Law Times

Page 14 No reason for applicant to suspect concerns he was implicated in commission of war crimes Application for judicial review of decision of immigration officer denying application for permanent resident visa, finding there to be reasonable grounds to believe that applicant was inadmissible under s. 35(1)(a) of Immigration and Refugee Protection Act (Can.). Applicant was citizen of what is now Bosnia-Herzegovina who was conscripted into Army of Republic of Bosnia and Herzegovina at age 18 where he served for nine months. Applicant's wife, who was Canadian citizen, sought to sponsor applicant for landing in Canada as member of Family Class. In denying application officer found that there were reasonable grounds to believe that applicant was complicit in atrocities committed by Third Corps of Bosnian Army in Ozren Mountains during September 1995. Applicant contended that he was denied procedural fairness in that he was not provided with substance of officer's suspicions nor with salient facts contained in two documents before officer, which officer considered in making his decision. Applicant further contended that officer's conclusion was perverse because there was no evidence before officer from which he could reasonably have concluded that applicant was complicit in war crime or crime against humanity, given applicant's low rank of private, fact he was conscripted, his lack of knowledge of atrocities in question and lack of evidence of applicant having undertaken any tasks while in Bosnian Army, with exception of training and standing guard at Army barracks 40 kilometres away from where atrocities occurred. Application granted. Applicant was denied procedural fairness. There was no reason for applicant to suspect there were concerns he was implicated in commission of war crimes against prisoners of war in Ozern Mountains in September 1995. Considering applicant's profile, there was no reason that line of questioning at interviews, series of factual questions about events that were devoid of any context and essentially asked applicant if he was at certain places at certain times, should have alerted applicant to fact that he was suspected of being linked to specific war crimes in question. Applicant was not sufficiently given notice of substance of allegations against him, and accordingly there was violation of procedural fairness. Lukavica v. Canada (Minister of Citizenship and Immigration) (Feb. 1, 2013, F.C., Mary J.L. Gleason J., File No. IMM-103612) 224 A.C.W.S. (3d) 738. PERSON IN NEED OF PROTECTION Not reasonable to conclude amnesty program effective Applicant received positive pre-removal risk assessment May 13, 2013 Law Times • CASELAW ("PRRA"). Minister reviewed circumstances in country of origin and determined evidence of risk through redistribution found in positive PRRA was deemed insufficient to conclude such redistribution continued to take place. Minster found there was insufficient evidence to conclude applicant was at risk in specified area. Application for judicial review was allowed. Minister failed to consider effectiveness or durability of amnesty program which was significant in country where minister recognized lawlessness was rampant. It was not reasonable to conclude that amnesty program was effective and durable even if Minister had turned mind to proper legal test. Mohammad v. Canada (Minister of Public Safety and Emergency Preparedness) (Jan. 10, 2013, F.C., Michael L. Phelan J., File No. IMM-3224-12) 224 A.C.W.S. (3d) 742. REFUGEE STATUS Board did not take into account applicant not being randomly targeted Application for judicial review of denial of refugee claim. Applicant was citizen of Kenya in Nyanza Province, who claimed refugee protection based on fear of Sungu Sungu vigilante group. Applicant, who operated micro lending business, contacted police when one of his debtors had not repaid loan. Debtor, who was member of Sungu Sangu group, was charged, then released on bail, but subsequently fell ill and died. Sungu Sungu group came to applicant's home, set fire to it, and murdered police officer who came to scene. They found applicant at police station, where they threw stones and objects injuring his wife and children. Sungu Sungu group also went to applicant's shop and set fire to it. Applicant fled to his parents' home in Nairobi, where he remained for four months. While he was there, his mother received call from Sungu Sungu group indicating that group knew where applicant was and that they were looking for him. Due to his fear of the Sungu Sungu group, applicant came to Canada on temporary resident visa and claimed refugee protection two days after his arrival. Board found applicant credible but found applicant's fear did not have nexus to Convention ground as Sungu Sungu group was criminal organization and applicant's allegations did not show nexus to real or perceived political opinion. Board concluded that even if threat from Sungu Sungu group was not generalized, applicant had Internal Flight Alternative ("IFA") in Mombasa. Application granted. Board failed to consider applicant's particular situation. Board did not take into account that applicant was not being randomly and indiscriminately targeted, but Sungu Sungu group had sought him out specifically in order to avenge death of one of their members, as they at- tributed responsibility for their associate's death on to applicant. Board erred by failing to consider whether this risk faced by applicant was different from general risk created by criminal activity of Sungu Sungu group. With respect to IFA, it was unreasonable for board to conclude that Sungu Sungu group's reach did not extend beyond Nyanza Province and that there was no serious possibility Sungu Sungu group could find and target him in Mombasa. Zablon v. Canada (Minister of Citizenship and Immigration) (Jan. 23, 2013, F.C., Michael D. Manson J., File No. IMM-486012) 224 A.C.W.S. (3d) 751. Board should have given weight to document evidence supporting claim Application for judicial review of denial of refugee claim. Applicant was citizen of China and Falun Gong practitioner who claimed refugee protection based on fear of religious persecution in China. Applicant joined group practising Falun Gong in China, but did not have any exposure to its underlying philosophy. On arrival in Canada, applicant tried to learn more about philosophy of Falun Gong, but he had trouble understanding lectures. Board found that applicant was able to perform most aspects of five exercises of Falun Gong, but examined applicant's knowledge of Falun Gong and determined that his understanding was somewhat