Date: 20100514
Docket: IMM-5447-09
Citation:
2010 FC 513
Ottawa,
Ontario, May 14, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
BAYARD
NDAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by
the Refugee Protection Division of the Immigration and Refugee Board (the panel)
dated August 28, 2009, determining that the applicant is not a Convention
refugee within the meaning of section 96 of the Act, or a person in need of protection
under section 97 of the Act.
[2]
The
applicant is a citizen of Cameroon who alleges that he will be
persecuted because of his political activities should he return to his country.
[3]
The panel
rejected his claim on the ground that he was not credible.
[4]
In matters
of assessment of the evidence by the panel, the applicable standard of review
is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190; Uppal v. Canada (Minister of Citizenship and Immigration), [2009] F.C.J. No. 557 (F.C.)
(QL)). The panel’s findings with regard to a refugee claimant’s credibility
call for deference from the Court (Dunsmuir, at paragraphs 55, 57, 62
and 64; Lin v. Canada (Minister of Citizenship and Immigration), 2008 FC 698, [2008] F.C.J. No.
888 (QL) at paragraph 11).
[5]
In
judicial review, the Court is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned 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).
[6]
It is
settled law that the panel is in a better position to assess the credibility of
an applicant and that it is presumed to have considered all of the evidence
before making its decision. It is also up to the panel to judge the
reasonableness of the explanations provided by the applicant on the essential
elements of his or her claim.
[7]
In the
case at bar, the Court finds that the panel undertook a microscopic examination
of the evidence when it rejected the applicant’s claim for refugee protection.
[8]
Only a few
examples are needed to illustrate the fact that the matter should be
re-examined by another decision-maker.
[9]
With
regard to the applicant’s detention from January 5 to 11, 2000, the panel drew
a negative inference from the fact that the applicant first stated that he did
not remember the name of the prison where he had been incarcerated. When
questioned a second time, he stated that it was Yaoundé. He added that it was
the prison of the police station in the borough of Mboa. When confronted with
the prison release form issued by the central prison in Yaoundé, he stated that
he had looked into this and that prison release forms were issued by the
central prison, which is why he thought it had been Yaoundé. The panel did not
accept this answer and criticized the applicant for his hesitation about the
name of the prison where he was allegedly mistreated for six days.
[10]
The Court
does not believe that the applicant’s explanation was unreasonable and fails to
understand why the panel drew a negative inference in this regard.
[11]
Furthermore,
the panel claimed it did not believe the applicant when he apparently signed
the prison release form without having read it. The applicant testified that he
was only 17 years old at the time and did not understand the concept of
conditions. He added that he was more worried about his life and that he just
wanted to get out of prison (certified copy of the tribunal record, pages 276
and 278). This is a completely reasonable explanation, given the fact that he
had been mistreated for six days.
[12]
Later, the
panel assigned no probative value to the medical certificate dated January 14,
2000. It did not believe that the applicant had received treatment at the
hospital as he claimed because he did not know the name of the hospital where
he was treated and did not provide enough details about the kinds of treatments
he received.
[13]
However,
the medical certificate shows that the applicant was examined and that there
were follow-up examinations between January 11 and 14, 2000. The Court finds
that the panel focused on details that were peripheral and not essential to the
refugee protection claim.
[14]
No
question was proposed for certification and none arises from this matter.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be allowed. The matter is referred back for
redetermination by a differently constituted panel. No question is certified.
‘‘Michel
Beaudry’’
Certified
true translation
Sebastian
Desbarats, Translator
ANNEX
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27.
|
|
|
|
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.
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.
|
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.
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.
|
Email this Content