Date: 20081006
Docket: IMM-3390-07
Citation: 2008 FC 1122
Ottawa, Ontario, October 6, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
LUIS ARTURO FRANCO TABOADA
CLAUDIA GUADALUPE ESCORCIA ORDONEZ
LEONARDO ARTURO FRANCO ESCORCIA
KARLA GUADALUPE GALARZA ESCORCIA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated July 24, 2007, which found that the applicants were
neither Convention refugees nor persons in need of protection.
[2]
The
applicants requested that the decision be set aside and the matter be referred
back to a newly constituted panel of the Board for re-determination.
Background
[3]
Luis
Arturo Franco Taboada (the principal applicant), his wife, Claudia Guadalupe
Escorcia Ordonez, son, Leonardo Arturo Franco Escorcia and stepdaughter, Karla
Guadalupe Galarza Escorcia (collectively, the applicants), are all citizens of Mexico. The
applicants based their applications for refugee status on the principal
applicant’s claim. The principal applicant alleged that while he was working in
Veracruz as a manager
for Banco Azteca (a national bank), his supervisor, Jose Luis Chavarria
Cambrano pressured him into becoming his lover. The principal applicant alleged
that over time Chavarria Cambrano’s advances towards him became more
aggressive, but the principal applicant always refused them.
[4]
One
night while at work, the principal applicant alleged that he witnessed Chavarria
Cambrano engaged in oral sex with Gerardo Mendez, a senior bank officer. The
principal applicant also alleged that he discovered that Chavarria Cambrano and
Gerardo Mendez were conducting fraudulent transactions at the bank.
Essentially, they were authorizing loans to people that did not exist, taking
the money for themselves and then as head of collections for the bank, Mendez
would write the accounts off as unrecoverable. The principal applicant alleged
that he confronted Chavarria Cambrano with his discoveries on January 25, 2006
and in response, Chavarria Cambrano threatened him saying that he could keep
his job and would receive money if he would give in to the sexual advances. The
principal applicant alleged that when he refused, the threats and sexual
harassment escalated. As a result, the principal applicant alleged that in
February 2006, he told Chavarria Cambrano that he was going to approach Luciano
Vargas, the divisional director of the bank, about the fraudulent activities.
In response, Chavarria Cambrano said “you don’t know who you are dealing with
and […] Mr. Vargas has been my lover for the last five years . . .”.
[5]
On
the night of February 12, 2006, the applicant alleged that he was kidnapped
while leaving work. He was taken in a car by four men and beaten. The men
threatened the principal applicant’s family and told him they would all be
murdered if he told anyone about Chavarria Cambrano’s sexual involvement with Mendez
and Vargas or the fraudulent activities. Before they released the principal
applicant, the men explained that they knew all of the details of his life and
his families. The following day, their house was shot at eight times. In fear,
the principal applicant’s daughter was sent to Mexico City to live with
her biological father. On February 14, 2006, the principal applicant submitted
his resignation to the bank. He had to wait until March 2006 to officially
leave the bank because as a manager, all the accounts at the bank he managed
had to be audited before his resignation could be accepted. During this waiting
period, the principal applicant alleged that his family was continually
threatened. The principal applicant, his wife and son finally fled to Mexico City in March
2006.
[6]
The
principal applicant alleged that during the evening of March 20, 2006, he was
out buying groceries when he was kidnapped a second time. The principal
applicant alleged that he was beaten, threatened, and reminded of the previous
kidnapping. After being released, the principal applicant reported the incident
to police in Mexico
City
and also made a report to the National Commission of Human Rights. In light of
the reports filed, the principal applicant felt that the threat to his and his
family’s safety was heightened. As a result, he, his wife and his son fled to Canada in April
2006, and made a refugee claim in May 2006. The principal applicant’s
stepdaughter followed in July 2006 and made her claim for refugee status at the
airport upon arrival. In a decision dated July 24, 2007, the Board found that
the applicants were neither Convention refugees, nor persons in need of
protection. This is the judicial review of the Board’s decision.
