Date: 20090205
Docket: IMM-2124-08
Citation: 2009 FC 123
Ottawa, Ontario, February 5, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ESAD
LECALIAJ
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Immigration and
Refugee Board (Board) on April 18, 2008 (Decision) refusing the Applicant’s
application to be deemed a Convention refugee or person in need of protection
under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of the Federal Republic of Yugoslavia and fears
persecution, torture and a risk to his life due to his political views and
because he is Albanian and Muslim. The Applicant resided in the province of
Montenegro.
[3]
While
the Applicant was studying in Kosovo in 1983-1984, the Serbian police appeared
periodically to try to send home all of the students who were ethnic Albanians.
When students refused to go, they were beaten and insulted. The Applicant
recalls three specific incidents of this nature involving him during his
studies. The Serbian authorities did not allow the Applicant to complete his education;
however, he completed his studies in photography at a different school.
[4]
In
January 1986, the Applicant decided to leave his country and seek refuge abroad
because of the abuses he had suffered and the oppressiveness of the Serbian
regime. The Applicant obtained a passport issued by Yugoslavia and traveled
from Montenegro to Belgrade, Yugoslavia, and then to Amsterdam. From Amsterdam he travelled
to Mexico
City,
arriving on January 16, 1986. About three days later, the Applicant walked from
Tijuana to the U.S.A. Border near San Diego, U.S.A. He was detained
at the U.S.A. border by
immigration officers and held in detention at El Sendero. He stayed in the
detention centre for eight days until he was released on January 26, 1986. The
Applicant indicated to the officers that he wanted to go to New York and he asked
for political asylum in the U.S.A. based on his fear of persecution as an
ethnic Albanian living in Yugoslavia from the oppressive
Serbian regime.
[5]
On
August 28, 1990, the Applicant’s asylum claim was rejected and he was ordered
to leave the U.S.A.; however, he remained in the U.S.A. without
status. He was told he could not make another asylum claim for ten years. In
2002, he attempted another political asylum claim in the U.S.A., which was
rejected in December 2004.
[6]
In
1997, the Applicant’s younger brother, Rifat Lecaj, arrived in the U.S.A. and made an
asylum claim. His claim was based on the mistreatment he suffered in Yugoslavia. His claim
was accepted and a green card was granted to him.
[7]
On
February 18, 2005, officers from the Homeland Security office came to the
Applicant’s house to look for him. They incarcerated him in New Jersey where he was
detained for three months and five days. On May 25, 2005, he was deported from
the U.S.A. to the Federal
Republic of Yugoslavia. The Applicant traveled on a one-way travel
document issued by the Yugoslav embassy in the U.S.A.
[8]
When
the Applicant arrived at the airport in Belgrade, two
policemen questioned him for some time. They asked him where he had been and
for how long. The officers recorded this information and released him. After
the Applicant arrived in Montenegro, he stayed with family
in Martinovice. He went with a friend to a café in Palv about a week after his
arrival in Montenegro and two
police officers asked for his name and told him to present himself at the
police station the next day. The Applicant did not go because he was afraid
they would beat him or force him to perform military service.
[9]
On
June
6, 2005,
the police came to the Applicant’s house to find him but he was not there at
that time. When he returned home, his father informed him that the police had
been to the house looking for him.
[10]
On
June
15, 2005,
the police again came to the house and took the Applicant to the police
station. The police told the Applicant that he was obligated to perform
compulsory military service. The Applicant refused, as he was no longer of
military age, which is between 25 and 35. He was already 41 years old. The
police asked the Applicant why he had not gone to the police station as
previously ordered and the Applicant did not answer. The police insulted the
Applicant and beat him unconscious with batons. When the Applicant came to, he
was in the hospital with a large cut above his right eye. He was given stitches
and he still has a scar on his back from the beating. The Applicant was in the
hospital for two days.
[11]
After
the Applicant’s discharge from the hospital in June 2005, he decided to protect
himself from the police by hiding in his uncle’s village in Vuthaj, Montenegro and with a
friend in Albania.
[12]
On
June
10, 2005,
the Applicant returned to Martinovice in Montenegro and decided
to change his surname so that the police would not recognize him. He changed
his surname from Lecaj to Lecaliaj with the help of his brother. The Applicant
obtained a passport with his altered surname.
