Date: 20110328
Docket: IMM-4830-10
Citation: 2011
FC 374
Toronto, Ontario,
March 28, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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SIRGUN BUDAKH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns an Assyrian Christian citizen of Iraq who, with
respect to being required to return to that country, on October 25, 2005
claimed refugee protection under s. 96 of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA) on the basis of a well-founded fear of persecution for reason
of religion and
under s. 97(1)(b) for risk
to life or cruel and unusual treatment or punishment. By operation of the IRPA, it is
only the Applicant’s claim under s. 97 that has been determined by a Delegate
of the Minister in the negative.
[2]
The reason
for the limited consideration of the Applicant’s claim is the Applicant’s
criminal record in the United
States. The
steps under IRPA leading to the present review are as follows: on May
18, 2005, the Applicant’s claim was suspended under s. 103(1)(a) pending determination
of his possible ineligibility for serious criminality; on November 22, 2005, he
was found to be inadmissible to Canada under s. 36 (1)(b) of the IRPA
for “having been convicted of
an offence outside Canada that, if committed in Canada, would constitute an
offence under an Act of Parliament punishable by a maximum term of imprisonment
of at least 10 years, being a conviction for aggravated sexual assault in the
state of Illinois in March 1999; on May 15, 2007 he was found to constitute a
danger to the public of Canada under s. 101(2)(b) and leave for judicial review
of the decision was dismissed; on August 18, 2008, with respect to a
Pre-Removal Risk Assessment (PRRA) application filed April 7, 2008 under s. 112,
he was found to be at risk if he was returned to Iraq; and on March 5, 2010,
on due process, a review of the decision of August 18, 2008 by the Minister’s
Delegate resulted in a finding that, at that date, he was not at such risk. It
is this latter decision that is the subject of the present Application.
[3]
Because
the Applicant had been determined to be inadmissible on the ground of serious
criminality, the decision under review was conducted pursuant to s. 113(d) which
requires that the PRRA determination only address the
factors set out in s. 97 and, pursuant to s. 113(d)(i), a finding of whether the
Applicant is a danger to the public in Canada at the date of the decision. It
is important to note that the Minister’s Delegate found that the Applicant is
not a danger to the public. As a result, the present Application is limited to
a review of the s. 97 features of the PRRA finding. For ease of reference, s.
97 is quoted in the Appendix to these reasons.
[4]
The March 5, 2010 reversal of the August 18, 2008 positive
PRRA determination is based on the finding that the 2008 opinion is “dated”. In
my opinion, it is important to consider the content of the August 18,
2008 opinion because the task before the Minister’s Delegate was
to determine in what way the personalized risk situation in Iraq had changed vis
a vis the Applicant’s claimed identity as an Assyrian Christian. The
reasons for the August 18, 2008 positive opinion as quoted in the decision
under review are as follows:
The applicant is a member of the Assyrian Church
of the East. He states that he is at risk throughout Iraq and due to his being
a Christian and his having lived in the United States for half of his life. He
believes he would be perceived as being anti-Muslim and a spy because he is a
Christian who lived in the U.S. The applicant stated that there is no
protection from the Iraqi government and that some members of the police are
suspected of being anti-Christian. The applicant states that he cannot relocate
to the North as the Kurdish authorities will not allow him to live there
permanently. The applicant would have to be sponsored by a Kurdish resident and
he states that his only relative who was living in the North (his father’s
sister) is currently living in Syria with her husband and children.
(...)
The May 2008 U.K. Country of Origin
Information Report for Iraq reported that insurgent propaganda often described
the Multi-National Force (MNF) as “Christian Crusaders”. Many Iraqis, including
insurgents, viewed Christians as collaborators of the MNF and infidels and
therefore traitors to Iraq. Tens of thousands of Christians left
their homes and fled to other countries, mainly Jordan and Syria.
The U.K. report also stated that others fled to
the relative safety of the Kurdish-controlled (KRG) north to Christian
villages. However, in its 2007 country report for Iraq, the Department of State reported that since May the KRG
did not allow persons, including citizens from outside the region, to enter
unless a Kurdish resident met them in person and guaranteed their stay.
