islam, if required to return to Iran, will remain discreetly silent on that rejection, I am satisfied that he or she may well remain at risk of persecution if the circumstances are such that his or her rejection of Islam might come to the attention of state authorities. That risk was simply not addressed by the Officer on the facts of this matter. Bao Yu Zhang 2009 FC 1198: The RPD accepted that the applicant was practising Christianity as a member of a house church in China, and that she continued her practice in Canada. Justice De Montigny states:

12 The case law makes it quite clear that any meaningful restriction on the applicant s ability to practice her religion as she wished in her house church, including a brief period of detention or a fine, would most certainly constitute religious persecution. The fact that it is illegal to belong to an unregistered or non state sponsored church in China would therefore tend to support a finding of religious persecution. EXCLUSION AND ELIGIBILITY Wangden v. MCI: 2009 FCA 344: The FCA tightens the application of the eligibility requirements for the diminishing number of claimants who escape the restrictive provisions of the Safe Third Country Agreement. The question before Justice Mosley was whether the applicant's successful claim for withholding of removal in the USA brought him within paragraph 101(1)(d) of the Immigration and Refugee Protection Act. The applicants assert that the rights associated with withholding of removal are greatly restricted, and are in no way equivalent to the protection afforded by asylum status. The Court upheld the decision of Justice Mosley that a successful claim for withholding of removal in the USA is sufficient to deny eligibility for the claim to be referred to the RPD. Savundaranyaga, 2009 FC 31: Justice Mandamin allows the application of an alleged member of the Sri Lankan LTTE. The Court conducts a thorough analysis of the case law pertaining to exclusion and states;...while I have reservations about how far the Board can go in using its negative finding about the applicants credibility as proof of the kind required for exclusion, I note that the Board s inferences from the negative credibility finding do not substantially advance its finding that the applicants role with the LTTE involved low level cultural and musical activity. The Board found that the LTTE was an organization with a limited, brutal purpose. Its analysis focussed on the many reports documenting the international crimes by LTTE against civilian populations and non-combatants. The Board referred to LTTE control of northern Sri Lanka, mentioning control by authoritarian military rule and operation of an unfair court system. It also referred to a LTTE network of publicity and propaganda activities with offices in at least 54 countries. Finally, the Board referred to the LTTE leadership organization on a two tier structure: a military wing and a subordinate political wing. Nowhere does the Board refer to a cultural division or consider the role such a body may have in the LTTE organization. Membership in an organization that has a limited brutal purpose does not automatically result in exclusion by itself. Rather, it creates a rebuttal presumption of complicity or of the two

13 criteria for complicity - a personal and knowing participation and a sharing of a common purpose. Bonilla, 2009 FC 881: The Minister alleged that the applicant was complicit in crimes against humanity during his service in the Columbian military. Justice O'Keefe upheld the RPD s decision that the civilian population was illegally targeted in Colombia....It is implausible that the Applicant was not aware of the allegations of torture and other crimes against humanity being levelled at Colombia s military during this period. It was well known in Colombia... Did the Board commit a reviewable error when it concluded that the Applicant was complicit in crimes against humanity perpetrated by the Colombian army or the Colombian military? The most significant issue that arises in this analysis is whether the Board found that there was a nexus to the systemic targeting of populations and the Applicant s service in the Uraba region... I find that it was reasonable and I would not allow the judicial review on this ground. Did the Board err in law by applying definitions of crimes against humanity from the Rome Statute retroactively? There has been no arbitrary date imposed on finding culpability in torture... Did the Board err in law by finding that crimes against humanity could be committed in the context of an internal armed conflict?...it may be the case that the Colombian army was fighting a complex conflict with many different facets. However, as international law dictates, this does not absolve individuals from accountability in cases where they are found to be complicit in crimes that go beyond the necessities of war... Li, 2010 FCA 75: This is an appeal by the Minister of the decision of a PRRA officer. The officer denied the applications of two Chinese brothers who were not eligible for an RPD hearing due to serious criminality. Justice Heneghan set aside the PRRA officer s decision and also certified two questions: (1) Do pre-removal risk assessment officers have the jurisdiction to exclude persons from refugee protection under section 98 of the IRPA (the Act) and find them described in section 112(3)(c) of the IRPA? (2) Does section 112(3)(c) of the IRPA only apply to rejections by the Refugee Protection Division on the basis of Section F of Article 1 of the Refugee Convention or does it also apply to rejections by pre-removal risk assessment officers on the basis of Section F of Article 1 of the Refugee Convention? The FCA allowed the Minister s appeal and determined that the PRRA officer does have jurisdiction to deal with matters of exclusion. The FCA stated:

