Canada (Citizenship and Immigration) v. Huntley

Canada (Citizenship and Immigration) v. Huntley
Court (s) Database
Federal Court Decisions
Date
2010-11-24
Neutral citation
2010 FC 1175
File numbers
IMM-4423-09
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20101124
Docket: IMM-4423-09
Citation: 2010 FC 1175
Ottawa, Ontario, November 24, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
and
BRANDON CARL HUNTLEY
Respondent
TABLE OF CONTENTS
TABLE OF CONTENTS. 2
REASONS FOR JUDGMENT AND JUDGMENT.. 4
BACKGROUND.. 4
DECISION UNDER REVIEW... 5
ISSUES. 11
STATUTORY PROVISIONS. 12
STANDARD OF REVIEW... 19
ARGUMENTS. 21
The Applicant 21
Preliminary issues. 21
Affidavits. 21
No abuse of process. 22
Errors in the Decision. 23
State Protection. 24
Assessment of evidence was unreasonable. 26
No evidence of genocide. 27
Affirmative action policies. 28
Focus on white farmers is unreasonable. 29
IFA finding is perverse. 29
Selective use of objective documentary evidence. 30
Random acts of violence are not persecution. 30
Absence of subjective fear. 31
Delay. 32
The Respondent 33
Abuse of process. 33
Re-weighing evidence. 34
State protection. 35
Factual findings. 35
Persecution. 36
Subjective fear. 36
Costs. 37
ANALYSIS. 37
General 37
The Respondent’s Oral Evidence. 40
Examination by Mr. Kaplan. 46
Objective Evidence of Racial Motivation. 49
Subjective Fear. 56
Reasons for Coming to Canada. 58
Failure to Report to the Police. 62
Delay in Making a Refugee Claim.. 69
Conclusions about the Respondent’s Personal Evidence. 71
The Evidence of Ms. Lara Kaplan. 71
Ms. Kaplan’s Personal Experiences. 76
Ms. Kaplan’s Account of Third Party Attacks. 79
Ms. Kaplan’s General Views. 82
The Documentary Evidence. 85
National Documentation Package. 93
The RPD’s Findings. 98
Conclusions on Merits. 105
External Considerations. 107
The Evidence of Interference. 108
The Affidavit of Ms. Stefanie Gude. 108
The Affidavit of Ms. Amina Sherazee. 113
The Jurisprudence. 119
The Remedy. 125
Certification. 126
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD), dated August 27, 2009 (Decision), which granted the Respondent status as a Convention refugee pursuant to section 96 of the Act.
BACKGROUND
[2] The Respondent, Brandon Carl Huntley, is a white, male citizen of the Republic of South Africa (South Africa). He claimed refugee status on the basis of fear of discrimination, harassment and possible death because of his race. The Respondent reports having been attacked and assaulted by black South Africans on numerous occasions. His attackers used racial slurs.
[3] The Respondent first came to Canada on a work permit in 2004 to work as an amusement park attendant. He then returned to South Africa in November 2004 upon the expiration of his first work permit. The Respondent returned to Canada on another work permit in June 2005. That permit expired in December 2006.
[4] The Respondent remained in Canada illegally upon the expiration of his second work permit. He married Melani Crête, a Canadian citizen, in August 2007. He then applied for refugee status in April 2008. The Respondent’s application was allowed. However, the Minister of Citizenship and Immigration (Applicant or Minister) now seeks to quash the Decision.
[5] The Respondent brought a motion on March 31, 2010 requesting that this matter be converted from an application to an action, or that the Minister be ordered to forward to the Respondent his reasons for commencing judicial review. Justice Yvon Pinard heard the Respondent’s motion and issued an order on April 16, 2010 dismissing it.
DECISION UNDER REVIEW
[6] The RPD determined that the Respondent was a credible witness and accepted his evidence with regard to the attacks he had suffered. Moreover, the RPD determined that the Respondent’s allegations of persecution of white South Africans were enhanced by the oral testimony of Ms. Lara Anne Kaplan, who is also a citizen of South Africa.
