Category: Refugee Law

The Court held that withholding of removal in the US does not justify a finding of exclusion under Article 1 E of the Convention: [46] The Board cited the Wangden case in support of its decision. Justice Mosley concluded that “Though a person granted withholding has a more limited range of rights than a person granted asylum under U.S. law, he or she still enjoys several important entitlements. The differences do not undermine my conclusion that withholding of removal is equivalent to recognition as a Convention refugee” (see Wangden v Canada (Minister of Citizenship and Immigration), 2008 FC 1230 at para 75). He also concluded that “holders of withholding of removal status in the United States are Convention refugees within the meaning of paragraph 101(1)(d) of the IRPA” (see Wangden at para 77). Based on the objectives of the IRPA and the wording of section 101(1)(d), Justice Mosley determined that parliament “did not want to assist persons who simply prefer asylum in one country over another. The Convention and the Immigration Act should be interpreted with the correct purpose in mind” (Mohamed v Canada (Minister of Citizenship and Immigration), 127 FTR 241, [1997] FCJ No 400 at para 9) which is, to protect individuals at risk (see Wangden at para 72). All of Justice Mosley’s conclusions were accepted and confirmed by the Federal Court of Appeal. [47] However, the ineligibility decision in the present case is based on section 98 of the IRPA rather than paragraph 101(1)(d) of the IRPA. Paragraph 101(1)(d) of the IRPA is not applicable and a withholding of removal based on section 98 of the IRPA is not a recognition of a Convention Refugee Status. Justice Harrington held in Valaei-Bakhshayesh v Canada (Minister of Citizenship and Immigration), 2011 FC 1130 at para 19, that “Article 1E thereof provides that the Convention does not apply to a person recognized in the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country”. This is not the case here.

The Court set aside a finding that there was no nexus. It was clear that the reason behind the persecution was the applicant's religious beliefs.

The Court set aside a decision based on adequate state protection citing the failure of the tribunal to assess the applicant's personal circumstances.

The Court set aside a decision that there was adequate state protection holding that mere intentions were not sufficient: [15] The bulk of the Board’s decision is taken directly from document 5.3 of the National Documentation Package. This reference enumerates the existing legislation in St. Vincent, proposed legislative measures and the government’s intentions regarding services for victims of domestic violence. This focuses more on good intentions and possible future measures than the actual protections in place. The jurisprudence is clear that findings of state protection cannot solely rely on government intentions and proposed legislations: Clyne v Canada (Minister of Citizenship and Immigration), 2004 FC 1670 at para 8; Mitchell v Canada (Minister of Citizenship and Immigration), 2006 FC 133 at paras 9-10). Nor does the Board’s decision mention the many documents in the record which outline the ineffectiveness of the measures summarized in the cited reference.

The Court set aside a decision where there was a finding of adequate state protection noting: [15] The Board was required to justify its finding that Ms. Varela had not rebutted the presumption, in a transparent and intelligible way (Hazime v Canada (Minister of Citizenship and Immigration), 2011 FC 793, [2011] FCJ No 996 at para 17). The Board did not meet this standard of reasonableness. [16] The Board did not provide any analysis of the operational adequacy of the efforts undertaken by the government of Honduras and international actors to improve state protection in Honduras. While the state’s efforts are indeed relevant to an assessment of state protection, they are neither determinative nor sufficient (Jaroslav v Canada (Minister of Citizenship and Immigration), 2011 FC 634, [2011] FCJ No 816 at para 75). Any efforts must have “actually translated into adequate state protection” at the operational level (Beharry v Canada (Minister of Citizenship and Immigration), 2011 FC 111 at para 9. [17] Here, while the Board acknowledged that the police were unsuccessful in providing protection to Ms. Varela, it failed to assess how the efforts to deal with gang violence had translated into protection for women targeted for sexual assault, other than by reference to evidence of attempts by gang members to avoid detection by changing their style and appearance. [18] The extensive evidence cited by the Board attests to the overwhelming nature of the gang problem in Honduras. That evidence, characterized by counsel as “bleak, dire, endemic and pervasive”, supports Ms. Varela’s position that adequate state protection is not forthcoming for women targeted by gang members for sexual assault. Honduras’ need to approach the international community for support in addressing its problems, relied upon by the Board as evidence of the measures being taken, bolsters Ms. Varela’s contention that Honduras cannot provide such protection adequately itself. [19] To the extent that the Board based its findings on the fact that Honduras is a functioning democracy, it also failed to consider the evidence regarding the situation in the months following Ms. Varela’s attack. Honduras was in a situation of political tension culminating in a military coup in June of 2009. While the Board could have considered whether a change in circumstances had occurred making state protection once again available – Honduras may have rebounded since its elections in November of 2009, for instance – it did not.

