Huntley v. Canada (Citizenship and Immigration)

Huntley v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2014-06-17
Neutral citation
2014 FC 573
File numbers
IMM-2887-13
Decision Content
Date: 20140617
Docket: IMM-2887-13
Citation: 2014 FC 573
Ottawa, Ontario, June 17, 2014
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
BRANDON CARL HUNTLEY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
Overview [1] Mr Huntley is a white citizen of South Africa who first came to Canada on a temporary work permit in 2004. He sought refugee protection in 2008, alleging persecution due to his race and political opinion. The Immigration and Refugee Board (the Board) granted refugee status to Mr Huntley in 2009. Upon judicial review, in Canada (Minister of Citizenship and Immigration) v Huntley, 2010 FC 1175, (Huntley #1), Justice Russell found the decision of the Board to be unreasonable, set it aside and ordered that the applicant’s claim be re-determined by a newly constituted panel of the Board.
[2] Mr Huntley’s original Personal Information Form [PIF], which he signed on May 27, 2008, set out his experience as a white male in South Africa, including at least six alleged assaults on him by Black South Africans.
[3] He submitted an updated PIF on August 29, 2012 which recounts more recent events in South Africa and includes his sur place refugee claim, (i.e. based on events which occurred while he was in Canada) on the basis of the media attention garnered by the Board’s initial decision to grant him refugee status. The applicant spoke to the media at that time touting his refugee status as validating his allegations that racism against white people in South Africa was rampant. The media coverage was international, and certainly reached South Africa.
[4] The de novo hearing was held on October 23 and 24, 2012. The Board determined that he was not a Convention refugee pursuant to section 96, nor a person in need of protection pursuant to section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) in its decision dated January 10, 2013.
[5] The applicant, Mr Huntley, now seeks judicial review of that decision pursuant to section 72 of the Act.
[6] On this judicial review, the applicant argues that Justice Russell, in Huntley # 1, found the 2009 decision unreasonable due to the lack of objective evidence of racism and persecution of white South Africans. The applicant submits that he gathered that evidence and provided it to the Board for the de novo hearing. However, the Board ignored or misunderstood this evidence and preferred other evidence, without proper analysis, and without explaining why it discounted or rejected the applicant’s evidence.
[7] The applicant raised serious allegations about the risks to white people in South Africa and portrayed this judicial review as critical to the future of other potential refugees. The applicant argues in his written memo that the position of the respondent, the Minister of Citizenship and Immigration, is a veiled attempt to hide a reality that should be given a spotlight. Such a statement disregards the purpose of judicial review, which is to determine whether the Board’s decision which found that Mr Huntley was not a Convention refugee or a person in need of protection is reasonable.
[8] I share the view expressed by Justice Russell in Huntley # 1, at para 235,
I wish to emphasize again that all I am dealing with is a particular decision about one white South African within the narrow confines of Canadian jurisprudence on reviewable error. This decision cannot, and should not, be taken as either a personal or a political opinion or assessment about the plight of white South Africans in the post apartheid era. [emphasis in original]
[9] For the reasons that follow I find that the Board’s decision is reasonable and the application is dismissed.
Background [10] Mr Huntley arrived in Canada in July 2004 on a five-month temporary work visa, sponsored by a Canadian employer. He returned to South Africa when the visa expired in November 2004 and reapplied for a temporary work visa. He returned to Canada in June 2005. He reapplied for work visas from within Canada until he was no longer permitted to do so. His last work visa expired on December 31, 2006. He remained in Canada without status and filed a claim for refugee protection in April 2008.
[11] The applicant’s claim is based on his fear of persecution and risk to his life if he returns to South Africa.
[12] In his original PIF he recounted the following incidents:
• In 2000, he received delayed medical treatment (stitches and x-rays) in favour of Black patients at a hospital where all staff were Black;
• He applied to the Home Office for a passport and had to return three days in a row to submit his passport application because Black citizens were permitted to go ahead of him in line;
• He was required to submit additional documentation not required of Black applicants when making his application for his work permit for Canada;
• He was unable to obtain a job in South Africa due to “Affirmative Action”;
• He was assaulted and stabbed at least six times since he was a teenager by Black South Africans because of his race. During these incidents, he was subjected to racial slurs;
• He is aware of other white South Africans who have been “hijacked” and/or assaulted;
• During the previous election, members of the African National Party [ANC] chanted phrases such as “Kill the Whites”; and,
• Members of his family in Roodeport, SA have hired a security company to follow them if they have to drive anywhere at night.
[13] The applicant did not report the assaults to the authorities believing nothing would be done. He stated that when he returned to South Africa in November 2004 he realized that he could not live there because he was constantly afraid for his personal and financial security.