[7] Ms. Kaplan stated that “things started to shift to the disadvantage of the white South Africans” after Nelson Mandela’s release from prison and his election as president. She said that part of the shift included an attempt to “get the formally (sic) underprivileged African-South Africans to move into the business world and start earning better money.” This was known as Black Economic Empowerment (BEE). Moreover, Ms. Kaplan suggested that affirmative action in South Africa involves the use of different standards in order to allow black South Africans to attain positions of influence and power. According to the RPD Member, “[a]t the time, [the witness] was at the top of the corporate ladder. But some 12-13 years into her career, she noticed she was not receiving any further promotions and that ‘a lot of black people were coming in to take our place.’”
[8] Ms. Kaplan also noted two incidents in which she was accosted by black South Africans and threatened with a gun.
[9] The RPD noted Ms. Kaplan’s belief that “[black South Africans] believe that all whites are equally responsible for apartheid and that ‘we should be eradicated and stomped on like an ant.’” She described the current situation in South Africa as being a “reverse apartheid”, and claimed that all whites feel the hatred of black South Africans towards them.
[10] Ms. Kaplan alleged that the police in South Africa, who are themselves mainly Black South African, do not act upon crimes that black South Africans commit against white South Africans. It was the witness’s view that this occurs because the police are “corrupt” and “in cahoots with the criminals.” According to Ms. Kaplan, the police do not want to help white South Africans who are attacked. Because you are white, “you deserve it. [I]t’s long overdue.”
[11] Ms. Kaplan then described what happened to Robert Kaplan, one of her brothers. While Robert’s son was asleep in the house, four black South African men broke into his house, apparently intending to harm his child. Robert pleaded with them not to harm his son and told them they could do what they wanted to him instead. Robert was then tied up, tortured, stabbed nine times, shot three times in the chest, burned with a hot iron and “left for dead.” Robert survived this ordeal, although he required open-heart surgery and long-term intensive care.
[12] This incident was well-documented on the television and radio and in the newspapers. Ms. Kaplan stated her belief that the attack on Robert occurred because her brother was both white and wealthy. The RPD described the telling of this incident by Ms. Kaplan as follows:
During the course of [the witness’] testimony, she broke down and cried openly. That was to be expected. What I did not expect was to see counsel, Russell Kaplan, also break down and cry while she was describing the torture of her brother. It turns out that counsel, Mr. Kaplan, is also a brother of the witness and Robert’s brother. He was also born in South Africa and came to Canada some years ago as an immigrant. I gather from what I took out of the evidence that he left South Africa for the same reasons as his sister; namely, the reverse apartheid attitude which prevails in that country.
[13] The RPD then considered the documentary evidence presented, including Daily Sun article by Africa Ka Mahamba entitled “‘Taking from whites is not a crime in SA,’” which reported that a leader of a Pretoria-based youth organization had condoned stealing from white people in the suburbs because “[t]he whites have stolen from us since 6 April 1652” and [t]aking from whites is not a crime because you repossess what belongs to you.”
[14] Ms. Kaplan also provided the RPD with accounts of incidents about other people who had experienced psychological and physical damage as a result of attacks by black South Africans.
[15] One incident involved a woman’s friend who, according to that woman, was shot to death for no reason “by scum-of-the-earth robbers” while waiting for his son to finish soccer training at a park. According to her, some black South African men were trying to rob a second woman of her cellular phone and, as they ran past, they shot the first woman’s male friend in the neck. The RPD noted that Ms. Kaplan “has no doubt that he was shot simply because the victim was white and the black killers knew they would get away with it, scot free.” In the words of the RPD, Ms. Kaplan opined that, “in any other country, a mass genocide … on such a scale as is occurring against whites in South Africa would be considered genocide and crimes against humanity.”
[16] The RPD then considered Ms. Kaplan’s upbringing in a well-educated family. It noted: “[L]ittle did [the Kaplan family] expect that when Nelson Mandela came into power, that the government policies would shift to the extent that African South Africans were to become the masters and the white South Africans the servants, with all of its intended consequences.”
[17] The RPD stated in its Decision that the “witness’s evidence was the lifeline for the claimant’s claim”, and that she brought to the hearing a “vivid and detailed account” of what is occurring in South Africa with regard to white South Africans, as well as the indifference of the mainly black South African police force and its failure to protect them.
[18] The RPD then considered the Respondent’s personal circumstances and noted that he had not sought refugee protection at the first opportunity. The RPD accepted that, on his first trip to Canada, the Respondent did not seek refugee status because he was not aware of the refugee system. Furthermore, on his second trip to Canada, the Respondent did not claim refugee status because he erroneously believed he was precluded from doing so because he does not speak French.
