Date: 20070208
Docket: IMM-3900-06
Citation: 2007 FC 133
Ottawa,
Ontario, the 8th day
of February 2007
Present:
The Honourable Mr.
Justice
Shore
BETWEEN:
Augosto Pedro PRIETO VELASCO
Carla Mercedes GUAZZOTTI DEL RISCO
Giancarlo GUERRA GUAZZOTTI
Mauricio Alberto GUERRA GUAZZOTTI
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
In this
specific case,
following the applicants’ account of the facts, which was accepted as credible
by the Immigration and Refugee Protection Board (Board) without any doubt being
expressed as to credibility:
[27] In order to determine whether a refugee protection claimant
has discharged his burden of proof, the Board must undertake a proper
analysis of the situation in the country and the particular reasons why the
protection claimant submits that he is “unable or, because of that risk,
unwilling to avail [himself] of the protection” of his country of nationality
or habitual residence (paragraphs 96(a) and (b) and
subparagraph 97(1)(b)(i) of the Act). The Board must consider
not only whether the state is actually capable of providing protection but also
whether it is willing to act. In this regard, the legislation and
procedures which the applicant may use to obtain state protection may reflect
the will of the state. However, they do not suffice in themselves to
establish the reality of protection unless they are given effect in practice:
see Molnar v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v. Canada (Minister of Citizenship and
Immigration), 2003 FCTD 429, [2003] 4 F.C. 771
(F.C.T.D.).
. . .
[31] Whether the issue be the best interest of the democratic
state in question and of civil society in general, or the individual interest
of the victim or perpetrator of an alleged criminal offence, the payment of a
monetary or other benefit of any kind to a police or law officer is
illegal. Of course, if corruption is widespread it may ultimately lead to
undermining the trust individuals may have in government institutions,
including the judicial system. As the Supreme Court has noted, “democracy
in any real sense of the word cannot exist without the rule of law” (Reference
Re Secession of Quebec, [1998] 2 S.C.R. 217, at paragraph 67).
Due process of law and equality before the law are the vital strength of any
democracy and create a legitimate expectation in individuals that the state
will do what is necessary to go after criminals and bring them to justice, and
if necessary to stamp out corruption. The independence and impartiality
of the judiciary and its components are not negotiable. These are
fundamental values in any country which claims to be a true democracy.
Therefore, the degree to which a state tolerates corruption in the political or
judicial apparatus correspondingly diminishes its degree of democracy.
That being said, I do not have to decide here whether the documentary evidence
established, as the applicant vigorously claimed, such a degree of corruption
that it can be said it was not unreasonable in the circumstances for the
applicant not to approach the police of his country before seeking
international protection. Due to its special expertise and its
knowledge of the general conditions prevailing in a given country, the Board is
in a much better position than this Court to answer such a question.
Nevertheless, the Court must still be able to understand the Board’s reasoning.
. . .
[36] .
. . I do not have to decide here whether Mexico is capable
of protecting its nationals. I do not have to substitute my judgment for
that of the Board and make specific findings of fact on the evidence as a
whole. Suffice it to note here that the Board simply chose arbitrarily to
disregard or not deal with relevant evidence which could have supported the
applicant’s arguments, and in the circumstances this makes its decision
reviewable: see Tufino v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1690, at paragraphs 2-3; A.Q. v. Canada (Minister
of Citizenship and Immigration), 2004 FC 677, at paragraphs 17-18,
[2004] F.C.J. No. 834 (F.C.) (QL); Castro v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1165, at paragraphs 30‑34,
[2005] F.C.J. No. 1923 (F.C.) (QL).
(In Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, [2006] F.C.J. No. 439
(QL), the words of Mr. Justice Luc J. Martineau properly summarize
the state of the law concerning State protection.)
JUDICIAL PROCEEDINGS
[2]
This is an application
for judicial review of a decision of the Refugee Protection Division dated June 20,
2006, which concluded that the applicants were not Convention refugees
(section 96 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27) (Act) or persons in need of protection (section 97 of
the Act).
FACTS
No questions were raised concerning the credibility of the claimants, and
the following facts emerge from this specific case.
[3]
Augusto Pedro Prieto
Velasco, his spouse, Carla Mercedes Guazzotti Del Risco (principal applicant), and
their two children, Giancarlo and Mauricio Alberto Guerra Guazzotti, are
citizens of Peru.
[4]
Mr. Velasco and the
children based their application on that of the principal applicant, who
alleged the following facts.