Board’s
Decision
[7]
In
rendering its decision, the Board found that the principal applicant’s account
of the second kidnapping was implausible. The Board found on a balance of
probabilities that if the first attack had been ordered by Chavarria Cambrano
to keep the principal applicant quiet, it had succeeded, and thus there was no
reason for a second attack. The Board noted that counsel for the applicants had
raised the difficulties inherent in speculating as to the reasonability of the
actions of the agents of persecution, but the Board did not find these
arguments convincing.
[8]
The
Board was also satisfied on a balance of probabilities that the principal
applicant had not made a police report of the incidents. In making this
finding, the Board relied on the principal applicant’s oral testimony wherein
he replied “no” that he had never made a report to police when being questioned
about the first kidnapping incident.
[9]
The
Board also took issue with an apparent inconsistency between the principal
applicant’s PIF narrative and his oral testimony with regards to the second
kidnapping and the identity of the person who had ordered it. While paragraph
24 of his narrative stated that he knew it was Chavarria Cambrano when his
attackers mentioned Veracruz, in his oral testimony he claimed that his
attackers informed him that they had been sent by Chavarria Cambrano. The Board
also noted that the police report (which the Board found not to be genuine)
fails to mention that the attackers mentioned Chavarria Cambrano by name. The
Board stated:
It is one thing to say that I believe
Chavarria Chambrano is responsible but it is very different to say I know
Chavarria Cambrano is responsible because the attackers told me while they were
beating me that this is a message from Chavarria Cambrano. The first is
opinion; the second case is direct evidence.
[10]
The
Board’s ultimate finding on the inconsistency was that given there was no
mention of the statements made by the attackers in the narrative or the body of
the police report, this detail was created by the principal applicant to
advance his claim.
[11]
The
Board also found that the police report submitted by the applicant had been
altered. The Board noted that the letterhead was aligned on the page
differently than the body of the report and that the obvious explanation was
that the letterhead was copied or scanned onto a page misaligned and then the
body was added thereafter. The Board agreed that this was speculation on their
part; however, on a balance of probabilities found that if this was a copy of a
genuine report, the letterhead would be aligned with the page. The Board also
denied the request by counsel for the applicants to send the document for
verification reasoning that this was not the only problem with the evidence and
it would not offset the remaining issues.
[12]
Given
all of the above findings, the Board found that the principal applicant was not
a credible witness, and as such, chose not to conduct an analysis of the
availability of state protection. In conclusion the Board rejected the
applicants’ claims pursuant to both sections 96 and 97 of the Act.
Issues
[13]
The
applicants submitted the following issues for consideration:
1. Did
the Board err in finding that the principal applicant’s evidence was
implausible?
2. Did
the Board ignore the principal applicant’s corroborating medical evidence?
3. Did
the Board err in finding that the principal applicant’s evidence was
inconsistent?
4. Did
the Board err in drawing a negative inference from an alleged omission from the
principal applicant’s PIF and police report?
5. Did
the Board err in finding that the principal applicant’s police report was not
genuine?
[14]
I
would rephrase the issues as follows:
1. What
is the appropriate standard of review?
2. Did
the Board apply the wrong legal test in finding that the second kidnapping was
implausible?
3. Did
the Board err in failing to consider the principal applicant’s corroborating
medical evidence?
4. Was
the Board’s finding that the principal applicant’s oral evidence was
inconsistent with respect to whether or not he approached the police
unreasonable?
5. Did
the Board err in drawing a negative credibility inference from an alleged
omission from the principal applicant’s PIF and police report?
6. Was
the Board’s finding related to whether or not the applicant made a police
report reasonable?
