Date: 20080617
Docket: IMM-2482-07
Citation: 2008
FC 747
Toronto, Ontario, June 17, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
DHRUV NAVICHANDRA PATEL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application, pursuant to s. 72 of the Immigration and Refugee
Protection Act S.C. 2001, c. 27 (Act) of a decision, dated March 5, 2007,
wherein the Board determines that the respondent is a Convention refugee and a
Person in need of protection.
II. Overview
[2]
“I am
afraid I will have no where to live. Afraid of having no caregiver in India.”
(Applicant’s Background Information, Schedule 1, Tribunal Record p. 114).
[3]
Usually, more than half of any refugee populations are children.
Refugee children are children
first and foremost, and as children, they need special attention. As refugees,
they are particularly at risk.
Children are vulnerable. They are susceptible to disease, malnutrition and physical
injury.
Children are dependent. They need the support of adults, not only for physical survival,
particularly in the early years of childhood, but also for their psychological
and social well-being.
Children are developing. They grow in developmental sequences, like a tower of bricks,
each layer depending on the one below it. Serious delays interrupting these
sequences can severely disrupt development.
Refugee children face far greater dangers to their safety and well
being than the average child. The sudden and violent onset of emergencies, the
disruption of families and community structures as well as the acute shortage
of resources with which most refugees are confronted, deeply affect the
physical and psychological well being of refugee children. It is a sad fact
that infants and young children are often the earliest and most frequent
victims of violence, disease and malnutrition which accompany population displacement
and refugee outflows. In the aftermath of emergencies and in the search for
solutions, the separation of families and familiar structures continue to
affect adversely refugee children of all ages. Thus, helping refugee
children to meet their physical and social needs often means providing support
…[Emphasis added]
(UN High Commissioner for Refugees, Refugee Children: Guidelines
on Protection and Care, 1994)
III. The Facts
[4]
Citizen
of India, the respondent, is a
13 year old boy named Dhruv Navichandra Patel. His father left Grandhinigar, Gujarat, India for the United States in 1994. His mother
joined in 1996 leaving the respondent, then a baby, with his grandparents in India.
[5]
The
respondent’s parents continue to live without status in the United States. After the death of the
respondent’s grandfather in 1998, the respondent’s uncle, who has legal status
in the United
States, makes
provisions to sponsor the respondent’s grandmother.
[6]
The
respondent’s grandmother arranges to have a man, unknown to the minor respondent,
take him from Gujarat to Mumbai where he boards an airplane with two men he does
not know and flies to Canada. The respondent is instructed to say that
his name is Mohamed Doma, and is given a birth date and age.
[7]
The
respondent arrives in Canada at Pearson International Airport on November 24, 2004
using a fraudulent Canadian passport in the name of one Mohamed Doba. He is in
the company of two smugglers; one who was a known criminal to the Canadian
airport authorities. No letter of permission to travel with the child is presented
to the airport authorities. And since his arrival in Canada the respondent is placed
and remains in the care of the Children’s Aid Society of Peel (CASP) where his
true identity is later revealed.
[8]
His
designated representative for the purposes of his refugee hearing is his child protection
worker, Mohamed Shaw, a primary witness at the hearing of the claim for
protection.
[9]
Both
the CASP and the Refugee Division consider the respondent to be an abandoned
child with no family in India.
IV. Issue
[10]
Does
the Board err in law when it determines the minor respondent to be a Convention
refugee and a person in need of protection?
V. Preliminary issue: Unaccompanied minors
[11]
The United
Nations Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the Status of
Refugees (GA Res. 2198 (XXI), UNHCR (1951); UNHCR Handbook) specifically addresses the question
of unaccompanied minors and what a decision maker must consider when
determining if a minor child is a Convention Refugee:
214. The question of whether
an unaccompanied minor may qualify for refugee status must be determined in the
first instance according to the degree of his mental development and maturity.
