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Refugee Protection Division Case Law Updates

Refugee Protection Division 

IMMIGRATION — Person in need of protection — Applicant was 31-year-old Tamil male — Applicant was citizen of Sri Lanka and made claim for refugee protection based on his political opinion and race — Applicant stated that he left Sri Lanka in July 2014 after having been kidnapped, threatened and beaten for working for Tamil publication.— Refugee Protection Division accepted medical evidence which showed that, at some point, applicant had been a victim of torture — However, Refugee Protection Division concluded that applicant had not attended pro-media rallies, had not been kidnapped and tortured in July of 2014, and had not even been in Sri Lanka at that time — Credibility concerns caused Refugee Protection Division to reject authenticity of two pieces of evidence which, if accepted, would have shown that applicant was in Sri Lanka in July of 2014 — Applicant applied for judicial review of decision of Refugee Protection Division Application dismissed — There were negative credibility findings that had not been challenged — Corroborating evidence was assessed and dismissed because it could have been created by applicant — Accordingly, Refugee Protection Division’s treatment of corroborating evidence was reasonable — Refugee Protection Division was not obliged to consider whether scars from past torture would possibly lead to further persecution

Nagalingam v. Canada (Minister of Citizenship and Immigration) (February 5, 2016, Sandra J. Simpson J., Federal Court) 263 A.C.W.S. (3d) 1009

IMMIGRATION — Person in need of protection — Applicant was citizen of Afghanistan — He sought protection in Canada on basis of membership in particular social group, risk to life or of cruel and usual treatment or punishment and danger of torture — Refugee Protection Division rejected his claims because it did not find basis of his claim to be credible and it found applicant had Internal Flight Alternative (“IFA”) — Refugee Protection Division also found applicant had failed to rebut presumption of state protection — Applicant applied for judicial review of Refugee Protection Division decision — Application dismissed — Refugee Protection Division credibility findings were not unreasonable — There was no reviewable error in manner in which Refugee Protection Division made its findings about IFA and state protection — Refugee Protection Division was not obliged to consider further post-hearing submissions and documents that did not comply with Refugee Protection Division Rules (Can.)

Omid v. Canada (Minister of Citizenship and Immigration) (February 15, 2016, E. Heneghan J., Federal Court) 263 A.C.W.S. (3d) 1010

IMMIGRATION — Judicial review — General — Applicant sought judicial review of decision of Refugee Protection Division (“RPD”) that applicant had abandoned his claim for status as Convention refugee or person in need of protection — Respondent Minister brought motion to dismiss application for judicial review and vacate hearing date — Minister claimed that application is moot because applicant had filed application with Refugee Protection Division to have his claim reopened, and Refugee Protection Division had allowed that application — Motion granted — Application was moot because Refugee Protection Division had allowed applicant’s application to re-open claim — Applicant would have opportunity to put forth his entire claim for refugee protection — Any concerns applicant had about Refugee Protection Division believing him in re-opened refugee proceeding would have to be addressed before Refugee Protection Division in that proceeding

Kardava v. Canada (Minister of Citizenship and Immigration) (February 9, 2016, Richard F. Southcott J., Federal Court) 263 A.C.W.S. (3d) 1007

IMMIGRATION — Inadmissible and removable classes — Terrorism — Refugee claimant was 64-year-old citizen of Iran who alleged fear of religious persecution due to being Christian — Claimant had retired after serving 28 years on Iranian police force in criminal investigation department — Refugee Protection Division (RPD) found that although there was no specific evidence of claimant’s direct involvement in any acts by agents of Iranian regime which were crimes against humanity, given claimant’s voluntary service of 28 years and his senior rank in Iranian police force, which actively supported other security/enforcement agencies, it was reasonable to conclude that he was well aware, not only of activities of other agencies, but also of police’s involvement with and support of their actions against Iranian people — Given claimant’s profile, Refugee Protection Division found it was also reasonable to conclude that he would have been involved directly or indirectly through direction to others in acts which have been determined by international law to be crimes against humanity — Refugee Protection Division found that claimant was person referred to in art. 1F (a) of Convention and was excluded from refugee protection by virtue of s. 98 of Immigration and Refugee Protection Act (Can.) — Refugee Protection Division denied claim — Claimant applied for judicial review — Application allowed; matter returned for re-determination by different panel member of Refugee Protection Division— Test for complicity requires that there be serious reasons for considering that individual voluntarily made knowing and significant contribution to crime or criminal purpose of group alleged to have committed crime — Here, RPD’s overall assessment of claimant’s alleged complicity was at best generalized, and its conclusion that there were serious reasons for considering that claimant had committed crime as contemplated by art. 1F (a) of Convention could not be justified — Refugee Protection Division acknowledged that there was no specific evidence of any direct involvement by claimant in any crimes or crime against humanity committed by other enforcement agents within Iranian regime — Refugee Protection Division failed to fully assess whether claimant had personally made significant and knowing contribution to some crime or crime against humanity Refugee Protection Division essentially found claimant guilty by association — There was no evidence before Refugee Protection Division that claimant had participated in any abuses or played any role in working with other enforcement agencies — RPD’s erroneous conclusion concerning claimant’s complicity was sufficient in itself to return matter to Refugee Protection Division for re-determination