[13]
In
early 2005, the Applicant bought a Danish passport for E1000 from a man in Plav
and used it to buy a plane ticket.
[14]
On
August 17, 2005, he left Montenegro for Zagreb, Croatia,
and from Zagreb he traveled
to Paris and then to Cuba. The Applicant remained in Cuba for three
days until August 21, 2005 and then flew to Toronto that day. At
Toronto Pearson International Airport, he
showed customs officers his false Danish passport, but the officers did not
believe it was genuine. The Applicant then told them the truth and produced his
real Yugoslavian passport. The Applicant was informed that he would be detained
and sent to an immigration holding center. The Applicant was returned to the
airport the next day where he made a refugee claim.
[15]
The
Applicant told the officers that he had come to Canada to make a
refugee claim and was afraid for his life if he returned to Yugoslavia. The
Applicant explained that he had told the Yugoslav police that he refused to
perform military service.
DECISION UNDER REVIEW
[16]
The
Board concluded that the Applicant was neither a Convention refugee nor a
person in need of protection.
[17]
The
Board held that Montenegro declared independence from Serbia and Montenegro on June 3, 2007 after a
referendum held on May 21, 2007. Montenegro was recognized as a UN
member state on June 28, 2007. The Applicant’s passport predates the
State Union of Serbia and Montenegro and the Republic of Montenegro as an
independent state.
[18]
The
Board noted that nationals of Montenegro can return voluntarily to any region of
Montenegro by way of
the Voluntary Assisted Return and Reintegration Programme run by the
International Organization for Migration (IOM) and co-funded by the European
Refugee Fund. The IOM provides advice and help with obtaining travel documents
and booking flights, and organizes reintegration assistance in Montenegro. The
program, established in 2001, is open to others as well as failed asylum
seekers. The Board was satisfied that the Applicant was a citizen of Montenegro by birth and
would have a right to return to Montenegro.
[19]
The
Board noted that the Applicant entered Yugoslavia without
difficulty after living in the U.S.A. for a period longer
then nineteen years. The return of the Applicant also pre-dates the
independence of the Republic of Montenegro that took place on June
3, 2007.
[20]
The
Board found that Montenegro is a fledgling independent parliamentary
republic with a total population of less than 700,000 persons made up of
several ethnic groups. After the referendum of 2007, elections were held for a
president and a multi-party assembly. These elections were observed and were considered
by the Organization for Security and Cooperation in Europe to be in accordance
with international standards. A new constitution was adopted and written for
presentation to Parliament in the spring of 2007. Montenegro uses the
Euro as its official currency and maintains its own budget despite a severe
unemployment rate.
[21]
The
Board also found that Montenegro law prohibits arbitrary
arrest and detention and the government generally respects these prohibitions.
The interior ministry controls both the national and border police forces. The
Board found that these forces are generally effective in maintaining basic law
and order. The government investigates police abuses, but criminal procedures
and sentences against police are rare. During 2006, 19 police officers were
dismissed for abuse of office and exceeding authority. Police corruption has
been a problem and the close-knit society discourages the reporting of
corruption.
[22]
The
Board concluded that arrests require a judicial warrant and authorities may
detain suspects for up to 48 hours before bringing them before a judge and
charging them. A judge makes an initial determination on the legality of a
detention and an arraignment has to take place within a specified period of
time. The law also provides access to an attorney, but this does not always
occur. On July 27, 2006, the Assembly Republic of Montenegro’s Unicameral
Assembly enacted general amnesty for prisoners unless they were
convicted of trafficking in persons, war crimes or other crimes prosecuted
under international law.
[23]
The
Board found that states are presumed to be capable of protecting their
citizens, except where the state is in a complete state of breakdown. The
Applicant alleged that state protection was inadequate, but the Board concluded
that the evidence did not establish this on a balance of probabilities. The
presumption of state protection applies equally to cases where the state is
alleged to be the persecutor. International refugee protection is not intended
to permit someone to seek better protection abroad than they would receive at
home.
[24]
The
Board pointed out that the Yugoslav army ceased to exist with the collapse of Yugoslavia and an
amnesty for draft evaders and deserters was granted in 2001. Prior to
separation, Serbia and Montenegro drafted men
between the ages of 18-25 and, in practice, men were seldom called to serve
after age 35. Reservist obligations applied to age 60 but, since 2000, reservists
are seldom called upon.