In the case of children, it will generally be necessary to enroll the services
of experts conversant with child mentality. A child--and for that matter, an
adolescent--not being legally independent should, if appropriate, have a
guardian appointed whose task it would be to promote a decision that will be in
the minor's best interests. In the absence of parents or of a legally appointed
guardian, it is for the authorities to ensure that the interests of an
applicant for refugee status who is a minor are fully safeguarded.
215. Where a minor is no
longer a child but an adolescent, it will be easier to determine refugee status
as in the case of an adult, although this again will depend upon the actual
degree of the adolescent's maturity. It can be assumed that--in the absence of
indications to the contrary--a person of 16 or over may be regarded as
sufficiently mature to have a well-founded fear of persecution. Minors under
16 years of age may normally be assumed not to be sufficiently mature. They may
have fear and a will of their own, but these may not have the same significance
as in the case of an adult.
216. It should, however, be
stressed that these are only general guidelines and that a minor's mental
maturity must normally be determined in the light of his personal, family and
cultural background.
217. Where the minor has
not reached a sufficient degree of maturity to make it possible to establish
well-founded fear in the same way as for an adult, it may be necessary to have
greater regard to certain objective factors. Thus, if an unaccompanied
minor finds himself in the company of a group of refugees, this may--depending
on the circumstances--indicate that the minor is also a refugee.
218. The circumstances of the
parents and other family members, including their situation in the minor's
country of origin, will have to be taken into account. If there is reason to
believe that the parents wish their child to be outside the country of origin
on grounds of well-founded fear of persecution, the child himself may be
presumed to have such fear.
219. If the will of the parents
cannot be ascertained or if such will is in doubt or in conflict with the will
of the child, then the examiner, in cooperation with the experts assisting him,
will have to come to a decision as to the well-fondness of the minor's fear on
the basis of all the known circumstances, which may call for a liberal
application of the benefit of the doubt. [Emphasis added]
[12]
This is in
brief the setting in which this Court is called to review the Board’s decision.
VI. Standard of Review
[13]
Only two standards of review are now recognized: reasonableness and correctness (Dunsmuir v. New
Brunswick,
[2008] S.C.J. No. 9, at paragraph. 34).
[14]
The question of
whether the officer applied the correct test is reviewable on the correctness
standard, while the deferential standard of
reasonableness continues to be appropriate standard of review for a
humanitarian and compassionate decision as a whole, given the discretionary
nature of a humanitarian and compassionate decision and its factual intensity, (Zambrano v. Canada
(Minister of Citizenship and Immigration),
[2008] F.C.J. No. 601 (QL)).
[15]
The Court
must now apply the appropriate standard of review to
each asserted error.
VII. Standard of Proof
[16]
The applicant
submits that the Board confuses in its decision the standard of proof for
sections 96 and 97 of the Act, and errs as a result in its application of the requisite
standard in this case, when it concludes that the evidence has established:
…
that there is a ‘reasonable chance’ or ‘serious possibility’ that this child
would be will be persecuted by reason of his membership in a particular social
group, an abandoned child, should he return to India with no caregiver and that
using the same standard of proof, that such consequences constitute cruel and
unusual treatment
[17]
The
applicant submits that the Board uses the wrong legal test when it considers s.
97 of the Act, and that the Board should have applied the standard set out in Li
v. Canada (Minister of
Citizenship and Immigration), [2005]
F.C.J. No. 1 (QL) [Li].
[18]
The respondent
acknowledges that the standard of review is correctness when considering if a
tribunal has applied the proper legal test to section 97 of the Act, but submits
that the issue as to the whether the Board applied the proper test when they
determined the minor child to be a person in need of protection is moot.
Furthermore, they note that the standard set out in Li only applies to
section 97 of the Act, while here the minor child was found to be a Convention
refugee pursuant to s. 96 of the Act.