Similarly those from outside the region seeking to live within the jurisdiction
of the KRG must have a local resident guarantor, and register on arrival with
the KRG Residency Office.
I find the documentary evidence clearly
demonstrates that Christians are at risk in Iraq. I
do not find that the DOS report or the U.K. Operational Guidance note provides
evidence that the situation for Christians has substantially improved since the
UNHCR report.
(Decision, pp. 5 – 6)
[5]
While
the decision of August 18, 2008 makes a critical finding of the risk the
Applicant would face as a Christian in Iraq, the application before the Minister’s Delegate
makes it clear that an evaluation is required of the personalized risk the
Applicant would face as an Assyrian Christian. In the decision, this point is
acknowledged by the Minister’s Delegate:
Counsel has raised several risk-related
themes in his March 2010 submissions, the crux of which appears to be Counsel’s
contention that Mr. Budakh fears religious persecution because he is an
Assyrian-Christian:
To begin with, it is of critical
importance for the Minister to acknowledge, once again, the plight of the
Assyrian -Christian populations of Iraq. For example, for many years, Assyrian-Christians
of Iraq, similar to other minority groups, have
been exposed to cruel and unjust persecutory policies and practices of
discrimination and harassment on account of both the predominant various Muslim
religious groups of Iraq and the Iraqi government, itself.
Moreover, the fact that Saddam Hussein and the Baath Party no longer rule Iraq,
has not reduced the over-all serious risks which Assyrian-Christians currently
face in Iraq, particularly from members of various
Muslim religious groups, both Shia and Sunni. In fact, it is the prevailing
view that the plight of Assyrian-Christians in Iraq has
worsened since the time of the U.S. occupation in 2003, on account of the
rise of radical Muslim fundamentalism throughout the middle-east and elsewhere.
The fact that Mr. Budakh received a positive Pre-Removal Risk Assessment (PRRA)
against Iraq on August 18, 2008 and that Canada Immigration (CBSA) has had a
formal suspension of all removals to Iraq in place, since 2003, only underscores
the aforementioned.
To reiterate, the Applicant’s
circumstances warrant protection as he has a well-founded fear of persecution
and would continue to face a catalogue of compelling and identifiable risks,
ranging from serious discriminatory, physical and emotional abuse through
socio-economic victimization, should he be returned to Iraq, his country of citizenship, as a consequence of:
1. His known membership in particular
social groups, namely the non-Arabic/Christian minority of Iraq
2. His imputed critical political
opinion on account of his background and profile
3. His over-all religious, ethnic,
political and societal undesirability.
(...)
No doubt, the Assyrian/Chaldean-Christian
minority of Iraq continues to exist under severe
disability and, historically, has played a grossly subordinate role to the
considerably larger Muslim-Iraqi population, ostensibly because of its
perceived political, cultural and ideological threat to the welfare of the Iraqi State.
(Decision,
pp. 6 – 7)
[6]
Counsel
for the Applicant also makes it clear that the risks the Applicant would face
if he is required to return to Iraq
is not a generalized risk. This argument is also acknowledged by the Minister’s
Delegate:
Counsel also submits that despite all
Iraqis being subject to difficulties at present, Christians are particularly
targeted:
Needless to say, the ample documentary
evidence confirms that all Iraqis are potentially at serious risk of being
harmed and mistreated by individuals and organizations, both competing for
power and attempting to settle a score, in the absence of a stable Iraqi
government and police forces, willing and able to enforce the rule of law.
However, the serious risks faced by the applicant is not a general risk faced
by all Iraqis.
To begin with, the applicant is a member
of the Assyrian-Christian minority, which comprise about 3% of the population
of Iraq, having been reduced from almost 2
million to about 800,000 since the end of the Gulf War of 1991.
Although the Baath Party is no longer in
power in Iraq, it is evident that Saddam loyalists continue to operate,
wreaking havoc and terror through bombings, beheadings, murders and shootings
of civilians, members of Coalition Forces, civilian representations of
non-governmental organizations, including aid and religious organizations, the
media, opponents of the former regime and Iraqis (including police, security
officers, recruits, translators and drivers), who are perceived to be cooperating
with the Coalition Forces.