Habibi v. Canada (Minister of Citizenship and Immigration) (February 26, 2016, Keith M. Boswell J., Federal Court) 263 A.C.W.S. (3d) 1006
IMMIGRATION — Refugee status — Procedure — Vacating refugee protection — Refugee claimant was citizen of Somalia who entered Canada and made refugee claim in 2007 — Refugee claim was accepted by Refugee Protection Division, May 6, 2008 — Claimant had been charged with sexual assault crimes in United States that predated his refugee hearing but alleged that he was only informed of existence of charges and warrant from Canadian Border Services Officer during December 2009 interview — Claimant was accused by State of Minnesota of committing offences arising from two incidents in which claimant fondled breasts and pubic area of female patients under guise of medical treatment — Claimant was stripped of his medical license because of these charges — Crimes did not involve any weapons or threats however aggravating factors were noted in vulnerability of victims involved, claimant’s position of authority and evidence showing that he may have fled to escape charges — Board found that claimant was aware that he had been charged with crimes in United States prior to his refugee hearing and had knowingly withheld or misrepresented information to Board that granted him refugee status — Board found that claimant’s crimes were “serious” for purposes of determining whether he should be excluded under art. 1F(b) and if claimant had been forthcoming with original panel of Board, it would have considered him excluded from refugee protection under art. 1F(b) and this would have been determinative of claim — Board vacated claimant’s convention refugee protection pursuant to s. 109(1) of Immigration and Refugee Protection Act (Can.) — Claimant applied for judicial review — Application allowed — Decision quashed and matter returned for reconsideration by different Board member — Evidential basis for finding crimes “serious” was somewhat circumstantial and speculative, and Board further rejected expert opinion on point for no acceptable reason, effectively appointing itself as expert on this issue — Board did not refer to any cases it would regard as providing relevant guidance — Decision was simply based upon what Board thought was serious, not upon reliable evidence as to what Canadian law regards as serious — Board placed itself in position of expert on criminal law, and did not refer to any evidence on issue of what such crimes would attract as possible prison term — This was unreasonable — Board was not expert in criminal sentencing and could not just designate crimes as “serious” under Canadian criminal law on basis of its own opinion — Board committed reviewable error when it found crimes were serious for purposes of art. 1F(b)

Hersy v. Canada (Minister of Citizenship and Immigration) (February 12, 2016, James Russell J., Federal Court) 263 A.C.W.S. (3d) 1011

IMMIGRATION — Refugee status — Requirements — Refugee claimant was Tibetan citizen born in India, where he had lived all of his life — Claimant’s parents left Tibet after it was invaded by China — Claimant was member of Tibetan Youth Congress and follower of Dalai Lama — Claimant alleged that were he to live in Tibet, he would be persecuted by present Chinese government for his ethnicity, his political and religious opinions, and his family membership as his uncle was former Prime Minister of Tibet until his exile in 2011 — Claimant alleged that he could not return to live in India as he could not renew his expired Registry Certificate — Claimant travelled to United States for his sister’s university graduation in May 2012 and remained there for five months without making claim for asylum — Claimant’s registry certificate for India expired October 8, 2012 — Claimant came to Canada, where sister resided, October 10, 2012 and made refuge claim — Board found that claimant’s failure to file asylum claim in United States indicated lack of subjective fear — Board found that claimant was neither Convention refugee nor person in need of protection — Claimant applied for judicial review — Application allowed; decision quashed and matter returned for reconsideration by different Board Member — Failure to claim in first country of arrival was not grounds for refusing refugee protection — Board failed to properly consider explanations provided by claimant i.e that it was always his intention to seek refuge in Canada, that he had to wait for documents to arrive, including his birth certificate, which he had been told would be required documentation for entry, and that his sister was in Canada — Reuniting with family was valid reason for not seeking refugee protection in first country of arrival when travelling to Canada — Board imposed duty on claimant to seek refuge at first available opportunity in third country when no such duty existed at law — Claimant had objective profile that could put him at significant risk if he returned to Tibet — Board chose to ignore these aspects of claim entirely — This was unreasonable and matter must be returned for reconsideration

Wangchuk v. Canada (Minister of Citizenship and Immigration) (February 9, 2016, James Russell J., Federal Court) 263 A.C.W.S. (3d) 1012