[19]
When
referring to persecution, the Board refers in fact specifically to s. 96 of the
Act, for which the correct legal test is in fact “reasonable chance” or
“serious possibility”. Therefore, this Court finds that the Board applies in
its decision the correct test with respect to s. 96.
[20]
In
order to qualify as a “protected person” the respondent needs to satisfy the Board
only that he meets the requirements of either s. 96 or s. 97, not both. If he
meets the legal threshold required for s. 96, then any error with respect to s.
97 is moot.
VIII. Analysis
A. No Evidence of Subjective Fear
[21]
The
applicant submits that there cannot be finding that a person is a refugee under
section 96 unless that person demonstrates that he/she has subjective fear of
persecution and that his/her fear is objectively well-grounded. In finding that
the minor child “meets the standard under both sections of the Act […] on the
basis of being a member of a particular social group, an abandoned child [and]
a child at risk of cruel and unusual treatment of punishment”, according to the
applicant the Board erroneously did not “expect that the [minor child] would
have a subjective fear of returning” because, until he left, he had lived with
his grandmother without any problems.
[22]
Furthermore,
the applicant’s submits that the Board has no basis in law to find that the
minor child is a Convention refugee, as described in section 96 of the Act, if
there is no evidence of subjective fear of persecution until he left India, and
if the Board is unprepared to ascertain whether he has any such fears if
returned in the future.
[23]
The
applicant also insists that it is not open to the Board to simply assume,
without any evidence, that the minor child fears going back to India; and that
it is one thing for the Board to be more flexible when assessing the subjective
fear element of a child’s claim, as recommended by the Guideline on Children
Refugee Claimants (the Guideline) [“Child Refugee Claimants, Procedural and
Evidentiary Issues”, 30 September 1996, Guidelines on Children Refugee
Claimants],
and
the jurisprudence, and another to assume, without evidence, the existence of
subjective fear. Consequently, the applicant submits that the Board errs in
making that unfounded assumption.
[24]
The respondent
submits that as a matter of fact, the
minor child is thirteen years old, and it is not reasonable to expect a child
of that age to:
a.
comprehend the
circumstances that he would find upon his return to India;
b.
understand the
consequences of returning to India;
c.
be able to articulate
such factors;
d.
be able to articulate
his fear.
[25]
These
concerns are addressed in the Guidelines, as follows:
In general, children are not able to present evidence with the
same degree of precision as adults with respect to context, timing, importance
and details. They may be unable, for example, to provide evidence about the
circumstances surrounding their past experiences or their fear of future
persecution. In addition, children may manifest their fears differently from
adults.
[And]
2.
A child claimant may not be able to express a subjective
fear of persecution in the same manner as an adult claimant. Therefore, it may
be necessary to put more weight on the objective rather than the subjective
elements of the claim the Federal Court of Canada
(Appeal Division), in Yusuf
v. Canada (Minister of Employment and Immigration) (C.A.), [1992] 1 F.C. 629 (QL) [Yusuf],
at paragraph 5, has said the following on this issue:
… I am
loath to believe that a refugee status claim could be dismissed solely on the
ground that as the claimant is a young child … he or she was incapable of
experiencing fear the reasons for which clearly exist in objective terms.
[26]
Although
there is a great deal of case law addressing the requirement that a claimant
must show that he has both a subjective and an objective fear of persecution,
this jurisprudence is overwhelmingly directed to situations where a claimant
has not been able to establish that the fear is objectively well-founded. In
such a circumstance the Court, and the Board, have stated that it is not enough
for the applicant to be afraid, there must be an objective reason for him or
her to be afraid. In such cases, the subjective fear is at best a secondary
consideration.
[27]
It
is a much rarer case where a claimant has good reason to be afraid, but is not.
In such cases the claimant would have to be incompetent, exceptionally
committed to a cause, or foolhardy. It is unlikely that many people who fit the
latter two categories would make a refugee claim in the first place.