[19] The RPD noted that the Respondent had tried to join the Canadian Armed Forces to avoid returning to South Africa. The RPD also noted that “[h]e met his wife to be and fell in love with her. He married her believing that he could use her to help him get permanent status in Canada. He was to find out later that ‘she was not a nice woman.’” Consequently, he separated from her in or around December 2008.
[20] Although the RPD observed that a delay in making a refugee claim may affect the credibility of the claim, it found that, upon the expiration of the Respondent’s work visa, he made attempts to solidify his stay in Canada by attempting to join the Armed Forces and by marrying a Canadian citizen. Accordingly, the RPD determined that the Respondent’s “subjective fear of persecution remained constant and consistent up to and including the time he made his refugee claim.”
[21] The RPD then considered country conditions in South Africa. It noted reports of serious human rights problems, including use of excessive force by the police, vigilante and mob violence and violence resulting from social, racial and ethnic tensions. The RPD noted the killings and violent crimes against white farmers and their families, which continue in rural areas.
[22] The RPD then considered some of the “reports” contained in the Respondent’s Index of Documents, including such articles as M. Riordan-Bull Kleinmond’s “Attacks have shown most of ANC to be racists” Cape Argus ( 31 May 2008) and David Bullard’s “Loss of freedom creeps up on us like a face of wrinkles” Sunday Times (21 October 2007).
[23] The RPD went on to consider in more detail the murder of almost 2000 white farmers in South Africa, many of whom had also been brutally tortured. The RPD noted that “[s]ome victims have been burned with smoothing irons or had boiling water poured down their throats” and that “[t]his type of torture is consistent with the torture received by the witness’ brother Robert.” Pictorial evidence of some of these murders was included in the evidence before the RPD.
[24] The RPD found the following facts were proven on the evidence before it:
a. That the Respondent was attacked by black South Africans on “at least six or seven occasions because of his white skin”;
b. That the Respondent “has scars on various parts of his body”;
c. That Ms. Kaplan was attacked and threatened with guns by black South Africans “on two separate occasions because of the colour of her skin and perceived wealth”;
d. That Ms. Kaplan’s brother Robert, “who was tortured and shot by African South Africans and miraculously lived, now has major physical and psychological problems”;
e. That Ms. Kaplan’s brother Robert and her father “survived only because of their wealth, being able to install electronic and guard protection for themselves both inside and outside their homes.”
[25] The RPD also found that the evidence before it demonstrated the “indifference and inability or unwillingness of the government and the security forces to protect White South Africans from persecution by African South Africans.” The RPD determined that the Respondent had presented “‘clear and convincing proof’ of the state’s inability or unwillingness to protect him.” Furthermore, the RPD held that “the claimant was a victim because of his race (white South African) rather than a victim of criminality and that he has established a link between his fear of persecution and one of the five grounds in the Convention definition.”
[26] Moreover, the RPD determined that no viable Internal Flight Alternative (IFA) existed for the Respondent in any part of South Africa. It relied on the Europa World Yearbook 2008 in finding that black South Africans make up about 80% of the population, while white Europeans make up 9% of the population. Accordingly, the RPD found that the claimant would “stand out like a ‘sore thumb’ due to his colour in any part of the country.”
[27] The RPD determined that the Respondent’s fear of persecution by black South Africans was justified based on the objective evidence before it. Having considered the evidence and submissions of counsel, the RPD determined that the Respondent had satisfied his burden of establishing a serious possibility of persecution on the Convention ground of race.
ISSUES
[28] The issues on this application can be summarized as follows:
1. Whether the RPD erred in finding that the Respondent had sufficiently rebutted the presumption of state protection;
2. Whether the RPD erred in its assessment of the evidence;
3. Whether the violence and criminality experienced by the Respondent constitutes persecution;
4. Whether the RPD erred in its assessment of the Respondent’s lack of subjective fear of persecution;
5. Whether the Minister’s application for judicial review constitutes an abuse of process and breaches the Respondent’s rights under the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter).
STATUTORY PROVISIONS
[29] The following provisions of the Act are applicable in these proceedings:
72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.
Application
(2) The following provisions govern an application under subsection (1):
[…]
(d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; ….
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.