Applicants’ Written
Submissions
[15]
The
applicants submitted that the Board erred in finding that the second kidnapping
was implausible. The applicants noted that the principal applicant had always
been honest in stating that he could not explain why he had been kidnapped a
second time given that he was silent after the first kidnapping. The applicants
noted that during the hearing, counsel for the applicants attempted to present
some potential explanations for the kidnappers’ actions including that the
second kidnapping might have been ordered by someone else involved in the
fraudulent activity. The applicants took issue with the Board’s finding that
absent further evidence, the Board could not conclude that counsel’s
speculation was the “probable reason for the attack.” The applicants submitted
that the Board applied the wrong test; the correct test requires the applicants
to prove on a balance of probabilities that the second kidnapping occurred, not
why it occurred. Moreover, the Board had failed to identify any valid basis for
doubting that the attack occurred (Yoosuff v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1116). The applicants submitted
that this finding should be set aside because although implausibility findings
are reviewable on a standard of patent unreasonableness, only in the clearest
of cases can implausibility findings withstand scrutiny (Karakeeva v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 492 at
paragraph 13).
[16]
The
applicants also submitted that the Board failed to consider corroborating
medical evidence submitted by the principal applicant, namely, photographs of
scars resulting from the torture and a medical report corroborating his
injuries. The applicants noted that the Board did not refer to this evidence in
its decision. While the Board does not have an obligation to refer to every
piece of evidence before it, a claimant’s relevant personal documentation
should ordinarily be addressed (Gourenko v. Canada (Solicitor
General), [1995] F.C.J. No. 682).
[17]
The
applicants’ third argument was that the Board erred in finding that the
principal applicant had not made a report to police after the second
kidnapping. It was submitted that the Board misunderstood the principal
applicant’s testimony that he had not made a report to police. The applicants
admitted that the principal applicant replied “no” when asked if he had made a
report to authorities, but stated that this answer was in relation to the principal
applicant’s actions after the first kidnapping. The applicants submitted that upon
reading the transcript of the principal applicant’s oral testimony, it is evident
that the Board erred in finding as it did.
[18]
The
applicants also submitted that the Board erred in drawing a negative inference
from an alleged omission in the principal applicant’s PIF and police report.
The applicants argued that while the principal applicant’s PIF narrative and
the police report did not include that his attackers had actually uttered Chavarria
Cambrano’s name during the second kidnapping, this was not an omission of
sufficient significance or importance to form the basis of the Board’s negative
credibility finding.
[19]
And
finally, the applicants disputed the Board’s finding that the police report was
not genuine. The applicants submitted that the Board has no particular
expertise assessing the genuineness of foreign documents (Cheema v. Canada (Minister of
Citizenship and Immigration), 2004 FC 224). The applicants further
submitted that the Board erred in refusing to have the report verified as this
evidence was central to the applicants’ case. If found to be genuine through
verification, two of the Board’s four negative findings would have evaporated
and the two remaining would have to be reconsidered.
Respondent’s Written
Submissions
[20]
The
respondent submitted that the applicants are challenging the Board’s
credibility findings and they are subject to the most deferential standard on
review (Tekin v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 357).
[21]
The
respondent submitted that the Board did not require the applicants to prove why
the second attack occurred; the Board simply found the entire event so
implausible that it doubted whether or not it had even occurred. The respondent
submitted that the case of Yoosuff above, relied on by the applicants is
distinguishable from this case. In Yoosuff above, the persecutors were
known to have done the very actions the Board considered irrational, whereas in
the present case, there is no evidence that the alleged persecutors were known
to attack victims, impose conditions, and then attack again although the
victims complied with the conditions.
[22]
With
regards to the applicants’ argument that the Board ignored medical evidence,
the respondent submitted that the applicants have conceded that the Board is
not required to refer to every piece of evidence in their decision (Woolaston
v. Canada (Minister of Employment and Immigration), [1973] S.C.R.
102). Moreover, the respondent submitted that relevance is not the only
criteria in determining whether or not the evidence should be addressed by the
Board. The Board must consider whether the document (1) bears on the relevant
time period, (2) is prepared by a reputable, independent author who is in a
position to be the most reliable source of information, and (3) is directly
relevant to the claim (Gourenko, above). The respondent argued that the
medical evidence did not satisfy the second enumerated requirement.