[28]
The
upshot of the applicant’s submission is that all persons who are incompetent
will, by reason of that incompetence, be unable to qualify as Convention
refugees. This will include most children and anyone who is incompetent by
reason of mental disability (including those whose mental disability was due to
trauma caused by persecution).
[29]
Where
a claimant is deemed incompetent whether by age or disability, the claimant may
not be able to articulate their fear in a rational manner. Moreover, most children
cannot be required to swear an oath to tell the truth, because it is presumed
that a child is not able to understand the nature of an oath. Although children
can give evidence in legal
proceedings, their evidence is to be approached with care. Under such
circumstances, even if a child did testify that he/she is afraid, that
testimony would be subject to care by the decision maker and may be
significantly discounted if the child does not have a full appreciation of the circumstances
(Yusuf, above).
[30]
In the
context of persecution it may be contrary to the child’s interests and health
to inform the child of the risks the child faces upon return to his home
country. It may also be injurious to the child to require the child to
anticipate the harms that could be visited upon the child should he/she return
to the home country.
[31]
The
Board addresses this issue squarely:
The
child was not asked whether he had a fear of returning to India to live in an orphanage, which is what he would be required
to do should he be returned to India. Neither should a child be expected to
contemplate such changed circumstances.
An unaccompanied child claimant is by virtue of that status a child who may be
at risk. In assessing the evidentiary issues in the claim, I rely on the objective
component of the claim and the documentary evidence, rather than any subjective
elements of fear.
[32]
The
Immigration and Refugee Tribunal has been accepting child refugees for many
years without requiring them to specifically articulate a subjective fear. In
most such cases, a child’s subjective fear is articulated, on their behalf, by
parents who are present and acts as the child’s designated representative, or
the fear is inferred from the evidence. This is what happened in the case at
bar, except that the designated representative was not a parent but rather a
professional child protection worker.
[33]
Where
a claimant is not competent, whether by age or disability, and the evidence
establishes an objective basis for his fear, it is sufficient that the designated
representative establish a subjective fear in his role as designated
representative (in loco parentis), or that the subjective fear be
inferred from the evidence.
[34]
The
argument set forward by the applicant would result in a circumstance where children
must be routinely rejected as Convention refugees even where the risk to the
child has been clearly established. It would create an absurd result.
[35]
Moreover,
children would be routinely rejected even if their older family members had
been accepted on the same facts.
[36]
As
noted above, the case law requiring both subjective and objective fear
overwhelmingly address circumstances opposite to the case at bar. In those cases the claimant does
have a subjective fear, but the case law makes it clear that that is not
enough. The claimant must establish an objective basis. Those cases do not
address the scenario where the claimant’s fear has an objective basis but does
not have a subjective fear. Therefore, the findings of the Court in those cases
with respect to subjective fear are obiter dicta.
[37]
The
issue was addressed by the Federal Court of Appeal in Yusuf above at
paragraph 5 as follows:
....
It is true, of course, that the definition of a Convention refugee has always
been interpreted as including a subjective and an objective aspect. The value
of this dichotomy lies in the fact that a person may often subjectively fear
persecution while that fear is not supported by fact, that is, it is
objectively groundless. However, the reverse is much more doubtful. I find it
hard to see in what circumstances it could be said that a person who, we must
not forget, is by definition claiming refugee status could be right in fearing
persecution and still be rejected because it is said that fear does not
actually exist in his conscience. The definition of a refugee is certainly not
designed to exclude brave or simply stupid persons in favor of those who are
more timid or more intelligent. Moreover, I am loath to believe that a refugee
status claim could be dismissed solely on the ground that as the claimant is a
young child or a person suffering from a mental disability, he or she was
incapable of experiencing fear the reasons for which clearly exist in objective
terms.