IMMIGRATION — Refugee status — Requirements — Refugee claimant was born in India to Tibetan parents but had never lived in Tibet — Claimant alleged that he could not return to India because India would not recognize him as citizen and that he would be at risk of being deported to China where he would face persecution on basis of his Tibetan ethnicity — Refugee Protection Division (RPD) rejected claim on basis of finding that claimant was entitled to Indian citizenship as acquisition of Indian citizenship was within control of claimant — Claimant applied for judicial review — Application granted; decision under review set aside and matter referred back for redetermination by differently constituted panel — Refugee Protection Division decision was made in fundamental error of law — There was sufficient doubt as to law, practice, jurisprudence and politics of potential country of nationality such that acquisition of citizenship in that country could not be considered automatic or fully within control of claimant

Sangpo v. Canada (Minister of Citizenship and Immigration) (February 22, 2016, Douglas R. Campbell J., Federal Court) 263 A.C.W.S. (3d) 1013

IMMIGRATION — Refugee status — Requirements — Refugee claimant was citizen of People’s Republic of China who alleged fear of persecution based on his religion and membership in illegal church — Claimant alleged that Public Security Bureau raided church service — Claimant went into hiding and subsequently fled China with help of agent and came to Canada where he claimed refugee status — Claimant’s father mailed supporting documents to Canada, including claimant’s hukou (household register), his child’s birth certificate, his marriage certificate, hospital record and summons — Evidence indicated that claimant had blank medical booklet and false marriage and birth certificates sent to his address with intention of using documents to support false refugee claim — Canadian Border Services Agency seized package of documents that had been addressed to claimant’s home in Canada, and submitted that documents it contained did not conform to correct security features — Minister intervened in claimant’s hearing, alleging that claimant’s documents were fraudulent — Board found that use of blank medical documents and fraudulent marriage license to support claim seriously damaged his credibility, such that Board could not rely on other documents provided or his testimony — Board found that claimant was neither wanted by Chinese authorities for his Church membership, nor was he genuine believer in, or member of, Church in either China or Canada — As result of claimant’s attempt to submit fraudulent documents, claim was declared to be manifestly unfounded as per s. 107.1 of Immigration and Refugee Protection Act (Can.) and was denied — Claimant applied for judicial review, contending that it was unreasonable for Board to come to conclusions on authenticity of documents without having benefit of examining original documents that were readily available — Application dismissed — Board had broad latitude with respect to admission of evidence and here gave specific reasons why, in this case, originals were not required — Board was simply exercising its discretion under s. 170 of Act to consider copies that, given their source, Board found to be reliable — Board’s decision was reasonable — Claimant alleged that he turned to church to assist with his medical problems that doctors and medication had not been able to resolve — Unless claimant could objectively establish what these medical problems were and efforts he made to alleviate them before he turned to Church, claimant could not establish central pillar of his claim — Nor could he offset obvious inference that claimant’s father sent him blank medical form so that he could complete it in way that would support central tenet of his claim

Wang v. Canada (Minister of Citizenship and Immigration) (February 11, 2016, James Russell J., Federal Court) 263 A.C.W.S. (3d) 1014

IMMIGRATION — Refugee status — Requirements — Refugee claimants were citizens of China who alleged fear of persecution as Falun Gong practitioners — Claimants came to Canada in December 2013 to visit son who held student visa — Claimants alleged as result of chance meeting with elderly woman in Toronto, they were directed to Falun Gong bookstore and principal claimant joined study class and experienced improvement in neck pain — Female claimant returned to China for six months and principal claimant returned to China for one week during which time he attended secret Falun Gong practice group — Principal claimant returned to Canada on new visitor visa — Principal claimant’s mother telephoned from China to inform him that Falun Gong classmate had been arrested and Public Security Bureau (PSB) was looking for claimant — Claimants subsequently made refugee claims in Canada — Determinative issues were credibility and re-availment of claimants to China — Board found claimants to be neither credible nor trustworthy as witnesses — Board found that principal claimant not being pursued by PSB, that his claims that he began practicing Falun Gong as result of his symptoms and that he attended practice session while in China, were not true and were fabricated for sole purpose of bolstering claim for protection — Refugee Protection Division denied claim — Claimants applied for judicial review — Application dismissed — Although findings on re-availment were not decisive they were part of larger pattern of conduct that indicated that principal claimant was not Falun Gong practitioner wanted by PSB — General lack of credibility extended to all relevant evidence emanating from their testimony — Board considered evidence of activities in Canada but concluded that such evidence did not overcome general credibility concerns — Board’s conclusion that principal claimant pursued Falun Gong in Canada for purpose of bolstering claim for protection was reasonable — There was no evidence that claimant had come to attention of PSB as result of his Falun Gong activities in Canada

Huang v. Canada (Minister of Citizenship and Immigration) (February 10, 2016, James Russell J., Federal Court) 263 A.C.W.S. (3d) 1015

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