[23]
The
respondent also submitted that the applicants’ argument that the Board
misinterpreted the principal applicant’s testimony is baseless. The respondent
submitted that the Board considered whether the principal applicant had
misunderstood the question and concluded that it was not plausible that he had.
The Board provided clear reasons for its decision.
[24]
Regarding
the applicants’ argument that the Board erred in drawing a negative inference
from an omission in the principal applicant’s PIF and police report, the
respondent submitted that this is simply not so. There was a clear omission in
the PIF narrative and police report and it was reasonable for the Board to
conclude as it did.
[25]
And
finally, with regards to the Board’s finding that the police report was not
genuine, the respondent submitted that one does not have to be an expert on
forged documented to be suspicious about a letterhead which is misaligned with
the body of the letter. Moreover, the Board’s decision not to send the police
report for verification was not an error given the Board’s other implausibility
findings.
Applicants’ Written Reply
[26]
On
reply, the applicants responded to a number of the respondent’s submissions. With
regards to the standard of review, the applicants agreed that the standard is
patently unreasonable, but submitted that the Board is in no better position
than the Court to make such determinations.
[27]
As
to the implausibility of the second kidnapping, the applicants submitted that
the respondent has failed to understand that the Board’s implausibility finding
was based on the fact that there was “no reason” for the second kidnapping and
as such, the Board has required the applicants to prove on a balance of
probabilities why it occurred, not that it occurred. The applicants also argued
that the photographs and medical report did satisfy the requirements in order
to be specifically addressed by the Board. The applicants submitted that this
evidence should have been addressed as it corroborated the principal applicant’s
claim of torture during the second kidnapping and therefore met the criterion
of being from an independent author.
Analysis and
Decision
[28]
Issue
1
What is
the appropriate standard of review?
The Supreme
Court of Canada in Dunsmuir
v. New
Brunswick,
[2008] S.C.J. No. 9 on March 7, 2008, collapsed the standard of reasonableness simpliciter
and patent unreasonableness for a more straightforward standard of
reasonableness. Dunsmuir above, also streamlined the steps to take in
establishing the appropriate standard of review, which was previously referred
to as the “pragmatic and functional” approach. The Supreme Court proposed a two
step process at paragraph 62:
First, courts ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
[deference] to be accorded with regard to a particular category of question.
Second, where the first inquiry proves unfruitful, courts must proceed to an
analysis of the factors making it possible to identify the proper standard of
review.
[29]
In Dunsmuir above, the Supreme Court of Canada has
stated that questions of law are generally reviewed on a standard of
correctness however, the Court also stated that when an administrative body is
interpreting its own statute, deference may be granted and a standard of
reasonableness might apply when certain factors are considered. The Court also
stated that questions of fact are to be reviewed on a standard of
reasonableness. Questions of mixed fact and law will be reviewed on a standard
of reasonableness.
[30]
In the past, great deference was given to the board’s
credibility findings and they were reviewable on the then standard of patent
unreasonableness. However, credibility findings based on implausibilities were
scrutinized closer by the courts but the standard of review of patent
unreasonableness still applied.
[31]
I am of the view that following the jurisprudence contained
in Dunsmuir above, the standard of review to be applied to credibility findings
based on implausibility should now be reviewed on a standard or reasonableness.
[32]
Issue
2
Did the
Board err in finding that the second kidnapping was implausible?
In finding
that the second kidnapping was implausible, the Board relied upon the idea that
there was no reason for a second kidnapping given that the first kidnapping had
accomplished what it was meant to do. The applicant challenged this finding on
the basis that the Board applied the wrong legal test. While I disagree that
this involves a legal test, I agree that the basis of the decision is not in
accordance with the law. As stated above, the applicant’s evidence is presumed
true unless there are cogent reasons not to believe the claimant, Vodics
above.
[33]
In
this case, the Board member rejected the
plausibility of the second kidnapping based on his own assumptions on how
people act rather than on the evidence before him. I acknowledge that the Board
member did have issues with evidence related to the second kidnapping (the
issue of whether Chavarria Cambrano was mentioned by name during the beating
and the issue of whether a police report was ever made following the attack),
however, these are not the reasons that the Board member uses to reject the
second kidnapping outright. As stated in the reasons of the Board:
[…]
I am not persuaded that these various explanations provided by counsel explain
or provide a framework that I could accept as a probably reason for the attack.