[38]
The
Court therefore finds that the Board is not unreasonable or incorrect when it
fails to explicitly address the subjective fear of the minor child. It was open
to the Board to infer the subjective fear of the minor child from the evidence
presented, including the testimony of the child’s designated representative who
was speaking on his behalf.
B. Persecution
[39]
The
applicant submits that the Board refers to irrelevant considerations when
assessing “persecution”, and in support of this issue focuses upon the Board’s
references to education and health care.
[40]
But
these factors cannot be considered in the abstract as the applicant does, but rather
in the context of the specific case at bar. And the Board here does not rely solely upon
education and health care, but upon the evidence of a CASP’s worker who also acted as the minor child’s designated
representative. The Board found him to be “an excellent witness” who “has been
very forthright [and] clearly understands the claim”. It described him as a
“professional witness”.
[41]
On
the basis of the evidence before it, the Board made the following findings
about the situation the minor child would face upon his return to India:
…the
Children’s Aid Society believes that the child would be at risk should be returned
to India in that he would have not care giver, no
emotional support and no access to the necessities of life.
…there
is no child protection and, as such, a child would not be sent into “the
unknown”.
…
[documentary evidence] report abuse of children in both public and private
educational institutions [and]…point to a general malaise in India toward its treatment of the most vulnerable in its society,
its children.
[42]
Although
the applicant focuses on the Board’s use of the words “decent education and adequate
health care”, such comments cannot be read out of context. The Board’s concern is
that in all of the circumstances of this case, there is a serious possibility
that the child would be deprived of “the necessities of life”.
[43]
As stated above, the Board is required to
consider the cumulative effect of the various harms faced by a claimant, and
also to consider the harms in the specific context of the claimant, including his
age, and a failure to do so could constitute a reviewable error.
[44]
The applicant’s
submissions are formalistic. The word “persecution” is not defined in the
definition of a “Convention refugee’. Although many decisions of the Court have
clarified the meaning of “persecution”, these decisions do not encourage a
formalistic approach for this term.
[45]
The Court has constantly
recognized that a tribunal is required to assess the cumulative impact of the
hardships faced by the claimant. Therefore, even if none of the individual
harms feared by the applicant are persecutory when viewed individually, the
combined or cumulative effect of these harms may be persecutory. In this way,
the cumulative effect of “merely” discriminatory acts can amount to persecution. The
tribunal is required to assess the circumstances of the claimant, including the
claimant’s age, when assessing whether or not the harm feared amounts to
persecution.
[46]
The Court has also
stated that the label applied to the harm is not decisive. A tribunal is
required to have substantive regard to the seriousness of the specific harm
faced, and sometime the cumulative nature of the persecution suffered by a
claimant. (Velluppillai
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 301 (QL);
Sarmis v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 109 (QL); Soto v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1033 (QL)).
[47]
When
assessing whether or not the Board’s finding on persecution is “unreasonable”,
the applicant asks the Court to consider the difficulty of making a distinction
between discriminatory acts that amount to persecution and those that do not.
[48]
Although
the Federal Court of Appeal has observed in Sagharichi v. Canada (Minister of Employment
and Immigration) (F.C.A.), [1993] F.C.J. No. 796 (QL) that “the dividing line between
persecution and discrimination or harassment is difficult to establish”, this
Court has observed, in Nejad v.Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 1168 (QL), paragraph 3-4 that:
The case of Yusuf, which is a decision of the Federal Court
of Appeal, is most important here for the very quotation of Mr. Justice
Hugessen there, Yusuf v. Minister of Employment and Immigration, [1992] 1 F.C. 629, in
which Mr. Justice Hugessen, at p. 632, is reported as saying:
[…] The CRDD did recognize
and the Court agrees that there may be certain circumstances in which the
particular characteristics or circumstances of a claimant again, other than
those covered by the Convention grounds, might affect the assessment of whether
certain acts or treatments are persecutory […]
[…] One
must look at the act and the effect. And in this case, in particular, because
of the old age of the applicants, it should have been more obvious to the CRDD
panel that the effect upon them was that of persecution.