[5]
Ms. Del Risco was a school
transport driver in Peru, and her clientele was mainly made up of
children from a well-to-do background.
[6]
On July 20, 2005, Ms.
Del Risco received a call from the Sendero Luminoso (SL), or Shining Path, a
well-known terrorist organization in Peru, asking her for
information about the parents of a child she transported and who, it seems, was
sought by the organization. Ms. Del Risco refused to co-operate with
the SL.
[7]
On July 21, 2005, Ms. Del Risco received threats by telephone and
was asked to supply information about the children of the Tarfur family. The
father is a prominent editor of a newspaper in Lima
which denounces the activities of the SL.
[8]
On the same day,
robbers searched the applicants’ house and made off with a list containing the
addresses of Ms. Del Risco’s clients. Mr. Velasco then
complained to the police about this incident. The police demanded a bribe to open
an investigation into this case. In addition, the police made it clear to the applicants
that they themselves could be investigated if they did not meet the officers’
demands.
[9]
On August 9, 2005, Ms.
Del Risco’s automobile was intercepted by two motorcyclists. The principal
applicant was physically assaulted, and death threats were made against her.
[10]
On August 15, 2005, the applicants left Peru
and stayed several days at Vive la Casa, an organization which helps refugees
in the United States. On August 24, 2005, the applicants
entered Canada and claimed refugee protection at the
border.
IMPUGNED DECISION
[11]
On June 20, 2006, the Board dismissed the applicants’ claim for
refugee protection. The Board determined that the applicants were not “Convention
refugees” under section 96 of the Act or “persons in need of protection”
within the meaning of subsection 97(1) of the Act.
[12]
The Board was not
satisfied that the applicants had exhausted all avenues available to them to obtain State protection in Peru.
ISSUE
[13]
Did the Board err in
determining that the applicants did not discharge the burden of proving that
the Peruvian State could not adequately protect them?
LEGISLATION
[14]
Sections 96 and 97 of
the Act read as follows:
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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
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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.
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STANDARD OF JUDICIAL REVIEW
[15]
The standard of
judicial review applicable to the determination of the State’s ability to
ensure the protection of an applicant has been analyzed on several occasions by
this Court. According to one line of thought, this is a question of fact which
must be assessed according to the patent unreasonableness standard. (Nawaz
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1255, [2003] F.C.J. No. 1584
(QL), at paragraph 19; Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1449, [2004] F.C.J. No. 1755
(QL), at paragraph 9).
[16]
According to another line of thought, this question
is subject to the reasonableness simpliciter standard. (Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL), at paragraph 11;
Danquah v. Canada
(Minister of Citizenship and Immigration), 2003 FC
832, [2003] F.C.J. No. 1063 (QL), at paragraph 11; Machedon v. Canada (Minister of Citizenship and Immigration), 2004 FC 1104, [2004] F.C.J. No. 1331 (QL), at paragraph 70).
[17]
In Chaves, supra, Madam Justice
Danièle Tremblay-Lamer, after conducting a pragmatic and functional analysis to
determine the applicable standard of review, concluded that this is a question
of mixed fact and of law to which the standard of reasonableness simpliciter
applies. In this case, the Court will adopt this analysis for the purposes of
studying the issue in dispute. Accordingly, a decision will be deemed
unreasonable if, in the main, it is not supported by any factual or
legal reasons that can stand up to a somewhat probing examination. (Canada (Director of Investigation and Research, Competition Act v. Southam Inc.), [1997] 1 S.C.R. 748, [1996] S.C.J.
No. 116 (QL), at paragraph 56)
ANALYSIS
[18]
The applicants
essentially submit that the Board erred on one point in concluding that (1) they
did not discharge the burden of showing that the Peruvian State could not adequately
protect them.
The Board
erred in determining that the applicants did not discharge the burden of
showing that the Peruvian State could not adequately protect them.
[19]
The applicants submit
that the Board did not correctly analyze the matter of State protection, in
that they actually did seek the protection of the Peruvian State, but without any
success. In addition, the applicants allege that the Board did not take into
consideration the documentary evidence which clearly shows that the Peruvian State cannot adequately protect some of its
citizens. Finally, they submit that they met their burden of adducing clear and
convincing evidence of the State’s inability to protect them in their
specific circumstances.
