Canada Immigration Case-law Canada, Varon, IMMIGRATION — Refugee status — Requirements by Joy Stephen, Polinsys

Editorial Caselaws 236 Comments

Judgement for this Case: Click here!

IMMIGRATION — Refugee status — Requirements — Well-founded fear of persecution — Presumption of state protection — Refugee claimant was 21-year-old Colombian citizen who alleged fear of persecution by Revolutionary Armed Forces of Colombia (“FARC”) — Claimant alleged that his mother and father had been harassed by FARC since 1997 that his father had been asked to work for FARC, that family had received threatening phone calls, and FARC has attempted to extort money from family — Claimant alleged that in 2011 FARC started referring to him in their phone calls, claiming that they knew where to find him and wanted to recruit him — Claimant’s family made denunciation to Attorney General who sent letter to local police requesting protection for claimant’s family — Protection was provided for one week — Parents sent claimant to Canada four days after denunciation in December 2011 because they were concerned about risk of claimant being kidnapped or recruited by FARC — Board gave little weight to telephone testimony of claimant’s father because he had vested interest in outcome — Board found claimant had not rebutted presumption of state protection and denied claim — Claimant applied for judicial review — Application granted; decision quashed and matter returned for reconsideration by different board member — Only father had direct evidence of what FARC was threatening to do to claimant — It appeared that board discounted direct evidence given under oath so that it did not have to consider whether father could clarify problems it had identified with claimant’s own evidence — This was grossly unfair and entirely unreasonable — Until threats against claimant were appropriately assessed, board could not conduct reasonable state protection analysis, and therefore discounted evidence from father was also relevant to state protection — There was strong evidence before board that state could not protect someone in claimant’s position, but board never engaged with this evidence in any meaningful way and focused upon initiatives which did not support finding of adequate state protection for someone in claimant’s position — Moreover, board never states whether its state protection findings were made on assumption that FARC’s threats against claimant were true or on assumption that threats were not true — Therefore it was not clear extent to which board’s unreasonable negative credibility findings impacted its state protection analysis — For these reasons decision was unreasonable

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