[49]
The
Court’s decisions in these cases are consistent with the direction provided by
the UNHCR Handbook, above, at paragraphs 5l -53 which, under the heading
“persecution” sets out the following:
(b)
Persecution
51.
There is no universally accepted definition of “persecution”, and various
attempts to formulate such a definition have met with little success....
52.
Whether other prejudicial actions or threats would amount to persecution will
depend on the circumstances of each case, including the subjective element to
which reference has been made in the preceding paragraph and the subjective
character of fear of persecution requires an evaluation of the opinions and
feelings of the person concerned. It is also in the light of such opinions and
feelings that any actual or anticipated measures against him must necessarily
be viewed. Due to variations in the psychological make-up of individuals and in
the circumstances of each case, interpretations of what amounts to persecution
are bound to vary.
53.
In addition, an applicant may have been subjected to various measures not in
themselves amounting to persecution (e.g. discrimination in different forms),
in some cases combined with other adverse factors (e.g. general atmosphere of
insecurity in the country of origin). In such situations, the various elements
involved may, if taken together, produce an effect on the mind of the applicant
that can reasonably justice a claim to well-founded fear of persecution on “cumulative
grounds”. Needless to say, it is not possible to lay down a general rule as to
what cumulative reasons can give rise to a valid claim to refugee status. This
will necessarily depend on all the circumstances, including the particular
geographical, historical and ethnological context.
[50]
The applicant submits
that the Board is required to make a determination based on the evidence, that
the CASP’s unsubstantiated belief as to what will
happen in India is not determinative of the issues raised by the claim, and
that the important issue is whether the evidence shows that the minor child
would either be persecuted on a Convention ground, whether he faces a risk of
life or torture, or whether he faces the prospect of cruel and unusual
treatment or punishment in India. He further submits that there is no evidence
to support both finding, and that the Board simply accepted the unsubstantiated
and uncorroborated testimony of the designated representative, who in turn
claims to have been informed by a “colleague from India”.
[51]
First,
this is not completely true since the minor child did express, although briefly,
his fear of being returned to his home country. Second, the applicant is
seeking to have specific harms dealt with in the abstract, although admitting in
his Memorandum that “the (Board) was not unreasonable in considering the
cumulative effect of the various hardships and the particular circumstances of
the respondent, most notably his age and the fact that he has no apparent means
of support in India”.
[52]
In
addition and contrary to the applicant’s contention, the Board does not
abdicate its duties to the designated representative. Rather the designated
representative provided testimony that was subjected to examination by the Board’s
member.
[53]
In
addition, the 2007 U.S. Department of State Country Reports on Human Rights
Practices notes the following with respect to children in India:
In
August 2006 Parliament passed the Juvenile Justice (Care and Protection of
Children) Amendment Bill, which is the primary law for not only the care and
protection of children but also for the adjudication and disposition of matters
relating to children in conflict with law. In 2005, the juvenile justice court
ruled that any failure by school management or teachers to protect students
from sexual abuse or provide them with a safe school environment is punishable
with a prison term of up to six months. Despite these legal protections, there
were societal patterns of neglect and physical, sexual, and emotional abuse of
children, and child labor was a problem.
In
April, the Ministry of Women and Child Development released its first study of
child abuse; according to the comprehensive two-year survey, two out of three
children were physically abused with a higher percentage reported among
children aged five to 12. The states of Andhra Pradesh, Assam, Bihar, and Delhi consistently reported
the highest rates of abuse in all forms. Sixty five percent of school-going
children reported facing corporal punishment. Fifty-three percent of children
reported experiencing one or more forms of sexual abuse; and 22 percent
experienced severe sexual abuse.
Trafficking
and commercial sexual exploitation of children was a serious problem. According
to UNICEF, in 2004 the country supplied half of the one million children
worldwide who entered the sex trade.