(Decision,
p. 7)
[7]
In
response to these submissions, the Minister’s Delegate said this:
While Counsel submits that Christians are
subjected to greater ill-treatment than other Iraqis, he does not compare and
contrast their situation with that of the majority religious/ethnic groups
(Shias, Sunnis, Kurds etc). A recent U.S. report explains the security threats
in Iraq in detail and describes the various militias involved being the Sunni
and Shia militias (Jaish al Mahdi, Al-Qadea in Iraq etc.) and describes that
the violence in Iraq is largely about a Sunni-Shia power struggle. Christians
are not mentioned as being targeted by these major insurgent groups as they are
not identified as a threat to the major players in the Central and Southern
regions.
(Decision,
p. 7)
This remark exposes a striking diversion from
the substance of the Applicant’s application in two respects: with the making
of the remark, on the issue of prospective risk, the Applicant’s identity as an
Assyrian Christian is not mentioned again, and, indeed, rather than address the
risk according to the Applicant’s acknowledged identity as an Assyrian
Christian, the Minister’s Delegate decided on risk by defining the Applicant as
only a “Christian”; and, rather than acknowledge that the Applicant’s claim is
one of personalized risk as an Assyrian Christian, or even as a Christian, the
attempt is made to characterize the risk as only general being that faced by all
Iraqis as a result of the Sunni-Shia power struggle.
[8]
From
the point of the diversion, the balance of the decision is devoted to providing
a number of observations that ground the conclusion that Christians are not
subjected to personalized risk in Iraq: the Christian population of Iraq is
dwindling not because “they are disproportionately falling prey to sectarian
violence”, but rather to a “growing Christian-Iraqi Diaspora” and “there is no
evidence of a religious ‘genocide’” (Decision, p. 8); “Iraq has seen an
improvement in the security situation” (p. 9) and there is an “improvement in
stability” (p. 10); “the government responded to protect the Christian
community and Christian families who had previously fled were [sic] returning home
to Mosul” (p. 11), and this response “demonstrates that effective law
enforcement in Iraq is beginning to be realized and that the Christian
community’s faith and reliance on law enforcement officials is returning (p.
11); there were “approximately 17 reported attacks on Christians in Iraq in the
first 6 months of 2008” and the Christians targeted were mostly owners of
certain businesses, those that contravene Muslim norms, Christian activists,
Christian proselytizers, apostates, and priests (p. 11); “there is little
evidence to suggest that state-agents have been responsible for any
ill-treatment of the Christian population”, “rather the attacks on Christians
have been perpetrated by militias and criminals” (pp. 11 – 12) and “these
attacks have been a by-product of the wider security challenges faced in Iraq
and not a main component of the violence (p. 12); and “the government in Iraq
is committed to providing state protection to the Christian minorities” (p. 12).
[9]
Indeed,
the Minister’s Delegate also makes an Internal Flight Alternative finding:
Having considered Mr. Budakh’s personal
circumstances, I have considered it most likely that he would either wish to
re-establish himself in Baghdad (where he is from) or in the Kurdish
Controlled North (where his parents are from and where there is a large
concentration of Christians).
(Decision,
p. 12)
[10]
The
conclusion to the decision is as follows:
Conclusion on Risk:
I am satisfied, based
on an extensive review of the country conditions in Iraq that Mr. Budakh, as a
Christian, may reasonably decide to relocate to anywhere in Iraq, keeping in mind
that he would likely be most familiar with Baghdad, and that the Northern
Governorates are
considered the most safe.
Mr. Budakh is an adult
male who is neither elderly nor a youth and there is no evidence before me that
he is gay or transgender. He is not encumbered by dependents. There is no
evidence before me that Mr. Budakh is politically active, and although he is
Christian, there is no evidence before me that he is a priest or likely to try
to proselytize if returned to Iraq. There is also no evidence before me that he is likely to
try to sell alcohol or otherwise contravene Islamic norms. Therefore, while Iraq is still facing
security challenges from criminal elements and insurgent/militia groups and
there is no guarantee that Mr. Budakh will not face the same difficulties as
other Iraqis - there is insufficient evidence before me that Mr. Budkah [sic] would
face individualized risk of being targeted for ill treatment by any state or
non-state actors.