[20]
Writing on behalf of
the Supreme Court of Canada in Canada (Attorney General) v. Ward
[1993] 2 S.C.R. 689, at paragraphs 49, 50 and 52, Mr. Justice Gérard Vincent
LaForest stated that, in the absence of a complete breakdown of state
apparatus, it should be assumed that the State is capable of protecting its
citizens. The danger that this presumption will operate too broadly is
tempered by a requirement that clear and convincing proof of the State’s
inability to protect must be advanced.
In order to rebut the presumption of the State’s ability to protect its
citizens, an applicant may submit to the Board the testimony of similarly
situated individuals. The applicant may also rely on documentary evidence on the
record or advance testimony of past personal incidents.
[21]
In Avila, supra, the words of Martineau J.
properly summarize the state of the law concerning State protection:
[27] In order to determine whether a refugee protection claimant
has discharged his burden of proof, the Board must undertake a proper
analysis of the situation in the country and the particular reasons why the
protection claimant submits that he is “unable or, because of that risk,
unwilling to avail [himself] of the protection” of his country of nationality
or habitual residence (paragraphs 96(a) and (b) and
subparagraph 97(1)(b)(i) of the Act). The Board must consider
not only whether the state is actually capable of providing protection but also
whether it is willing to act. In this regard, the legislation and
procedures which the applicant may use to obtain state protection may reflect
the will of the state. However, they do not suffice in themselves to
establish the reality of protection unless they are given effect in practice:
see Molnar v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 1081, [2003] 2 F.C. 339 (F.C.T.D.); Mohacsi v. Canada (Minister of Citizenship and
Immigration), 2003 FCTD 429, [2003] 4 F.C. 771
(F.C.T.D.).
[28] No state which professes democratic values or asserts its
respect for human rights can guarantee the protection of each of its nationals
at all times. Therefore, it will not suffice for the applicant to show
that his government was not always able to protect persons in his position (Villafranca,
supra, at paragraph 7). Nonetheless, though government
protection does not have to be perfect, some protection must exist the minimum
level of which does not have to be determined by the Court. The Board may
in the circumstances determine that the protection provided by the state is
adequate, with reference to standards defined in international instruments, and
what the citizens of a democratic country may legitimately expect in such
cases. In my opinion, this is a question of fact which does not have to
be answered in absolute terms. Each case is sui generis.
For example, in the case of Mexico, one must look not only at the protection existing at the federal
level, but also at the state level. Before examining the question of
protection, the Board must of course be clear as to the nature of the fear of
persecution or risk alleged by the applicant. When, as in this case,
the applicant fears the persecution of a person who is not an agent of the
state, the Board must inter alia examine the motivation of the
persecuting agent and his ability to go after the applicant locally or
throughout the country, which may raise the question of the existence of
internal refuge and its reasonableness (at least in connection with the
analysis conducted under section 96 of the Act).
[29] Accordingly, when the government is not the persecuting
agent, and even when it is a democratic state, it is still open to an applicant
to adduce evidence showing clearly and convincingly that it is unable or does
not really wish to protect its nationals in certain types of situation: see Annan
v. Canada (Minister of Citizenship and Immigration, [1995] 3 F.C. 25
(F.C.T.D.); Cuffy v. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 1316 (F.C.T.D.) (QL); Elcock v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1438 (F.C.T.D.)
(QL); M.D.H.D. v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 446 (F.C.T.D.) (QL). It should be borne in mind
that most countries might be prepared to try to provide protection, although an
objective assessment could establish that they are not in fact able to do so in
practice. Further, the fact that the applicant must place his life at
risk in seeking ineffective state protection, simply in order to establish such
ineffectiveness, seems to be contrary to the purpose of international
protection (Ward, supra, at paragraph 48).
[30] At the same time, Kadenko, supra, indicates that it
cannot be automatically found that a state is unable to protect one of its
nationals when he has sought police protection and certain police officers
refused to intervene to help him. Once it is established that a country
(in that case Israel) has judicial and political institutions capable of
protecting its nationals, from the refusal of certain police officers to
intervene, it cannot by ipso facto inferred that the state is unable to
do so. It is on this account that the Federal Court of Appeal mentioned obiter
that the burden of proof on the claimant is to some extent directly
proportional to the “degree of democracy” of the national’s country. The
degree of democracy is not necessarily the same from one country to
another. Therefore, it would be an error of law to adopt a “systemic” approach
as to the protection offered to the nationals of a given country. This is
what is likely to happen when the reasons for dismissal given by the Board are
too general and may apply equally to another country or another claimant (Renteria
et al. v. Canada (Minister of Citizenship and Immigration), 2006 FC 160).