[…]
On
a balance of probabilities, if Chavarria Cambrano ordered the first attack to
keep the principal claimant quiet, there is no reason for a second attack.
[34]
In my opinion, this
was unreasonable and an error on the part of the Board. The Board is not
permitted to judge the reason the attack occurred but only “that” the attack
occurred. I accept the applicant’s argument that the Board did not identify any
valid basis for doubting the attack occurred. The alleged kidnappers did not
give evidence, and as such, the applicant’s story must be believed unless
common sense and rationality based on the whole of the evidence (Shahamati
above) suggests that his version of the attack should not be believed.
Otherwise, the applicant is ultimately not availed of the principles of natural
justice.
[35]
The finding of
implausibility was done on the bare finding that the second kidnapping must not
have happened because the kidnappers and torturers may have accomplished what
they intended with the first kidnapping. Justice O’Reilly in Yoosuff v. Canada (Minister of Citizenship and Immigration)
2005 FC 1116 stated that
the Board erred when they seemed to require an applicant to prove that agents
of persecution act rationally or justifiably. In my opinion, the Board’s
credibility finding based on implausibility was not reasonable and must be set
aside. I would allow the judicial review on this ground.
[36]
Issue
3
Did the
Board err in failing to consider the principal applicant’s corroborating
medical evidence?
The
applicants submitted that the Board erred in failing to consider the principal applicant’s
corroborating medical evidence in its decision. The medical evidence in
question consists of photographs of the scars the principal applicant bears on
his back and finger as a result of the torture that he suffered, as well as a
medical report from a physician. The respondent submitted that the Board is
under no duty to refer to every piece of evidence in its decision. Moreover,
the respondent also submitted that the evidence in question was not prepared by
a reputable, independent author and as such does not meet the criteria set out
in Gourenko above.
[37]
I
am satisfied that the Board erred in not explaining how its consideration of
the corroborating medical evidence factored into its analysis in rendering its
decision. I do not agree with the respondent that the evidence was not prepared
by a reputable, independent author; the photographs speak for themselves, and
the medical report is authored by a physician.
[38]
I
accept that the Board is presumed to have considered all the evidence before it
(Hassan v. Canada (Minister of Employment and Immigration) (1992),
147 N.R. 317 (C.A.)). I also recognize that the Board is under no duty to
mention every piece of evidence in its reasons; however, in my opinion, the
evidence in question was personal to the principal applicant, and corroborated
his allegations of persecution. As a result, the Board had a duty to assess the
evidence and provide an explanation as to how it factored into the analysis of
the claim. As such, I would allow the judicial review on this ground.
[39]
Issue
4
Was the
Board’s finding that the principal applicant’s oral evidence was inconsistent
with respect to whether or not he approached the police unreasonable?
The
relevant portion of the Board’s decision reads as follows:
Did the principal claimant make a police
report that accused Chavarria Cambrano or others of wrongdoing? I am satisfied
this is not the case.
Early in the hearing I asked if the
principal claimant had ever reported his suspicions concerning his former boss
to any authority. He responded “no”. The principal claimant explained to his
counsel he thought my first question referred only to the time after the first
kidnapping. If that was the case, I would not have worded the question as I
did. Even so, his response, to be consistent with the balance of his evidence,
should have been something in the nature of “not at that time” or “only later”.
His fear today, he states, is even
greater due to his making a report both to the police and the national Human
Rights Commission. Since it is these reports that may increase his fear of
returning, I do not accept that the claimant would answer in the negative if he
had in fact made such reports in the past.
[40]
The
relevant portions of the hearing transcript read as follows:
PRESIDING MEMBER: And when did you move from Veracruz back to Mexico City?
