Ottawa, Ontario, February 7, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
GLORIA EMPERATRIZ HERRERA BORJA
ELICIO FIGUEROA FIGUEROA
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Gloria Herrera Borja came to Canada from Ecuador in 1998. Her husband joined her the following year. Ms. Herrera Borja claims to fear returning to Ecuador because members of a group called the Popular Combatants will harm her. The Popular Combatants oppose the activities of the political party of which Ms. Herrera Borja has been a member since 1979.
[2] An immigration officer analyzed the risk that Ms. Herrera Borja would be harmed on her return and concluded that she was not entitled to refugee protection in Canada because her fear was not based on one of the recognized grounds for refugee protection. Further, the officer concluded that she could obtain state protection in Ecuador if she required it. Ms. Herrera Borja argues that the officer made a serious error in analyzing her risk and asks me to order a re-assessment by a different officer. I agree that the officer erred and must, therefore, allow this application for judicial review.
I. Issue
[3] Did the officer err in concluding that the basis for Ms. Herrera Borja's fear was unconnected to any grounds for refugee protection under s. 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)?
II. Analysis
[4] The parties differ on the question whether the appropriate standard of review on the issue before me is "reasonableness" or "patent unreasonableness". I find it unnecessary to decide this question as the officer's decision is reviewable under any standard of judicial oversight.
[5] The officer clearly understood that Ms. Herrera Borja's fear derived from her political activities. In his reasons, the officer stated that Ms. Herrera Borja "fears threats from members of a subversive group who wanted her to abandon her political party and join their ranks and subsequently beat her". However, elsewhere in his reasons, the officer concluded that she had "not established a link between her fear of persecution in Ecuador and any of the grounds set out in s. 96 of the Immigration and Refugee Protection Act".
[6] The officer found that Ms. Herrera Borja did not come within the definition of a person meriting refugee protection. However, s. 96 of IRPA (see Annex) includes political persecution as one of the grounds for refugee protection and Ms. Herrera Borja's claim clearly was based on her political affiliation. I see no basis for the officer's conclusion that Ms. Herrera Borja's fear was unconnected to any recognized grounds for refugee protection.
[7] The respondent argued that the officer's error should be immunized by his alternative conclusion - namely, that Ms. Herrera Borja could obtain state protection in Ecuador. In the circumstances, given that the officer failed to appreciate the essence of Ms. Herrera Borja's claim, I am not satisfied that his conclusion on state protection took account of her particular situation. In many cases, of course, a conclusion on the availability of state protection is an independent basis for upholding a decision on refugee protection. However, that is not the case where, as here, there is a genuine concern that an error elsewhere in the decision-maker's analysis may have affected the conclusion on state protection.
[8] Accordingly, I must allow this application for judicial review and order a new risk assessment by a different officer. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is granted and a new risk assessment conducted by a different officer is ordered;
2. No question of general importance is stated.
Annex
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
Convention refugee 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. |
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
Définition de « réfugié » 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. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1067-05
STYLE OF CAUSE: GLORIA EMPERATRIZ HERRERA BORJA, ET AL v. MCI
PLACE OF HEARING: Toronto, ON.
DATE OF HEARING: January 12, 2006
REASONS FOR JUDGMENT
APPEARANCES:
D. Clifford Luyt FOR THE APPLICANT
Anshumala Juyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR THE APPLICANT Toronto, ON
tOTTT
Toronto, ON FOR THE RESPONDENT