[31] Whether the issue be the best interest of the democratic
state in question and of civil society in general, or the individual interest
of the victim or perpetrator of an alleged criminal offence, the payment of a
monetary or other benefit of any kind to a police or law officer is
illegal. Of course, if corruption is widespread it may ultimately lead to
undermining the trust individuals may have in government institutions, including
the judicial system. As the Supreme Court has noted, “democracy in any
real sense of the word cannot exist without the rule of law” (Reference Re
Secession of Quebec, [1998] 2 S.C.R. 217, at paragraph 67). Due
process of law and equality before the law are the vital strength of any
democracy and create a legitimate expectation in individuals that the state
will do what is necessary to go after criminals and bring them to justice, and
if necessary to stamp out corruption. The independence and impartiality
of the judiciary and its components are not negotiable. These are
fundamental values in any country which claims to be a true democracy.
Therefore, the degree to which a state tolerates corruption in the political or
judicial apparatus correspondingly diminishes its degree of democracy.
That being said, I do not have to decide here whether the documentary evidence
established, as the applicant vigorously claimed, such a degree of corruption
that it can be said it was not unreasonable in the circumstances for the
applicant not to approach the police of his country before seeking
international protection. Due to its special expertise and its
knowledge of the general conditions prevailing in a given country, the Board is
in a much better position than this Court to answer such a question.
Nevertheless, the Court must still be able to understand the Board’s reasoning.
[32] . . . [T]he main flaw of the impugned decision results
from a complete lack of analysis of the applicant’s personal situation.
It is not sufficient for the Board to indicate in its decision that it
considered all the documentary evidence. A mere reference in the decision
to the National Document Package on Mexico, which contains an impressive number of documents, is not
sufficient in the circumstances. The Board’s hasty findings and its many
omissions in terms of evidence make its decision unreasonable in the
circumstances. Further, because of the laconic nature of the reasons for
dismissal contained in the decision, it cannot stand up to somewhat probing
examination. For example, although the Board held that section 96 of
the Act did not apply in the case at bar, it is not clear from reading its
reasons that it actually analyzed the personal risk the applicant would face if
he were returned to Mexico in terms of each of the specific tests and of the
burden of proof applicable under section 97 of the Act: see Li, supra;
Kandiah v. Canada (Minister of Citizenship and Immigration), 2005 FC
181, [2005] F.C.J. No. 275 (F.C.) (QL).
[33] In assessing the applicant’s personal situation, as his
credibility was not questioned in the impugned decision, we must accept the
particular facts leading to his departure from Mexico (Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302,
at paragraph 5 (F.C.A.)). Therefore, the Board could not simply
state that if the claimant’s appeal to the police were made in vain, he could
have appealed to the CNDH and the CEDH, two organizations concerned with human
rights. It is not the role of those organizations to protect the victims
of criminal offences; that is the duty of the police: see Balogh v. Canada (Minister
of Citizenship and Immigration), 2002 FCTD 809, at paragraph 44,
[2002] F.C.J. No. 1080 (F.C.T.D.) (QL); N.K. v. Canada (Solicitor
General) (1995), 107 F.T.R. 25, at paragraphs 44-45
(F.C.T.D.).
. . .
[35] The Board’s role was to make findings of fact and arrive at a
reasonable finding based on the evidence, even if conflicting. In this
case, it is clear that the Board completely disregarded relevant
evidence. The Board cannot, without giving reasonable grounds, ignore or
dismiss the content of a document dealing expressly with state protection in a
given region (Renteria et al., supra). For example, the document Mexico: State Protection
(December 2003 - March 2005), supra, though it was filed
at the hearing, was not mentioned in the decision. This document, which
originates with the Board’s Research Directorate, presents an overall and quite
detailed view of the protective machinery available in Mexico and its
dubious effectiveness. Taken in isolation, certain passages from the
document appear to show that there is some desire by the present government to
improve the situation, while other passages suggest that protective measures
are ineffective, at least in certain cases. The same applies to a host of
other relevant documents which were part of the National Documentation Package
on Mexico that were not considered by the Board. It is clear
that in the instant case the Board undertook a superficial, if not highly
selective, analysis of the documentary evidence
[36] I do not have to decide here whether Mexico is capable
of protecting its nationals. I do not have to substitute my judgment
for that of the Board and make specific findings of fact on the evidence as a
whole. Suffice it to note here that the Board simply chose arbitrarily to
disregard or not deal with relevant evidence which could have supported the
applicant’s arguments, and in the circumstances this makes its decision
reviewable: see Tufino v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1690, at paragraphs 2-3; A.Q. v. Canada
(Minister of Citizenship and Immigration), 2004 FC 677, at
paragraphs 17-18, [2004] F.C.J. No. 834 (F.C.) (QL); Castro v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1165, at
paragraphs 30‑34, [2005] F.C.J. No. 1923 (F.C.) (QL). [Emphasis added]
[22]
In the case at bar, in
its reasons, the Board failed to present an analysis of the documentary
evidence submitted to it. This evidence shows that the SL is a terrorist
organization and is still a deadly threat in Peru:
The terrorist group Shining Path continued to kill civilians as well
as military and police officials. There were 60 reported terrorist incidents
during the year, the most serious of which occurred in Junin, Huanuco, San
Martin, and Ayacucho. During the year members of Shining Path killed 17
policemen, 5 civilians, and 1 judge. For example in July, members of Shining
Path killed four civilians, one policeman, and one judge in two separate
incidents in Satipo Province and Tocache
Province.