Consequently, for all
of the afore stated reasons, I am satisfied on a balance of probabilities that
Mr. Budakh is not likely to face personalized risks as identified in section 97
of IRPA - namely that he is unlikely to be tortured, face cruel or unusual
treatment or be killed if returned to Iraq.
(Decision, p. 14)
[11]
Counsel for the Applicant argues that the decision of the Minister’s
Delegate is fundamentally flawed because it fails to decide on the basis of the
Applicant’s claimed identity; the Internal Flight Alternative finding is
erroneous; and the generalized risk finding misapplies the evidence.
[12]
Counsel
for the Minister’s primary argument in response is that the Applicant is
required to prove risk on a balance of probabilities, and the statistical
evidence of the 17 attacks on Christians out of a Christian population of
between 600,000 to 800,000 (Decision, p. 10) does not support such a finding.
During the course of oral argument, Counsel for the Minister argued that any
judicial review concern about the Internal Flight Alternative Finding is a “red
herring” because the finding is not necessary to consider because the Applicant
has failed to prove risk on a balance of probabilities. In addition, Counsel
for the Minister argues that the Minister’s Delegate’s finding on generalized
risk is supported by the jurisprudence of the Court.
[13]
I
agree with Counsel for the Applicant and find that on each of the three issues
advanced the decision is made in reviewable error.
[14]
First,
the Applicant is entitled to a PRRA finding on the basis of his identity as Assyrian Christian, not just
as a Christian as found by the Minister’s Delegate. In addition, I agree with Counsel for
the Applicant that the decision in Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 applies in the present
case; that is, the more probative the evidence, the more likely the Court will
find error when the Board ignores it (see: Karayel v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1305 at para. 16). Cogent evidence
existed in the record before the Minister’s Delegate that Christians, and,
particularly, Assyrian Christians suffer greatly at the hands of the Muslim
population of Iraq. The following is an
example of evidence before the Minister’s Delegate as referenced at paragraph
18 of the Applicant’s Further Memorandum of Argument:
Further, in the recent United Nations
IRIN Report entitled “Iraq: Christian community faces new wave of
violence,” dated July 15. 2009, the following is noted:
A new wave of violence targeting Iraq’s Christian community has raised questions about the safety
of religious minorities amid concerns about Iraqi forces’ ability to maintain
security after the 30 June withdrawal of US combat forces from cities to outlying
bases. On 12 July, there were five attacks on churches in Baghdad and one assassination in the north that left five dead and
more than 20 injured, according to Iraqi Interior Ministry’s statements.
“These [systematic] attacks on that
specific day mean that there are well-organized militant groups who are still
active unleashing violence and terrorism against Iraqis in general and
Christians specifically,” Younandem Kana, a Christian MP, told Irin.
“Extremist Islamists are
systematically aiming at driving out the remaining 100,000 Assyro-Chaldaic
Christians from the Iraqi capital,” Kamal Sido, a near-east consultant for the
Society for Threatened People(GfbV), aid in a statement on 13 July”.
Finally, the recent United States
Commission on International Religious Freedom (USCIRF) Annual Report 2009—
Countries of Particular Concern: Iraq, dated May 1, 2009, the following is
noted:
In December 2008, the Commission recommended
that the U.S. Department of State should designate Iraq as a “country of
particular concern,” or CPC, based on the ongoing, severe abuses of religious
freedom in the country and the government’s toleration of these abuses, particularly
against Iraq’s smallest and most vulnerable religious minorities.
The religious freedom situation in Iraq
remains grave, particularly for the smallest most vulnerable religious
minorities which include ChaldolAssyrian and other Christians, Sabean
Mandaeáñs, and Yazidis.