[25]
In
August 2006, compulsory military service in the Republic of Montenegro was
abolished. The Board noted that the Applicant’s alleged incident of police
brutality occurred prior to the independence of Montenegro and within
the State Union of Serbia and Montenegro.
[26]
The
Board concluded that, based on the documentary evidence and the facts of the
case, the Applicant had not rebutted the presumption of state protection with
clear and convincing evidence of the state’s inability to protect him.
ISSUES
[27]
The
Applicant raises the following issues:
1) Is there any
evidence which supports the Applicant’s submissions with respect to the issues
set out below, and are any of these issues, either individually or in
combination, serious ones?
2) Did the Board
err in law, breach fairness, err in fact and exceed its jurisdiction in
purporting to reject the Applicant’s claim in that the reasons are inadequate
or otherwise erroneous in relation to the evidence of Dr. Fisher and the
presumption of state protection?
STATUTORY PROVISIONS
[28]
The
following provisions of the Act are applicable in these proceedings:
|
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
(b) not having a country of nationality, is
outside the country of their former habitual residence and is unable or, by
reason of that fear, unwilling to return to that country.
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.
Person in need of protection
(2) A person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
|
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 à 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;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à 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 à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à 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
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à 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.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD OF REVIEW
[29]
In Dunsmuir v.
New Brunswick, 2008 SCC 9, the
Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[30]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. In
determining a standard of review, the Court should consider whether prior
jurisprudence has determined the appropriate standard of review for a
particular question.
[31]
One
aspect of the Applicant’s complaint is that the Board simply ignored the highly
relevant evidence provided by Dr. Fischer in his report. Thus, in
light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable in this issue to be reasonableness. When reviewing a decision on the
standard of reasonableness, the analysis will be concerned with “the existence
of justification, transparency and intelligibility within the decision-making
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”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene 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.”
[32]
For
a procedural fairness issue, like the adequacy of a board’s reasons, the
standard of review is correctness: Thomas v. Canada (Minister of Citizenship
and Immigration), [2007] F.C.J. No. 1114 at paragraph 14; Adu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 565, at paragraph 9. According to
Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539 at paragraph 100, “it is for the courts, not the Minister,
to provide the legal answer to procedural fairness questions.”
ARGUMENTS
The
Applicant
[33]
The
Applicant points out that the Board did not reject his credibility. He says,
however, that the Board erred in failing to consider the expert report that
contradicted the Board’s own thesis. Dr. Fisher concluded that there was a
well-founded fear of persecution to the Applicant based on his particular
circumstances; however, the Board rejected his claim anyway.
[34]
The
Applicant argues that in Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.), the Board committed
the same errors as in the present case, which include ignoring evidence,
failing to analyze the documentary evidence, failing to provide adequate
reasons and failing to give weight to the evidence of an expert and/or failing
to indicate whether the expert was accepted as an expert.
[35]
The
Applicant submits that the affidavit of Dr. Fischer included a detailed
discussion of problems that ethnic Albanians face in Montenegro, as well as
Anti-Americanism, the current Montenegrin government’s human rights record
(including “a corrupt and politicized police force”), the promotion of the
Montenegrin identity (which does not include minorities) as well as the status
of draft evaders that is unclear even though the draft has been abolished. The
Applicant says that the evidence of Dr. Fischer is credible, clear and
convincing.
[36]
The
Applicant argues that Canada (Attorney General) v. Ward, [1993] 2
S.C.R. 689 makes it clear that a higher burden of proof than is normally
required on a balance of probabilities standard is not required to meet the
legal standard for state protection. The Federal Court of Appeal in Carillo
v. Canada (Minister of
Citizenship and Immigration) 2008 FCA 94 (Carillo) states at
paragraph 38:
…A refugee who claims that the state
protection is inadequate
or non-existent bears the evidentiary burden of adducing evidence to that
effect and the legal burden of persuading the trier of fact that his or her
claim in this respect is founded. The standard of proof applicable is the
balance of probabilities and there is no requirement of a higher degree of
probability than what that standard usually requires. As for the quality of the
evidence required to rebut the presumption of state protection, the presumption
is rebutted by clear and convincing evidence that the state protection is
inadequate or non-existent.
[37]
The
Applicant submits that he presented clear and convincing evidence to rebut the
presumption of state protection and that the Board committed an error by finding
that evidence insufficient.