. . .
The Shining Path committed kidnappings. In November a group of
heavily armed Shining Path members kidnapped 10 employees of a foreign
development contractor in Huanuco Department. The abductors later released the
employees but threatened to kill them if they returned to the area.
(United States Department of State Report published
in March 2006, Applicant’s Record, at page 28).
[23]
In addition, according
to the United States Department of State Report published in March 2006, Peru is a corrupt country:
Experts noted that the PNP (Peruvian National Police) was undermanned, had problems with
professionalism, was often ineffective against common criminal activity, and
unable at times to meet its mandated responsibilities, such as witness
protection. Corruption and impunity were problems.
. . .
Witness protection remained a significant weakness of the justice
system.
. . .
Corruption remained a major problem, which the government took steps
to address.
. . .
Despite these advances, the pace of anticorruption prosecutions
remained a concern.
(Applicant’s Record, at pages 29, 30, 32 and 33)
[24]
In addition, there is
ample case law establishing that the Peruvian State does not
have the resources to protect some of its citizens against threats or attacks
from the SL:
. . . The
2000 U.S. Department of State Report noted that while progress was being made,
the Shining Path posed a “still lethal threat”. An article written on the
Shining Path in 2000 noted that:
Although
the Shining Path’s military strength and organizational capacity have been
greatly reduced in recent years, it remains a visible force capable of
undertaking successful terrorist attacks on public and private infrastructure
and assassinating police personnel and civilians. It is unlikely that the
Peruvian government will be able to completely suppress the group any time
soon. This is due largely to the fact that the social and economic conditions
that spawned the revolution — including widespread poverty, unemployment, and
hopelessness in rural and urban areas — have improved little since the group
was founded in the 1960s.
(Ortiz v. Canada (Minister of Citizenship and Immigration), 2004 FC 690, [2004] F.C.J. No. 863
(QL), at paragraph 11; Pillhuaman v. Canada (Minister of Citizenship and Immigration), 2006 FC 748, [2006] F.C.J. No. 944
(QL), at paragraphs 34-36)
[25]
Finally, by determining
that there was adequate protection in Peru and that the
applicants should have complained following the incidents, and by requiring
that they exhaust all avenues available to them in their country, the Board
rendered an unreasonable decision, because it failed to take into consideration
that the applicants’ situation worsened once they had complained to the police.
In fact, this conclusion is contrary to the principle established by this Court
in Shimokawa v. Canada (Minister of Citizenship and Immigration), 2006 FC 445, [2006] F.C.J. No. 555
(QL), at paragraph 21, according to which, “ . . . in seeking state
protection, refugee claimants are not expected to be courageous or foolhardy.
It is only incumbent upon them to seek protection if it is seen as being
reasonably forthcoming. If the refugee claimants provide clear and convincing
evidence that contacting the authorities would be useless or would make things
worse, they are not required to take further steps” (See also: Ward,
supra, at paragraph 28). Therefore, this error warrants
intervention by this Court to the extent that this determination could not
stand up to a probing examination.
CONCLUSION
[26]
For these reasons, the
application for judicial review is allowed, and the matter is referred back to
a differently constituted panel for rehearing.
ORDER
THE COURT ORDERS that the
application for judicial review be allowed and that the matter be referred back
to a differently constituted panel for redetermination.
“Michel M.J. Shore”
Certified
true translation
Michael
Palles
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