[14] In his updated PIF, the applicant claims that he went to the media following his positive refugee decision in 2009, because he “felt so strongly that millions of people did not know what was going on in South Africa regarding the plight of white South Africans […]”. In response to media reports regarding the Board’s decision, the South African government commented that the decision was “racist” and affected the relationship between Canada and South Africa.
[15] The applicant claims that South African news sources reported on his positive refugee determination, making his face well-known publicly and that South African journalists continue to contact his lawyer for updates on his status. The applicant’s mother saw an advertisement on a bus for a newspaper which included a picture of him. In addition, Facebook posts following these news reports included threats against him. As a result of this exposure, the applicant fears reprisals for making a refugee claim against South Africa and publicizing it internationally. He believes he would be flagged at the airport upon arrival.
[16] The applicant also states that African National Congress [ANC] leaders continue to chant and sing songs encouraging and/or condoning the killing of white people. The applicant notes that he fears Black citizens who will follow the messages of the political leaders and that state protection will not be available to him.
The Decision under Review [17] The Board rendered a 38-page decision finding that the determinative issues were the applicant’s credibility and the adequacy of state protection.
[18] The Board found that the applicant’s delay in making a claim for refugee protection until April 2008 undermined his credibility with respect to his subjective fear of persecution. His explanation for the delay was unreasonable given that he testified that he learned he could seek refugee protection in June 2007, 10 months before he applied for refugee status.
[19] The Board also noted that the applicant had returned to South Africa for several months in November 2004.
[20] The Board found the applicant’s credibility was also undermined by inconsistencies in his testimony at his original hearing and the de novo hearing. In the de novo hearing, he referred to racial slurs that were yelled at him during the assaults, but the racial slurs were not mentioned at the first hearing.
[21] The Board acknowledged that there were serious human rights problems in South Africa, but noted that the judiciary is independent, there is access to the courts to bring civil lawsuits for human rights violations and there are also non-governmental organizations [NGOs] as well as the South African Human Rights Commission working to promote human rights in government and in the general population.
[22] The Board considered the extensive documentary evidence submitted by the applicant and the documentary evidence in the National Documentation Package [NDP]. The Board placed significant weight on a series of reports generated by the United Nations Human Rights Council [UNHCR] following its Universal Periodic Review of South Africa. The Board found that the UN reports show that South Africa is committed to promoting human rights. The Board also noted that the UNHCR acknowledged reports of corruption within the police force in South Africa. However, decreasing crime rates were also reported and South African representatives responded that reports of corruption are addressed through administrative and criminal proceedings.
[23] The Board reviewed the expert evidence submitted by the applicant, but found that the concerns set out in the applicant’s evidence were not echoed in the reports published by the UNHCR and other NDP documents.
[24] The Board also referred to the reports of the United Kingdom [UK] Home Office and Freedom House, which confirmed that some political leaders continue to sing and chant songs that amount to hate crimes and, although they have been sanctioned for this behaviour and ordered to stop, this conduct has led to racial tension. The Board found that these reports do not confirm that there are preparations underway for genocide, as suggested by Dr Stanton, who provided documentary evidence for the applicant.
[25] The Board noted the submissions of the applicant arguing that the reports from the US Department of State and Amnesty and Human Rights Watch would not reflect the murders of white people, or that these murders were racially motivated, because the Universal Periodic Review [UPR], which was relied on in these reports, does not include data on the ethnicity of the victim.
[26] The Board also referred to the decision of Justice Russell in Huntley #1 where he found that the Affirmative Action policies of the South African government cannot reasonably be found to rise to the level of persecution. Justice Russel also distinguished the plight of white farmers experiencing violence from the applicant’s personal situation as he is not a farmer.
[27] The Board found the NDP documents, including the UNHCR reports, to be credible and trustworthy evidence on the basis of the trustworthiness of the organizations generating the reports and the specific contributions made to these reports. The Board expressly noted that it gave more weight to this evidence than to the documents submitted by the applicant, but added that “the opinions and the information entered into evidence by the claimant raise serious concerns.”
[28] The Board considered the relevant principles regarding discrimination versus persecution and noted that prior incidents of discrimination could amount to persecution, but found that in this case, they did not. The Board found that the applicant had not established that the assaults prior to 2004 were connected to his race.
[29] The Board then considered the applicant’s sur place claim that he could face persecution as a result of his positive refugee determination in 2009 and the media attention it generated, but found that based on all the evidence, this claim amounts to pure speculation. The applicant did not present objective evidence that he would be attacked as a result of his actions in Canada.