rudimentary, not sufficient to show that he was true believer. Because it did not accept that applicant was genuine practitioner, board placed no weight on his supporting documents which purported to show that board had issued summons for him and confiscated some of his property. It also gave no weight to document showing he had visited fellow Falun Gong practitioner in prison. Board concluded that applicant's knowledge and understanding of Falun Gong could have been acquired in Canada to support fraudulent refugee claim. Accordingly, it gave no weight to photographs showing applicant practising Falun Gong in Toronto. Application allowed. Board's doubts, even if reasonable, should not have led it to give no weight to documentary evidence that supported applicant's claim. Claimant whose knowledge is flawed or even recently acquired may still be sincere, and person may have well-founded fear of persecution if removed from Canada. Board's conclusion that applicant was not genuine Falun Gong practitioner was unreasonable. Board unreasonably discounted evidence supporting applicant's claim to fear PSB in China based on his involvement in Falun Gong group. Accordingly, board's decision was unreasonable. Su v. Canada (Minister of Citizenship and Immigration) (Jan. 4, 2013, F.C., James W. O'Reilly www.lawtimesnews.com J., File No. IMM-2826-12) 224 A.C.W.S. (3d) 749. Not clear whether underlying document properly considered Application for judicial review of denial of refugee claim. Applicant was citizen of Hungary who alleged fear of persecution based on his Roma ethnicity. Applicant alleged had been subjected to verbal and physical assaults and denied work because of his ethnicity. After attack in 2007, applicant sought help of police who responded by using racial slur and physically removing applicant from police station. After 2007 attack, applicant and his wife moved to Budapest, however in March 2010, applicant's wife was assaulted and suffered neck injury. As result of this incident, applicant left Hungary and came to Canada claiming refugee protection. Board found that applicant had not made concerted effort to seek protection, as he had not reported 1991, 2005, 2009 or 2010 incidents to police and did not further pursue his complaint regarding 2007 incident after help was denied at police substation. Board found that documentary evidence indicated that Hungary was making best efforts to offer state protection when requested and it had made significant improvements. Applicant contended that UN Rapporteur's report indicated that racial violence had worsened, and that Amnesty International report indicated that Hungarian police response failed to properly label hate crimes as such, instead referring to them as common crimes. Application granted. It was not clear from board's reasons or record why UN Rapporteur's findings that violence had gotten worse was rejected in favour of determination that conditions had improved. Fact that board referred to increase in violence as submission of applicant's counsel, instead of originating in UN Rapporteur's report, compounded this lack of transparency, as it was not clear whether underlying document was properly considered. These omissions rendered board's decision on state protection unreasonable. Horvath v. Canada (Minister of Citizenship and Immigration) (Jan. 30, 2013, F.C., John A. O'Keefe J., File No. IMM-880011) 224 A.C.W.S. (3d) 750. SELECTION AND ADMISSION Undue consideration given to sponsorship application refusal Application for judicial review of decision of Immigration Officer refusing applicant's request based on humanitarian and compassionate ("H&C") considerations to be exempt from requirements for family sponsorship under Immigration and Refugee Protection Act (Can.). Applicant was citizen of Nigeria who came to Canada as refugee from Ghana in 2005, and was now permanent resident. When applicant was granted refugee status in Canada in 2005, he did not declare any family members. Applicant filed sponsorship application with H&C considerations for his wife and children who lived in Ghana which was refused on October 7, 2010. Officer expressly stated in letter that he considered applicant's claim under s. 25 of Act. However, in CAIPS notes as well as in letter, it was apparent that applicant's misrepresentation about family members was given substantial weight in officer's analysis. Officer concluded that with regard to possibilities of family reunification, reasonable alternatives to H&C consideration were available, however, officer did not provide detailed information as to nature of those reasonable alternatives, why such alternatives would be adequate in circumstances or what would be potential impacts of such alternatives on family reunification. Applicant contended that decision rendered was unreasonable as officer was unduly focused on applicant's previous nondisclosure of dependant family members and he did not make fair assessment of guiding factors for H&C grounds applications, including children's best interest. Application granted. If fact that several reasonable alternatives were available to applicant and his family warranted refusal of his H&C application, officer was under obligation to comment on those alternatives. Reading of CAIPS notes and letter addressed to applicant's wife indicated that main focus of decision was initial misrepresentation that occurred. Officer specified that significant weight was given to policy objective of preserving integrity of immigration system and that he considered applicant's failure to provide adequate reasons to justify his misrepresentation to be factor assigned significant weight. Officer's decision was not reasonable as undue consideration was given to applicant's sponsorship application refusal under s. 117(9) (d) of Immigration and Refugee Protection Regulations (Can.). Aggrey v. Canada (Minister of Citizenship and Immigration) (Dec. 6, 2012, F.C., Simon Noël J., File No. IMM-1114-12) 224 A.C.W.S. (3d) 762. Interests of child not well identified or defined by officer Application for judicial review of decision by officer refusing applicant's application for permanent residence made from within Canada. Applicants were citizens of Guyana. In 2007, principal applicant's ("PA") husband, who was minor applicant's father, died unexpectedly and in 2008, applicants arrived in Canada on visitors' visas. PA's mother, two brothers, and three sisters all resided in Canada and were all Canadian citizens. PA's siblings supported her and her son financially and applicants resided with one of PA's sisters and

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