PRINICPAL CLAIMANT: I arrived after that day right
away, exactly on the 5th. However, I have to tell you that I had
resigned before. That was on February 13th, right after the first
kidnapping. However, because of my position as a bank manager, I was not able
to leave that branch right away, until the proper auditing had been carried
out.
PRESIDING MEMBER: Did you ever make a report to
any authorities about your suspicions concerning you [sic] former boss?
PRINCIPAL CLAIMANT: No, because in the threats
they warned me exactly about that.
PRESIDING MEMBER: So, you never made a report
to the senior authorities in the bank about the ongoing fraud?
PRINCIPAL CLAIMANT: No, because the top individuals
of the bank, they were involved in this fraud.
PRESIDING MEMBER: You never made a report to the
Attorney General’s office or any of the Ministry of Commerce or anything of
that nature?
PRINCIPAL CLAIMANT: In the first kidnapping I did
not do it, because like I said before, those were the threats. I was threatened
not to go to the police or to talk about that, or to talk about their sexual
preferences.
[…]
PRESIDING MEMBER: Okay. So, you quit the bank?
PRINCIPAL CLAIMANT: Yes.
PRESIDING MEMBER: You never made a report to
anybody.
PRINCIPAL CLAIMANT: I only sent a report to him
because that’s the way I was told to do it when I spoke to the Director of the
division of the bank. However, I did not know that the Director of the division
of Azteca Bank happened to be his lover.
PRESIDING MEMBER: Stop. Listen to my whole
question. You quit the bank. You never made a report to the police about the
suspected fraud. Listen to the whole question. You’ve never complained about
the unwanted sexual advances. You’d been warned in a kidnapping and a beating
to keep your mouth shut.
PRINCIPAL CLAIMANT: Exactly.
[…]
PRESIDING MEMBER: We’re going to talk about Mexico City. So, you’ve been kidnapped in
Mexico City, you’ve been released. Did
you go to the authorities in Mexico
City?
PRINCIPAL CLAIMANT: Yes, I did.
PRESIDING MEMBER: Tell me about that.
PRINCIPAL CLAIMANT: On the third day when I was
kidnapped, three days after the kidnapping I spoke with my brother and my wife
and I decided to go to the police because if I had never spoken out about
anything and in spite of that they kidnapped me again, maybe they [sic]
third time they were going to kill me. Because of that ---
PRESIDING MEMBER: No, I want to know what you
told the police.
PRINCIPAL CLAIMANT: Okay, that’s fine. When I
arrived to the police I made a complete description of all the events regarding
the first kidnapping first and also of the second kidnapping that had just
happened two days before. I was told by the police that they were only going to
focus themselves in the kidnapping that had happened in Mexico City, because
the events that happened in Veracruz, they didn’t have any
jurisdiction.
PRESIDING MEMBER: And that’s what I would expect
would happen. So, I want you to tell me what you told the police that happened
to you in Mexico
City.
PRINCIPAL CLAIMANT: I told them that I had been
kidnapped, that I was severely beaten up, and they referred me to a doctor, a
forensic doctor, and he made a recommendation in my favour telling them that
the injuries and the blows that I suffered happened as a consequence of the
kidnapping and the beatings that I had suffered a couple days earlier.
[41]
In
my opinion, the Board’s finding that the applicant provided inconsistent
testimony regarding reporting the matter to police was unreasonable. From the
above reproduced portions of the hearing transcript, it is obvious that the
principal applicant’s testimony that he did not make a report to police was
regarding the first kidnapping and whether a report was made immediately after
it occurred. This is supported by the fact that later in the hearing, the
principal applicant testifies that he went to the police after the second
kidnapping and made a report concerning both kidnappings. In my opinion, it was
unreasonable for the Board to find that the principal applicant provided
conflicting evidence about whether a report to police was made, and as such,
find that no such report was made. I would allow the judicial review on this
ground.
[42]
Because
of my findings on these issues, I need not deal with the remaining issues.
[43]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
[44]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for re-determination.
JUDGMENT
[45]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for re-determination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA):
|
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.
(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.
|
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.
(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
|
Email this Content