[30] The Board noted that it was necessary to go beyond the applicant’s personal situation to determine the risk he faces and considered his submissions that he is a member of a group that is persecuted because of race, and that group faces a possible genocide.
[31] The Board found that the evidence as a whole does not corroborate the existence of a generalized oppression of white people or the existence of preparation for a genocide against them in South Africa. Accordingly, the applicant had not established the existence of a reasonable chance or serious possibility of persecution should he return to South Africa merely because he is a member of the racial or ethnic group consisting of white citizens of South Africa.
[32] The Board then turned to the consideration of adequate state protection noting that he never informed the South African authorities of the assaults against him before he left in 2004. The Board noted that the fact that police have acted illegally in some areas of the country does not establish that the state as a whole is an agent of persecution or that it does not offer protection to victims of crime.
[33] The Board found that it was reasonable to expect the applicant to attempt to seek protection in his country before making a refugee claim and that he had not made any such efforts. In the circumstances, he had not rebutted the presumption of adequate state protection.
[34] The Board acknowledged that while South Africa was a young democracy with ongoing problems, it is a functioning democracy with independent judicial institutions.
[35] In conclusion the Board stated at para 76:
In short, I find that the claimant did not present to me evidence establishing that in the past, he did what was necessary in the circumstances and in that context to alert the South African authorities and to try to obtain their protection, or that in the future, he would be prevented from informing the South African authorities and obtaining their protection if he were subjected to persecution, to a risk to his life or to torture.
Standard of Review [36] The standard of reasonableness applies to the review of decisions of fact, mixed fact and law and credibility. The role of the Court on this judicial review is, therefore, to determine whether the Board’s decision “falls within ‘a range of possible, acceptable outcomes which are defensible in respect of the facts and law’ (Dunsmuir, at para. 47)”. There may be several reasonable outcomes and “as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome” (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 59).
[37] Credibility findings are factual and case specific and rely on the assessment by the decision-maker of several factors including the observation of the witnesses and their responses to questions posed. The Board is entitled to draw inferences based on implausibility, common sense and rationality (Aguebor v Canada (Minister of Employment and Immigration) (1993), 160 NR 315, [1993] FCJ No 732 at para 4 (FCA)). Given its role as trier of fact, the Board’s credibility findings are to be given significant deference (Lin v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para 13, [2008] FCJ No 1329; Fatih v Canada (Minister of Citizenship and Immigration), 2012 FC 857 at para 65, 415 FTR 82).
[38] The adequacy of reasons is also assessed on a reasonableness standard (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 21-22, [2011] 3 SCR 708, [Newfoundland Nurses]).
[39] In short, the Court does not re-weigh the evidence or re-make the decision; it assesses whether the decision made by the Board is reasonable, with reference to the principles established in the jurisprudence and the record before the Court.
The issues [40] The applicant submits that the decision is not reasonable because the Board erred in several respects; the Board’s reasons are inadequate, particularly with respect to its credibility findings; the Board made irrelevant and vague credibility findings based on past events; the Board ignored, misconstrued and misunderstood the extensive documentary evidence and failed to explain why it preferred its own evidence over that provided by the applicant; the Board did not apply the correct test pursuant to section 96; and, the Board’s state protection analysis was flawed.
Did the Board provide adequate reasons? [41] The applicant submits that the Board failed to provide adequate reasons for its decision which frustrates his ability to pursue arguments on judicial review. Although the Board comments that the applicant’s credibility with respect to his subjective fear is undermined by his delay in filing his refugee claim and by inconsistencies in his testimony, the Board does not indicate whether these findings only diminish his credibility or lead to a finding of a general lack of a credibility regarding his subjective fear.
[42] The applicant asserts that it is not clear whether the Board accepted the content of the expert affidavits he submitted to establish the existence of race-based persecution and political-based persecution in South Africa, because the decision appears to both accept and reject this expert evidence.
[43] The applicant also submits that it is unclear whether the Board considered the new fears expressed in his 2012 claim, because the Board does not make an express finding. The applicant argues that this demonstrates that the Board did not consider his fears in light of the current situation in South Africa.
[44] The respondent submits that the reasons of the Board were clear and transparent; it considered all the evidence before it, provided explanations for its findings and referred to the evidence relied upon to support the findings.
The Reasons of the Board are Adequate [45] The applicant’s submissions regarding the reasons of the Board are without merit. The Board provided detailed and clear reasons for its findings.
[46] The Board identified three specific issues with respect to the applicant’s credibility, as described below.
[47] It is apparent in the reasons, as discussed below, that the Board accepted and carefully considered the affidavit evidence of the applicant’s experts, but gave more weight to the documentary evidence in the National Documentation Package.
