Docket: IMM-2081-13
Citation:
2014 FC 541
Ottawa, Ontario, June 4, 2014
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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ENKHTUYA OSOR
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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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JUDGMENT AND REASONS
[1]
This is a judicial review of the decision by the
Refugee Protection Division [RPD] which concluded that the Applicant, a citizen
of Mongolia, was neither a refugee nor a person in need of protection. The RPD
accepted her allegation that she suffered spousal abuse but rejected her
refugee/protection claim on the basis of state protection.
[2]
There are several grounds on which this decision
must be quashed and the matter remitted back. The following is a brief summary
of those grounds.
[3]
The RPD erred in its s 96 consideration by
holding that the Applicant had to show that she “would face persecution” as
opposed to the proper legal test of “facing a serious possibility of
persecution”.
While
the error of law was not determinative, it is a serious matter and colours the
state protection analysis because it begins the whole matter of persecution and
risk from the wrong perspective. On its own, this error might not have been
sufficient to overturn the decision but in combination with other concerns, it
undermines the validity of the RPD decision.
[4]
The decision contained an error of fact which
was relevant to the determinative issue of state protection. The RPD found that
the Applicant’s husband was convicted of a criminal offence when in fact he had
not been. While her husband had been taken away by police on three occasions,
there is no evidence to support the RPD’s conclusion that he received criminal
convictions as opposed to administrative detentions. The RPD’s conclusion is
contradicted by a letter from the police indicating that the Applicant’s
husband “was sentenced according to Administrative Law”,
the Applicant’s testimony and documentary evidence that a recently enacted
domestic violence law has been rarely if ever used.
[5]
The RPD referred to the test for state
protection as being whether the Mongolian government was taking steps to
address domestic violence. That articulation of the legal test is an error in
law.
[6]
The RPD’s actual analysis of state protection
focused on the processes in place to deal with domestic violence. The RPD did
not consider, as it was required to do, the efficacy or operational reality of
those processes. In particular, the RPD should have confronted the fact that
the Applicant had accessed all the resources which the RPD found were available
to protect her and was still experiencing serious violence.
[7]
Therefore, this decision cannot be sustained.
The decision will be quashed and the matter remitted back for a new
determination by a different panel.
[8]
There is no question for certification.
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