[38]
The
Applicant also submits that the Board did not address the expert’s affidavit and
focused on state protection only. The Applicant contends that Dr. Fischer’s affidavit
proves that state protection would not be sufficiently forthcoming. Had the
Board considered that aspect of the affidavit, its reasons may have been
different. The Applicant says the Respondent’s argument amounts to speculation
as to what the Board would have made of the affidavit of Dr. Fischer. However,
the Court does not have the jurisdiction to accept speculation.
The
Respondent
[39]
The
Respondent submits that the Applicant’s claim was rightfully dismissed because
of the availability of state protection. Further, the Respondent argues that the
Applicant does not challenge the findings of the Board but, instead, argues
that the Board failed to consider an affidavit confirming the validity of his
objective fear of persecution. However, the Board made no adverse findings
regarding the objective basis of his fear and, since the Applicant’s affidavit
provided no concrete evidence or examples of the treatment of deserters in the Republic of
Montenegro, the report was speculative and immaterial to the Board’s findings.
Therefore, the Respondent submits that the Applicant has failed to establish any
error on the part of the Board.
[40]
The
Respondent points out that the Republic of Montenegro abolished
compulsory military service in August 2006, prior to the Applicant’s hearing.
The Board examined the Applicant’s stated fear and found that, even if the Applicant
feared persecution, state protection from the newly formed State of Montenegro
would be forthcoming. The Applicant has not demonstrated any error with the
Board’s finding and this application ought to be dismissed on that basis.
[41]
The
Respondent submits that Dr. Fischer’s affidavit focuses primarily on the
legitimacy of the Applicant’s fear of persecution. Since the Board’s Decision
turns on state protection, the Respondent argues that the Board did not need to
address the report. The affidavit stated that the Montenegrin police force is
corrupt and politicized. However, the Board acknowledged these problems and
concluded that state protection would be available to the Applicant. The
Affidavit did not support the conclusion that all avenues of protection would
be unavailable to the Applicant if he were to return to Montenegro. The
affidavit also does not provide examples or statistics regarding the treatment of
draft evaders since the abolishment of compulsory service. Therefore, the
opinion offered by Dr. Fisher is speculative in the Respondent’s view and
insufficient to rebut the presumption of state protection.
[42]
The
Respondent reminds the Court that an applicant must adduce evidence that is
relevant, reliable and convincing and must satisfy a trier of fact on a balance
of probabilities that state protection is inadequate: Carrillo at
paragraph 30; Ward and Hinzman v. Canada (Minister of Citizenship and
Immigration) 2007 FCA 171. The Respondent also points out that the
Applicant left his country before the formation of his new country of
citizenship, Montenegro. The
Applicant has never approached Montenegrin authorities for protection.
[43]
In
sum, the Respondent concludes that because the Applicant took no measures to
seek protection in the newly formed Republic of Montenegro, and because
he produced no evidence to show that former deserters have been officially
mistreated or refused protection, he has not provided relevant, reliable and
convincing evidence to suggest protection would not be forthcoming. The Board therefore
properly concluded that he had not rebutted the presumption of state
protection.
ANALYSIS
[44]
The
Board’s Decision reveals that the Board considered this as a one-issue case
(draft evasion) and never clearly identified the range of risks the Applicant
faced, or how those risks related to the Board’s determinative findings on
state protection. In my view, this is important because the evidence presented
by Dr. Fischer goes well beyond the issue of draft evasion and the Board’s
failure to deal with that evidence is directly related to the persecutory risks
put forward by the Applicant.
[45]
As
counsel for the Applicant made clear to the Board, and as Dr. Fischer
emphasizes in his report, the risks alleged by the Applicant are not only
related to his evasion of the draft. The Applicant also alleged that he was at
risk from both the state of Montenegro and the general
population for a variety of reasons.
[46]
In
my view, then, the Board committed an initial reviewable error in failing to
identify and address the risks that were claimed by the Applicant. It is not
sufficient to say that the Board somehow dealt with those risks as part of its
treatment of state protection. I do not think that the Board can adequately
address state protection issues unless it also articulates an awareness of
which risks the Applicant says the state cannot, or will not, protect him
against.
[47]
Further,
there was no issue concerning the Applicant’s credibility regarding his account
of being arrested and beaten. By characterizing his claim as being solely about
his fear as a draft dodger, the Board committed an unreasonable error.