72. (1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision, ordonnance, question ou affaire — prise dans le cadre de la présente loi est subordonné au dépôt d’une demande d’autorisation.
Application
(2) Les dispositions suivantes s’appliquent à la demande d’autorisation :
[…]
d) il est statué sur la demande à bref délai et selon la procédure sommaire et, sauf autorisation d’un juge de la Cour, sans comparution en personne; ….
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.
[30] The following provision of the Federal Courts Act, R.S.C. 1985, c. F-7 is applicable in these proceedings:
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
Extraordinary remedies, members of Canadian Forces
(2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.
Remedies to be obtained on application
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
Application for judicial review
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
Time limitation
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
Powers of Federal Court
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
Grounds of review
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Defect in form or technical irregularity
(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate.
18. (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour :
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral.
Recours extraordinaires : Forces canadiennes
(2) Elle a compétence exclusive, en première instance, dans le cas des demandes suivantes visant un membre des Forces canadiennes en poste à l’étranger : bref d’habeas corpus ad subjiciendum, de certiorari, de prohibition ou de mandamus.
Exercice des recours
(3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d’une demande de contrôle judiciaire.
Demande de contrôle judiciaire
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande.
Délai de présentation
(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l’office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu’un juge de la Cour fédérale peut, avant ou après l’expiration de ces trente jours, fixer ou accorder.
Pouvoirs de la Cour fédérale
(3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut :
a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
Motifs
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas :
a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
Vice de forme
(5) La Cour fédérale peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu’en l’occurrence le vice n’entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l’ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu’elle estime indiquées.
[31] The following provision of the Federal Courts Rules, SOR/98-106 is also applicable in these proceedings:
Content of affidavits
81. (1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for summary judgment or summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included.
Contenu
81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une requête – autre qu’une requête en jugement sommaire ou en procès sommaire – auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
[32] The following provision of the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 is also applicable in these proceedings:
12. (1) Affidavits filed in connection with an application for leave shall be confined to such evidence as the deponent could give if testifying as a witness before the Court.
(2) Unless a judge for special reasons so orders, no cross-examination of a deponent on an affidavit filed in connection with an application is permitted before leave to commence an application for judicial review is granted.
12. (1) Tout affidavit déposé à l’occasion de la demande d’autorisation est limité au témoignage que son auteur pourrait donner s’il comparaissait comme témoin devant la Cour.
(2) Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, le contre-interrogatoire de l’auteur de l’affidavit déposé à l’occasion de la demande n’est pas permis avant que la demande de contrôle judiciaire soit accueillie.
[33] The following provision of the Charter is also applicable in these proceedings:
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Vie, liberté et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
STANDARD OF REVIEW
[34] The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis. In the case at hand, the appropriate standard of review for each issue has been addressed by judicial precedent.
[35] A standard of reasonableness is appropriate when determining whether the RPD erred in finding that the Respondent had sufficiently rebutted the presumption of state protection. See Song v. Canada (Minister of Citizenship and Immigration), 2008 FC 467, [2008] F.C.J. No. 591 at paragraph 6.
[36] The RPD’s assessment of the evidence and its factual findings are owed considerable deference and are reviewable on a standard of reasonableness. See Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, 212 D.L.R. (4th) 139 at paragraph 11; and Dunsmuir, above, at paragraph 51.
[37] Reasonableness is also the appropriate standard of review when determining whether the RPD erred in its assessment of the Respondent’s subjective fear. See Cornejo v. Canada (Minister of Citizenship and Immigration), 2010 FC 261, [2010] F.C.J. No. 295 at paragraph 17.
[38] The RPD’s determination of whether the violence and criminality experienced by the Respondent constitutes persecution is an issue of mixed fact and law. Accordingly, it will be reviewed on a standard of reasonableness. See Liang v Canada (Minister of Citizenship and Immigration), 2008 FC 450, [2008] F.C.J. No. 572 at paragraph 15.
[39] When reviewing a decision on the standard of reasonableness, the analysis is concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, above, at paragraph 47. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[40] As regards the Respondent’s allegation that this application for judicial review constitutes an abuse of process and a breach of the Respondent’s Charter rights, the appropriate standard of review is one of correctness. See, for example, Blake v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 572, [2009] 1 F.C.R. 179; and Smith v. Canada (Chief of Defence Staff), 2010 FC 321, [2010] F.C.J. No. 371.