[48] It is also clear that the Board considered the applicant’s new fears of persecution as set out in his 2012 PIF. The Board outlines this aspect of the claim, analyzes and concisely explains why the sur place claim is rejected.
[49] The Board noted the applicant`s testimony about his fear of persecution in the future due to the chants and messages of political leaders that incite persecution of white people, that numerous murders of white people in South Africa were racially motivated and that he would be recognized as his photo and name have been circulated.
[50] The Supreme Court of Canada noted in Newfoundland Nurses:
[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[51] In the present case, the Board’s reasons reveal why it made its decision and permit the Court to determine its reasonableness. The applicant’s detailed arguments on this judicial review belie his suggestion that the inadequacy of reasons disadvantaged him in any way in pursuing judicial review.
Did the Board err in making vague credibility findings based on past events? [52] The applicant submits that if the Board did make a finding of a general lack of credibility with respect to his subjective fear of persecution, it erred. The applicant submits that such a finding was based on the Board’s assessment of facts as alleged in his original PIF. The applicant argues it was unreasonable for the Board to consider incidents alleged between 1991-2003 to assess his credibility with respect to his 2012 claim, particularly with respect to the assessment of his sur place claim.
[53] The applicant argues that even where the Board finds a lack of credibility, it must go on to assess a sur place claim (Mohajery v Canada (Minister of Citizenship and Immigartion), 2007 FC 185 at paras 31-32, [2007] FCJ No 252).
[54] The applicant notes that more recent events in South Africa since 2008 have fuelled his fears of persecution. He submits that the Board only summarised the extensive documentary evidence of these events but did not analyse it or make a credibility finding with respect to his 2012 fears. He argues that this demonstrates that the Board based its findings on past events that are irrelevant to the sur place claim.
[55] He also argues that, in any event, any credibility findings were unreasonable; the Board had found him to be credible in his 2008 claim and that on judicial review Justice Russell accepted the credibility findings of the panel.
[56] He submits that the Board erred in finding that he had not mentioned racial slurs that accompanied the assaults in his first claim. He notes that he was not asked about racial slurs at the original hearing, but that he did refer to the use of racial slurs in his original PIF.
[57] The applicant also submits that it was unreasonable for the Board to draw adverse inferences from his return to South Africa in November 2004, because he had explained that he was required to return in order to reapply for a work permit in Canada.
[58] The respondent submits that significant deference must be given to the Board as it is best positioned to assess credibility. The finding that the applicant was not credible was in relation to the claim that he was assaulted on the basis of his race. This is consistent with the reasons of Justice Russell on judicial review of the original decision where he notes that violence in South Africa is generalized and cannot be equated to the persecution of white South Africans (Huntley #1, at para 169).
[59] The respondent submits that the applicant indicated that his claim was based on both the past and the more recent events and that at a de novo hearing the Board is entitled to consider the entire record. Credibility findings at the first hearing do not bind the second panel of the Board. The respondent also notes that Justice Russell did not make any finding regarding the applicant’s credibility.
[60] The respondent submits that the delay in making his refugee claim in 2008 was a reasonable basis for the Board to find that the credibility of his subjective fear of persecution was undermined.
The Board’s credibility findings are reasonable [61] As noted above, the Board’s credibility findings are to be given significant deference. The Board heard and questioned the applicant extensively at the de novo hearing. The applicant indicated he was relying on both the past and more recent events.
[62] The Board was entitled to consider the entire record and is not bound by any credibility findings of the first Board.
[63] The Board appears to have missed the applicant’s mention of racial slurs in his original PIF, despite its review of the earlier transcript, and the applicant’s explanation that he returned to South Africa in 2004 in order to seek a new work permit. Nonetheless, the Board was entitled to rely on the applicant’s delay in seeking refugee protection, which he only pursued in 2008, notwithstanding his testimony that he realized in 2004 that he could not return to live in South Africa and that he returned to Canada in 2005.
[64] The Board noted that the failure to claim refugee protection upon arrival can impugn a claimant`s credibility, but that a delay could only be measured from the date at which the claimant begins to fear persecution. The Board peppered the applicant with questions regarding why he delayed in making his refugee claim. His answers ranged from his lack of awareness that he could make a refugee claim until June 2007, and that the further delay was due to his belief that he had to be bilingual to become a permanent resident, then that he had other things to do, and then that it took some time to complete the forms. The Board did not find the applicant`s explanation for his delay in making his claim to be reasonable.
[65] In addition, at the de novo hearing, when asked whether he had personally been subjected to persecution on the basis of race, he answered “no”. It is reasonable for the Board to question why he later changed his story.