[54]
The
evidence before the Board also addresses the life of over 100,000 children in India living on the streets:
Street
children are not a new phenomenon. There have always been children who have
been abandoned or who have run away from home and have turned to the street
as a means of survival.
Children
end up on the streets for a variety of reasons, often interlinked. Some
children have been abandoned, and some have found themselves on the streets
because of circumstances. Reasons include the need to work, neglect and/or
violence at home, and loss of family contact because of conflict, natural
disasters or HIV/AIDS. [Emphasis added]
[55]
During
the hearing before the Board, the minor child’s designated representative
confirmed that “there is no caregiver who can provide the care for Dhruv” and
that “there is no child protection in India similar to [Canada’s]”. And when
questioned as to whether the minor child’s parents could and would be able to
have the child sent, with a CASP’s representative, to live in the United States he noted that unless
the child had a legal status they would not be able to cross the border to the
States.
[56]
The
Board gave weight to the minor child’s designated representative’s evidence, as
it was entitled to do. It explained why it accepted this evidence and why it
attributed weight to it. Accepting and giving weight to that type of evidence, far
from being an abdication as the applicant argues, constitutes on the contrary
an assessment of the proof, and is at the very heart of the role of the
decision maker.
[57]
For
the foregoing, this Court finds that the Board’s decision is far from being unreasonable.
C. Humanitarian
and Compassionate Considerations
[58]
The applicant submits
that humanitarian and compassionate considerations have no place in the
determination of whether or not a claimant is a Convention refugee or a person
in need of protection. And that the Board is required to make a determination
on the basis of the factors set out in sections 96 and 97 of the Act. Any
humanitarian and compassionate factors raised by a particular claimant, such as
the best interest of the child, can only be fully considered once a
determination is made on the issue whether a claimant merits protection in Canada.
[59]
However,
the words “humanitarian and compassionate” are not found in the Board’s reasons,
although references are made on the other hand to “the best interests of the
child”. But as the applicant has acknowledged, the “best interests of the child”
are relevant to the procedures followed in such a case.
[60]
The Court finds that it is
reasonable for the Board in the circumstances of the case at bar to consider
the best interests of the child when assessing whether or not he would be
required to testify. Under the circumstances the Board concludes that the best
reasonably available evidence was that of the minor child’s designated
representative, and that assessment was open to the Board.
D. Chairperson’s Guidelines
[61]
The applicant submits
that the Board errs in its application of the Chairperson’s Guidelines on
Child Refugee Claimants. In that, although it purports to apply these
Guidelines, the Board would misunderstand the fact that the Guidelines are
designed to deal with procedural and evidentiary issues; and they are not
intended to fill in gaps in a claim or rehabilitate an otherwise
unsubstantiated claim simply because the claimant is a child.
[62]
On this issue the applicant
is simply repeating the submissions made previously, particularly with respect
to “subjective fear” and “humanitarian and compassionate” factors, with the attribution of
a motive to the alleged error concerning “subjective fear’, namely the Board’s
concern about the best interest of the child. This argument does not stand, as
a result of this Court finding that the Board’s conclusion with respect to
subjective fear is not reviewable.
[63]
In addition, the Guidelines on
Children Refugee Claimants clearly states that “refugee children have
different requirements from adult refugees when they are seeking refugee
status”. For instance, the Guidelines provide that in determining the procedure
to follow when considering the refugee claim of a child, the Board should give
primary consideration to the “best interests of the child”. It also states that:
“the “best interests of the child” should be given primary consideration at all
stages of the processing of these claims”.
[64]
This
Court finds that the Board’s application of the Guidelines when assessing the
minor child’s claim is reasonable.
[65]
The
parties have submitted no question of general interest to certify. Therefore,
no question will be certified.
JUDGMENT
FOR THE
FOREGOING REASONS, THIS COURT dismisses the application.
“Maurice
E. Lagacé”
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