14 The issue is whether persons who would otherwise fall within the exclusion can only be excluded if they enter Canada as refugees. The intent of the Convention is to prevent certain persons who are deemed to be undeserving of international protection from invoking the Convention to claim Convention Refugee status. The achievement of that objective does not depend upon the timing of the claim for Convention Refugee status but rather on the fact of claiming that status. It is submitted that the FCA correctly examined the intent of the Convention. This is in contrast to the approach taken in Solis Perez below. NATURAL JUSTICE: Solis Perez, 2009 FCA 171: This is an appeal of the decision of Justice Martineau. The issue is whether a PRRA officer's decision can be challenged after the subject of the decision has been removed from Canada. Justice Noel for the FCA upheld the decision of the trial division and confirmed that a PRRA application is rendered moot post removal. While there is logic in the Court's reasoning, it is submitted that these decisions allow for a potential injustice to be committed. When a PRRA officer's decision is unreasonable, it is imperative that the court strike it down in order to remedy a potential life and death situation. It is respectfully submitted that the Court over looked the most essential purpose of the PRRA in general and refugee protection in particular: To protect life, liberty and the security of the person in accordance with Canada s International legal obligations. The FCA states: We agree that the application for judicial review is moot, and in particular with the statement made by Martineau J. at paragraph 25 of his reasons where he says: [ ] Parliament intended that the PRRA should be determined before the PRRA applicant is removed from Canada, to avoid putting her or him at risk in her or his country of origin. To this extent, if a PRRA applicant is removed from Canada before a determination is made on the risks to which that person would be subject to in her or his country of origin, the intended objective of the PRRA system can no longer be met. Indeed, this explains why section 112 of the Act specifies that a person applying for protection is a person in Canada. Fernandez 2009 FC 192: Justice Legacé found two violations of natural justice pertaining it s handling of a report from the Canadian Mission in Mexico, and a psychological expertise. He states: Firstly the Board decided to conduct an inquiry into allegations received from a preliminary report by an immigration officer at the Canadian mission of the Immigration and Refugee Board of Canada (CIC) in Mexico City in Mexico. The Court wrote:

15 Since the RPD decided to conduct its own inquiry, it had to complete it and give the applicant an opportunity to answer the questions raised at the preliminary stage of the inquiry. Since the RPD suggested that it would set a date for the continuation of the hearing it had decided to adjourn for a very specific reason, it had to respect its own procedure before deciding the applicant's claim for refugee protection. Secondly, the Board cast doubt on the applicant's credibility with regard to her allegation that she feared physical and psychological abuse by a former spouse who was also a commanding officer. Yet the Board ignored the psychological expertise even though it established that she suffers from Post traumatic stress syndrome: Yes, the RPD stated in its decision that it had "analyzed all of the evidence", and yes, it must perhaps be presumed that it read the report... No decision was made on this report accepted conditionally, no mention was made of it even having been read, and no comment was made on its relevance and the weight it was to be given. The report was an important piece of evidence for the applicant, yet the RPD seems to have completely ignored it after accepting it subject to a decision on its late filing, a decision that has still not been made. Kumar 2010 FC 161: Justice Zinn strikes down this claim against India in which the applicant alleges being tortured by the police. The Court found the credibility findings were unreasonable and also found that the Board violated natural justice. The Court refers to case law distinguishing between proper procedures for plausibility findings vs. inconsistencies. It is submitted that this hair splitting of similar concepts is murky and leads to inconsistent practises. The Court states: Further, the Board s focus on the applicant s submission that the he was in hiding but yet out with his sister when the police arrived might be characterized as either an inconsistency finding or an implausibility finding. If it is an implausibility finding then the Board was not obligated to put it to the applicant: Appau v. Canada (Minister of Employment and Immigration) (1995), 91 F.T.R. 225 at However, if it is a finding of inconsistency then the Board was obligated to put it to the applicant for a response: Danquah v. Canada (Secretary of State), [1994] F.C.J. No at para. 6 (T.D.) (QL). The Board viewed it as an inconsistency rather than implausibility as is evident from its statement in the decision: This is another inconsistency. The Board was therefore obligated to put its concern to the applicant and it was a breach of procedural fairness in not doing so. Mitchell Goldberg was admitted to the Quebec Bar in After volunteering for a human rights organisation in Guatemala, he began his Refugee and Immigration Law practice in Montreal in He is a member of the Canadian Council For Refugee s legal affairs committee, the executive of the Canadian Bar Association s Québec Immigration Section, the Immigration Committee of the Quebec Bar Association, the Federal Court s National Immigration Bar s Liaison Committee, and the National

16 Executive of the Canadian Bar Association's Immigration section.