In 2003, there were approximately 1.4
million Christians in Iraq, including Chaldean Catholics, Assyrian Orthodox, Assyrian Church of the East, Syriac Orthodox, Armenians
(Catholic and Orthodox), Protestants, and Evangelicals. Today, it is estimated
that only 500,000 to 700,000 indigenous Christians remain in the country.
Christian leaders have warned that the result of this flight may be “the end of
Christianity in Iraq.”
[Emphasis added]
I find that the Minister’s Delegate’s failure to
address the evidence of the specific reality of risk suffered by Assyrian
Christians in Iraq warrants setting the
decision aside.
[15]
Second,
with respect to the purported Internal
Flight Alternatives of the Kurdish Controlled North, for such a finding to be made the
alternative must be reasonable, and in order for it to be reasonable, it must
be found to be possible for the Applicant to access. Counsel for the
Applicant’s argument that the identified alternative in the North is impossible
for the Applicant to access is not addressed in any meaningful way in the
decision rendered. Thus, in my opinion, the Internal Flight Alternative finding
is unreasonable.
[16]
And
third, because
the purported generalized
risk finding is not based on the Applicant’s claimed identity, in my opinion,
it is fundamentally flawed. In any event, in making the
generalized risk argument, Counsel for the Minister relies on Justice Snider’s
decision in Osorio v. Canada (Minister of Citizenship and Immigration),
2005 FC 1459 to argue that since “generally” is commonly used to mean
“prevalent” or “widespread”, simply because a subcategory can be crafted out of
the citizenry at large does not remove that group from the generalized risk
category. As I understand the argument, and with reference to the Minster’s
Delegate’s remark that the violence in Iraq is largely about the Sunni-Shia
power struggle which pervades the country, the Minister’s Delegate reasonably
determined that the risk faced by the Applicant as a Christian is faced
generally by other individuals (Respondent’s Further Memorandum of Argument,
para. 35). On my reading of the decision in Osorio, the outcome of a
finding as to whether an applicant will face a generalized risk depends on the
nature of the group to which he or she belongs, and the nature of the risk.
That is, every case must be determined on its own merits.
[17]
In Osorio,
the applicant asserted a fear on behalf of himself and his young Canadian-born
son that, should they return to Colombia, they would suffer risk from FARC. On the
nature of the claim, Justice Snider made the following findings at paragraphs
22, and 24 to 27:
I first
note that the Board, in the paragraph concluding this section of their Reasons,
states its finding that the risk of the son-in-law “is no greater than or
different to the general risk faced by all persons in [Colombia].” From this, it
appears that the Board understood the correct test. The question is whether a
risk to a sub-group – in this case, parents – can be a risk contemplated by s.
97(1)(b)(ii). The Board evidently believed that it is. The question before me
is whether this extension of the concept of “faced generally” was correct or
reasonable. In my view, it was.
[…]
It
seems to me that common sense must determine the meaning of s. 97(1)(b)(ii). To
put the matter simply: if the Applicants are correct that parents in Colombia
are a group facing a risk not faced generally by other individuals in Colombia,
then it follows that every Colombian national who is a parent and who comes to
Canada is automatically a person in need or protection. This cannot be so.
The
risk described by the Applicants and the Board in this case is a risk faced by
millions of Colombians; indeed, all Colombians who have or will have children
are members of this population. It is difficult to define a broader or more
general group within a nation than the group consisting of “parents”.
Further,
I can see nothing in s. 97(1)(b)(ii) that requires the Board to interpret
“generally” as applying to all citizens. The word “generally” is commonly used
to mean “prevalent” or “widespread”. Parliament deliberately chose to
include the word “generally” in s. 97(1)(b)(ii), thereby leaving to the Board
the issue of deciding whether a particular group meets the definition.
Provided that its conclusion is reasonable, as it is here, I see no need to
intervene.
In
conclusion, the Board reasonably concluded that the risk to which the
son-in-law and his wife would be subject is a general risk and does not make
them persons in need of protection under s. 97.
[Emphasis
added]
[18]
In
the present case, the obligation rested with the Minister’s Delegate to
determine on the evidence whether Assyrian Christians are a particular group
that meets the definition in s. 97(1)(b)(ii) of the IRPA. In this
regard, it was necessary to consider how the generalized Muslim-to-Muslim
violence relates to, or contrasts with, Muslim-to-Assyrian Christian violence.
