Docket: IMM-4855-16
Citation:
2017 FC 504
Toronto, Ontario, May 16, 2017
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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NERA VALIDZIC
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RINO VALIDZIC
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Applicants
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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]
The present Application concerns an RPD decision
to reject the s.97 claim of two minor children Applicants (the Children) who
are citizens of Croatia and fear risk from a “high-ranking
organized criminal” (the Criminal) in Croatia (Decision, para 5).
[2]
The prime evidence given in the hearing before
the RPD in support of the Children’s claim was that of their father who,
himself, was not a claimant. The father’s evidence was that, in Croatia, he was
convicted of the crime of possession of narcotics and became a jailhouse
informant against the Criminal whom, as a result, is the Children’s risk agent
should they be sent to Croatia. Thus, the Children’s objective risk arises from
their father’s conduct.
[3]
The RPD member made the following findings about
the approach to be taken in determining the Children’s claims, which are
directly challenged by the present Application:
In the Panels’ view, these claims hinge
entirely on the credibility of the father, and the fact that he is a witness
and not a claimant per se changes nothing. The Claimants rely entirely on the
father’s allegations. The father is the only person with direct knowledge of
the events that the claimants rely on. The father is the person who decided
that the Claimants would make refugee claims when they did. Further, the Panel
respectfully disagrees with counsel’s framing of the delay issue. Negative
inferences such as from delay in claiming, are never about “punishing” a
claimant. The Panel must do what is necessary to find out whether the Claimants
and their designated representative have established their allegations on a
balance of probabilities with credible or trustworthy evidence. The mere fact
that the father is not a claimant in these proceedings does not mean that his
credibility, and therefore the credibility of the Claimants’ allegations as he
wrote them, are immune from proper examination (Decision, para 24).
In assessing Mr. Validzic’s evidence, the
Panel has applied the presumption that his sworn allegations are true unless there
is a valid reason to doubt their truth. In short, the Panel treated his
evidence as though he were a refugee claimant. There is no reason to do
otherwise as he is the author of the Claimants’ BOCs and the source of all
their evidence. Were it not for the finding that he is ineligible, he would
have been a party to these proceedings as the principal claimant, and his
evidence would have been tested in the same way (Decision, para 65). [Emphasis
added]
[4]
With respect to the RPD’s position that there is
no reason not to treat the father’s evidence as that of a refugee claimant, I
find that there is a reason: it is manifestly unfair to the Children.
[5]
Counsel for the Children argues that the
decision is unreasonable because negative findings made with respect to the
father’s conduct in Canada, as if he were a claimant, are attributed to the
Children against their interests. Two such findings were made on the issue of
subjective fear. The RPD found that the father’s failure to regularize his
Children’s status in Canada, and the father’s delay in claiming protection due
to his management of his business interests in Canada, is evidence inconsistent
with his alleged subjective fear (Decision, para. 48). In the result,
the findings of the father’s lack of subjective fear were attributed to the
Children resulting in a rejection of their claim for protection.
[6]
As mentioned, the father’s evidence of objective
risk in Croatia was accepted. Not surprisingly, there is no evidence that the
Children themselves do not have subjective fear of the risk in Croatia. In my
opinion, the only finding that the RPD could logically and fairly make is that
objective and subjective fear was in issue in determining the Children’s claim.
[7]
The cardinal error in the decision under review
is that the RPD simply failed to conduct a proper risk analysis with respect to
the Children’s claim. Accordingly, I find the decision is unreasonable.
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