ARGUMENTS
The Applicant
Preliminary issues
Affidavits
[41] The Applicant submits that the two affidavits sworn in support of the Respondent’s position should be struck since they address matters that are not within the knowledge of the affiants and/or are irrelevant.
[42] The Applicant contends that the affidavit of Ms. Stefanie Gude is irrelevant. This affidavit refers to various reactions to the RPD’s Decision that occurred after the Decision was made and that do not affect the errors made by the RPD. Moreover, the affiant expresses opinions and makes assertions that are not within her knowledge. This is contrary to Rule 81 of the Federal Courts Rules and Rule 12(1) of the Federal Courts Immigration and Refugee Protection Rules.
[43] Similarly, the affidavit of Ms. Amina Sherazee is irrelevant and argumentative; it is simply based on her opinions and fails to show that she has any personal knowledge of the matters to which she deposes. The Applicant submits that Ms. Sherazee speculates about the Minister’s motives for applying for leave and judicial review of the RPD’s Decision. However, there is no evidence that she has been privy to any discussions that may have led the Minister to seek leave and review. As such, she has no personal knowledge of this matter. Further, Ms. Sherazee’s affidavit attempts to draw legal conclusions and casts aspersions on the Court.
[44] The Court determined in Ly v. Canada (Minister of Citizenship and Immigration), 2003 FC 1184, [2003] F.C.J. No. 1496 (Ly) at paragraph 10 that
[e]xcept on motions, affidavits shall be confined to facts within the personal knowledge of the deponent: Rule 81(1), Federal Court Rules, 1998. The affidavit must be free from argumentative materials and the deponent must not interpret evidence previously considered by a tribunal or draw legal conclusions… If an affidavit does not meet these requirements, the application can only succeed if an error is apparent on the face of the record (citations omitted).
[45] The Applicant says that the affidavits put forward by the Respondent do not meet the requirements for affidavits as set out by the Court in Ly, above. As such, the Applicant submits that they should be either struck from the record or completely ignored.
No abuse of process
[46] There is no merit to the Respondent’s contention that the Minister’s application for judicial review constitutes an abuse of process. The Respondent is attempting to argue that the Minister should be precluded from seeking judicial review of a decision that the Minister considers unreasonable and flawed. Furthermore, the Respondent alleges that the Court should be deprived of jurisdiction to hear the application. This ignores the independence of the Court, as well as its ability to make its own decisions.
[47] The Respondent’s allegation that the Minister’s application for judicial review is the result of political pressure is unfounded. It is open to the South African government to protest a finding that it is presiding over the genocide of white South Africans or that all black South African citizens want white citizens eradicated. The Minister’s decision to seek leave and judicial review, however, is based on the legal and factual errors in the RPD’s Decision.
[48] Because the Minister’s application discloses serious issues, the rule of law dictates that the Minister – like all litigants before the Court – be given a chance to be heard. Apart from his baseless speculation, the Respondent has not shown that there has been any abuse of process or that the Minister’s application lacks merit and should not be entertained by this Court.
Errors in the Decision
[49] The Applicant submits that the RPD erred by:
a. Finding that the Respondent had rebutted the presumption of state protection;
b. Ignoring evidence that was crucial to the determination at hand;
c. Equating random acts of violence and criminality with persecution due to the Respondent’s race;
d. Failing to assess properly the Respondent’s subjective fear in light of his delay in making a claim for refugee status.
State Protection
[50] The onus was on the Respondent in this instance to provide clear and convincing evidence that the government of South Africa is unable or unwilling to protect him. However, in the RPD’s reasons, there is no reference to, or consideration of, the Respondent’s burden in this regard.
[51] The Respondent admits that he never reported any of the alleged attacks to the authorities. While the RPD acknowledged that the Respondent did not seek state protection, it failed to consider properly the impact of the Respondent’s failure to seek protection on his onus to rebut the presumption of state protection.
[52] Moreover, the Respondent’s claim that he did not report any of the alleged attacks because in other instances such reports “got lost in the system” is unsupported by evidence. The Applicant submits that the RPD erred in simply accepting that the majority of police in South Africa are black and are not interested in protecting whites. Indeed, this finding is flawed for a number of reasons.