This obligation was not met by the Minister’s Delegate.
[19]
I have one final comment with respect to Counsel for the
Minister’s argument.
[20]
As
mentioned, the Applicant
was
convicted
of aggravated sexual assault in the state of Illinois in March 1999. The offence was committed
when he was 23 years of age; he was sentenced to 7 years incarceration, and was
released in 2002. The sentence reflects the acute seriousness of the crime; the
Applicant sexually assaulted a 16-year old young woman while she was
unconscious. While going through the immigration process with respect to his
claim for protection as recounted above, the Applicant was released from
detention after posting a $5,000 cash bond and a $10,000 performance bond.
There is no suggestion in the evidence that there has been any further
criminality. Indeed, after a thorough examination of the evidence, the
Minister’s Delegate was “not satisfied that at this point in time, there are
reasonable grounds to believe [the Applicant] is a present and future danger to
the public (Decision, p. 22).
[21]
In
the course of the rendering the decision under review, the Minister’s Delegate
fairly, and with care, approached the subject of the sexual assault and the
issue of whether the Applicant is a present danger. While I have passed
judicial review comment on the risk decision, I find the decision as a whole to
be straight-forward and free of extraneous considerations. On this latter
point, I have serious concerns about the written argument delivered by Counsel
for the Minister. The Respondent’s Further Memorandum of Argument opens with
this comment:
When one benefits from the generous
hospitality of a host nation, one does not violate the host nation’s trust and
generosity by savagely violating one of its children. The Applicant claims to
be a Christian facing possible persecution in Iraq.
However, as the Applicant is considered a serious criminal under IRPA for
having been convicted in the U.S. of drugging, raping and almost killing an
underage girl, he is only entitled to a restricted consideration of personalized
[emphasis in the original] risk under section 97 of IRPA and not the refugee
grounds under section 97 [sic]. Humanitarian issues of hardship are not considered
under the PRRA. While life may prove difficult in Iraq for the Applicant, the difficulty he may
face is of his own making.
The second paragraph of the argument is as
follows:
While the Applicant may have not raped
anyone in the last 12 years, such that he may be considered to pose an
immediate danger to Canadians, Canadians should not have to suffer the
Applicant’s presence as a neighbour. This is what Parliament intended in
providing only a restricted PRRA for serious criminals.
And at paragraph 4 this view is expressed:
The Minister’s Delegate identified that
600,000 to 800,000 Iraqi
Christians suffered 17 reported attacks
in the first six months of 2008. The Respondent submits that these attacks, as
regrettable as they may be, do not demonstrate that the Applicant will personally
be at risk of an attack on a balance of probabilities [emphasis in the
original]. The Applicant’s identification of documents that detail sporadic
incidents of violence against Christians in Iraq
that were not mentioned in the Minister’s Delegate’s reasons is an insufficient
basis to warrant revisiting the risk assessment. The Applicant’s desire to have
this Honourable Court to [sic] reweigh the documentary evidence before the
Minister’s Delegate is an insufficient bases [sic] to warrant intervention. The
Applicant has benefited from Canada’s generosity for too long as a serious
criminal. It is time for the Applicant to leave.
[Emphasis
added]
I find that this language is completely
inappropriate because it is inflammatory and can be taken to be an attempt to
persuade an outcome to the present Application through the introduction of a
completely extraneous consideration to the issues to be determined. The
Applicant’s criminal conduct was dealt with according to law, and his
immigration status is in the process of being dealt with according to law. The
argument reads like a sentencing submission for greater penalty for the offence
which was committed, and for which the penalty has already been paid. In my
opinion, there is no room for this kind of irrelevant rhetoric in a solemn judicial
inquiry.
ORDER
Accordingly, the decision
under review is set aside.
There is no question to
certify.
“Douglas
R. Campbell”
APPENDIX
Section 97 of
the Immigration
and Refugee Protection Act, 2001, c. 27 reads as follows:
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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.
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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.
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