[48]
The
Board’s error concerning the risks alleged also infects its analysis of state
protection and, in particular, its failure to mention Dr. Fischer’s report. It
may well be that the Board neglected to refer to the evidence in that report
because it regarded Dr. Fischer’s evidence about general risks in the country as
having no relevance to the draft evasion issue, or because it felt that what
Dr. Fischer had to say about draft evasion was too speculative for mention and
consideration. In any event, the Decision is unreasonably flawed for this
reason and the matter needs reconsideration.
[49]
Dr.
Fischer is a professor of Balkan History and chair of the Department of History
at Indiana University, Fort Wayne. He is
frequently consulted on Balkan affairs and has provided advice to many
governments and organizations on Balkan issues. Notably, he has even assisted
the Immigration and Refugee Board of Canada in updating their materials on
Albanian issues. The Applicant made it clear that Dr. Fischer was brought
forward as an expert witness both for his knowledge of the situation in Montenegro and because
of his expert opinion on the risks faced by the Applicant; therefore, it was
extremely important from the Applicant’s perspective that the Board address Dr.
Fischer’s evidence. And yet, the Board fails to mention that evidence at all
and provides no explanation for its omission. While there is a presumption that
the Board has considered all of the evidence before it, in the circumstances of
this case and the Applicant’s strong reliance upon that evidence, that
presumption has been rebutted.
[50]
Dr.
Fischer provided extensive evidence to the Board in this case regarding the
risks that the Applicant faced if he was returned to Montenegro, including
the unwillingness of the state to provide effective protection to someone like
the Applicant against those risks.
[51]
Dr.
Fischer said that the Applicant was particularly at risk in Montenegro for the
following reasons:
1.
His
status as an ethnic Albanian;
2.
His
status as a Muslim in a predominantly orthodox Christian society;
3.
His
American connections;
4.
His
status as a draft evader;
5.
The
threats and physical harm he has suffered at the hands of local authorities in Montenegro.
[52]
Dr.
Fischer says that the state of Montenegro would be unwilling or
unable to protect the Applicant against the risk of persecution and physical
harm for the following reasons:
1.
Ethnic
Albanians and religious minorities have suffered persecution historically in Montenegro, which
persecution is unlikely to come to an end under the new regime;
2.
Albanians
and religious minorities face popular and official mistreatment in Montenegro, which is
intent upon building an oppressive national identity around Montenegrin
nationality;
3.
The
government of Montenegro only pays
lip-service to outward forms of democracy for opportunistic reasons while, in
reality, it is a corrupt dictatorship that allows no opposition from the press
and has a corrupt and politicised police force;
4.
Detainees
are at risk of physical abuse and mock executions;
5.
Even
though the draft was abolished with the creation of an independent Montenegro,
“it is still unclear how the new state will deal with those who avoided the
draft during the Serbia-Montenegro period of 2003-2006” and “[e]ven if [the
Applicant] avoids state prosecution, he could face difficulty from society at
large” because “Montenegrins are a martial people” and draft evaders “have
never been treated kindly and can expect little official protection.”
[53]
The
Respondent argues that “[g]iven [that] the Board’s Decision turned on state
protection, the Board did not need to address the content of the report.” The
Respondent also takes issue with the contents of Dr. Fischer’s report and
points out that it provides no examples or statistics regarding draft evaders
and that it is speculative. In fact, the Respondent says that the Board did not
need to address Dr. Fischer’s report because it does not contradict anything
the Board says and it does not provide evidence of a lack of state protection.
[54]
While
Dr. Fischer’s report can be criticized in many ways, his message is clear and
uncontradicted: Albanians and religious minorities are at risk of physical harm
in Montenegro from both
the general population and the state and they can expect little in the way of
protection from a corrupt and repressive state.
[55]
In
my view, the report contains clear and convincing evidence that flatly
contradicts the Board’s determinative conclusion that the state is both willing
and able to protect the Applicant; therefore, the Board had the duty to address
that conflicting evidence.
[56]
Therefore,
I find that reviewable errors have occurred in this case. The Board’s failure
to address the risks identified by the Applicant and to address the evidence of
Dr. Fisher that contradicts the Board’s conclusions was unreasonable. The
matter requires reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
Application is allowed and the matter is returned for reconsideration by a
differently constituted Board;
2. There is no
question for certification.
“James
Russell”
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