[53] First, the two initial attacks faced by the Respondent occurred in 1991 and 1992 when apartheid was still occurring in South Africa. As such, the police and other security services were controlled by the apartheid state whose main goal was to protect the privileged position of the white minority and suppress the black majority of the population. There was no evidence before the RPD on which it could reasonably conclude that the police powers in South Africa at this time would not have been interested in protecting a white person who had allegedly been assaulted by black people. Consequently, the Respondent’s failure to report the first attacks on him in 1991 and 1992 should have been considered by the RPD in its analysis of state protection.
[54] Moreover, the Respondent’s contention that the South African police are not interested in protecting whites does not withstand scrutiny, since the Respondent stated that his family had reported a robbery in 2005. According to the Respondent’s testimony, the police both responded to and investigated this complaint. The failure to lay charges is not evidence of a lack of state protection. As noted in Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3, [2000] F.C.J. No. 507 (T.D.), “[a]ll policing activity is bound to encounter failures, particularly in a democratic state. Even in Canada, random acts of vandalism or violence seldom yield convictions” (paragraph 19).
[55] The complaint of the Respondent’s own family to the police and the ensuing investigation undermine the Respondent’s claim – and the RPD’s finding – that the South African police are not concerned with the protection of white South Africans. Despite the fact that the police were responsive when his family sought police protection, the Respondent failed to report any of the attacks he faced. The Applicant submits that this failure is inconsistent with the Respondent’s onus as set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1.
[56] Furthermore, the RPD’s Decision seems to suggest that if a claimant is not the same ethnicity as the members of the law enforcement service then the duty to seek state protection is relaxed or lessened, even where no credible evidence of the state’s inability or unwillingness to protect has been shown. According to the Applicant, this view is unsupported by international law or Canadian jurisprudence; it rests largely on the Board’s flawed assessment of the country conditions.
Assessment of evidence was unreasonable
[57] The RPD noted in its Decision that the Respondent’s claim was enhanced and supported by the oral testimony of a witness whose evidence was “the lifeline for the claimant’s claim.” It can be inferred that the RPD found Ms. Kaplan to be credible and accepted her evidence as true. Within her testimony, Ms. Kaplan made many assertions which the RPD must be taken to have accepted. These assertions include the following:
a. That the South African police, who are mainly black, are “corrupt” and “in cahoots with the criminals” who attack whites;
b. That Black South Africans have a hatred and a vendetta against the white South Africans” due to the injustices of the apartheid regime and that all whites feel this hatred;
c. That all blacks in South Africa hold all whites equally responsible for apartheid and want whites eradicated and stomped on like ants;
d. That a mass genocide of white South Africans by the black majority is occurring in South Africa.
The Applicant submits that the RPD’s acceptance of these assertions, which have no objective evidentiary foundation, epitomizes the unreasonableness of the Decision.
No evidence supporting witness’s opinions
[58] No evidence exists to support Ms. Kaplan’s statements with regard to the general attitude of black South Africans towards white South Africans. The RPD failed to critically analyze the witness’s statements. As such, the RPD seems to have taken the witness’s statements as reflective of the feelings and beliefs of all black South Africans.
[59] The country condition evidence before the RPD fails to support Ms. Kaplan’s statements. According to the Minister,
[i]n neither the country condition documents from credible and trustworthy sources such as Amnesty International, Human Rights Watch, US State Department nor the newspaper articles submitted on the Respondent’s behalf is there any mention of a general animus among all blacks towards whites and a desire to have whites “eradicated and stomped on like ants” [original emphasis].
[60] By characterizing Ms. Kaplan’s evidence as the “lifeline” for the Respondent’s claim, the RPD gives the impression that it accepted the witness’s unsubstantiated assertions and based its Decision on those assertions. The Applicant submits that this is both unreasonable and perverse.
No evidence of genocide
[61] The RPD erred further in failing to address Ms. Kaplan’s assertion that the black majority in South Africa is perpetrating genocide against white South Africans. Because the witness’s testimony was the “lifeline” for the Respondent’s claim, the RPD’s failure to comment on this assertion must be taken as acceptance of the witness’s evidence of an ongoing genocide against whites in South Africa.
[62] Had the RPD adequately consulted the documentary evidence, it would have realized that Ms. Kaplan’s evidence was unsupported. Although the evidence shows the emigration of many white professionals from South Africa in recent years, it also shows considerable movement of foreign nationals (such as British citizens) to South Africa. Although some of these ci