In concluding that Dustin likely would be afforded adequate state protection in Belize, the Board appeared to place significant weight on the fact that he and his father had never tested state protection in Belize. However, this finding completely ignored the fact that Dustin was never in any position, while he lived in Belize, to test the adequacy of state protection. He was only three years old when his parents left Belize to come to Canada. It is not immediately apparent how anyone that age could ever personally test the adequacy of state protection. [19] The Board also relied on the following findings in reaching its conclusion with respect to the adequacy of state protection: i. Belize is a functioning democracy with democratic institutions; ii. Although there are reports of inadequate police resources, excessive force and corruption in Belize, the evidence before the Board did not “warrant a finding of a wholesale failure of law enforcement,” such as to place in question “the adequacy of the entire nation state protection mechanisms” or the ability and willingness of authorities to assist the Applicants; iii. There are no reported cases of police impunity. Police have been charged and prosecuted with crimes, including sexual assault, corruption, violence and other abuse; iv. Family violence is prohibited by a law which includes penalties such as imprisonment. The law also enables the family court to issue protection orders against accused offenders, and authorities are empowered to remove children from abusive home environments. In addition, certain government programs have been established specifically to address children’s issues and to coordinate programs for children who are victims of domestic violence; v. Although one source has reported that approximately 50% of neglect cases are withdrawn or not prosecuted, another source has reported that victims or their families are often reluctant to press charges; vi. Concerns about lax investigation are insufficient to undermine the presumption of state protection and do not represent clear and convincing proof of the state’s inability to protect Dustin and Peter; and vii. Local failures to provide effective policing do not amount to a lack of state protection. [20] Based on the foregoing pro forma analysis, the Board concluded that “there is state protection in Belize and there is no serious possibility of persecution or, on balance, a risk of other type of personalized harm if [Dustin] returned to Belize.” [21] In reaching this conclusion, the Board only gave very limited consideration to Dustin’s particular circumstances. Specifically, after stating that it was not persuaded that the police would fail to respond should he require their protection, the Board observed that “production of the transfer of guardianship documents showing [the legal guardianship of his aunt and uncle] could resolve any question of kidnapping [of Dustin by Peter] and do [sic] not illustrate that the police would fail to protect [him from] … child abuse.” [22] The only other consideration given to Dustin’s particular circumstances was when the Board recognized that: (i) he falls short in development areas by Canadian standards; (ii) he may not have access to certain “supports that he requires as assessed by his psychologists or social workers in Canada;” and (iii) he “will enjoy a better quality of life in Canada, receive better social support and will be better loved and cared for here.” [23] I am satisfied that the foregoing analysis fell significantly short of the type of contextualized analysis that was required in the particular circumstances of this case.

The Court set aside a finding of state protection: [30] As I see it, Ms. Gonzalez Palomino presented clear and convincing evidence of a lack of state protection. Indeed, the Board accepted most of it. However, it found that she had, nonetheless, failed to rebut the presumption of state protection because she could have done more. In my view, that conclusion did not take account of the evidence before the Board showing the difficulties of obtaining state protection in Mexico and the apparent inefficacy of well-intentioned statutes whose purposes remain to be realized. The Board cannot conclude that a claimant has failed to meet his or her burden of proof without considering documentary evidence that corroborates the claimant’s account of events.

The Court found the finding that the applicant was not catholic 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] FCJ 1918, para 11.

The Court set aside a decision due to the failure of the officer to mention central aspects of the claim in the analysis although these were mentioned in the summary of the facts.

The Court set aside a negative finding holding that the tribunal had erred in finding generalized risk The applicant had been targeted by gangs and had gone to the police and had been the victim of extortion at the hands of the police. The court held that the tribunal erred in finding generalized risk in the circumstances. The court also found error in the finding of lack of nexus given the evidence disclosed the applicant feared being a victim of rape.