[66] The Board made a clear finding that the delay undermined his credibility regarding his subjective fear of persecution if he were to return to South Africa. The Board further noted that this credibility finding did not undermine all aspects of his claim, and continued to assess it.
Did the Board ignore, misconstrue and misunderstand the extensive documentary evidence provided by the applicant and did the Board fail to explain why it preferred its own evidence over that provided by the applicant? [67] The applicant submits that the affidavit evidence of two experts and numerous articles and media reports establish the existence of race-based and political-based persecution in South Africa. Yet, the Board failed to explain why it preferred the evidence in the National Documentation package.
[68] The applicant referred to the extensive evidence he provided of Dr Stanton and Adriana Stuijt which supports the view that South Africa is in the later stages of preparation for a genocide. The applicant argues that the Board failed to explain how this evidence was weighed and, if it was rejected, why it was rejected.
[69] The applicant notes that the Board indicated that the standard documentation package comes from organizations considered to carry out their work in a serious manner and whose reports have been found to be trustworthy and, the Universal Periodic Review documents come about because members of South African civil society and state representatives gather at an international forum and present their points of view and engage in dialogue. The applicant submits that this is not sufficient explanation; the Board must explain why the documentary evidence of one party is preferred over that of the other party. In addition, the applicant submits that the UPR should not be relied on because these documents do not confirm that the views of South African civil society were considered. The applicant also notes that the UK Home Office report relied upon by the Board was based on the UPR, which cannot be relied on because the crime statistics do not include the ethnicity of victims; therefore, these reports would not reflect racially motivated crime.
[70] The applicant submits that the Board’s reasoning is inconsistent because it notes its concerns regarding the evidence of genocide provided by Dr Stanton and Adriana Stuijt, but still prefers its own evidence. The applicant submits that the Board must make an unequivocal finding about this evidence but fails to do so.
[71] The applicant further submits that the Board must explain why it prefers its own evidence. The Board is required to identify the “competing factors” in the evidence and conduct a comparative analysis (Guerrero v Canada (Minister of Citizenship and Immigration), 2010 FC 384 at paras 31- 32, [2010] FCJ No 448 [Guerrero]).
[72] The respondent’s position is that there was a great deal of evidence and it is clear that the Board considered it all and weighed it as it deemed appropriate, giving more weight to the NDP, including the UPR, because these reports were more current and more credible. It would be unreasonable to expect the Board to make specific references to over 1000 pages of evidence. The respondent also submits that the Board found that the expert affidavits admitted by the applicant raised concerns when viewed in light of objective evidence to the contrary.
The Board did not ignore any evidence; the Board weighed the evidence and provided sufficient justification for preferring the evidence in the National Documentation Package over the applicant’s evidence [73] The Board’s decision thoroughly canvasses all the evidence provided; that of the applicant, which was extensive, and that in the National Documentation Package. The Board noted the contradictory evidence and acknowledged the serious concerns raised in the evidence of the applicant.
[74] The Board clearly did not reject the applicant’s evidence. However, it found that the evidence in the NDP, which did not reflect, to the same extent, the problems of racial violence against whites and did not reflect the notion of genocide at all, was more credible. It is the Board’s role to consider and weigh the evidence, and it did just that. It is not the role of the Court to re-weigh the evidence.
[75] The Board noted that while many human rights issues were raised as concerns in the UN reports, international bodies did not identify discrimination against the white population as an area of concern.
[76] The Board specifically referred to the evidence submitted by the applicant; the affidavits of Dr Stanton and Adriana Stuijt and the attached articles. However, the Board found that the reports published in the UPR concerning South Africa “definitely do not echo the concerns of either Professor Stanton or Ms. Stuijt regarding the imminence of preparation for a genocide targeting white South Africans, nor do the reports from the various organizations that are included in the National Documentation Package on South Africa”.
[77] The Board could not have reached this conclusion if it had not analyzed the evidence submitted by the applicant.
[78] The applicant argues that the Board is inconsistent in noting the concerns raised by his evidence, but discounting it. I do not agree that this is an inconsistency. This is the nature of assessing the evidence and determining whether to attach more weight to some evidence than to the other. The Board acknowledged that the evidence suggesting the preparation for a genocide did raise concerns, but that steps can still be taken to address the alleged human rights violations now. The Board concluded that the evidence in the NDP was to be given more weight.
[79] As noted by Justice Mosley in Smith v Canada (Minister of Citizenship and Immigration), 2012 FC 1283, [2012] FCJ No. 1376 [Smith], it is within the discretion of the Board to accept or reject and to weigh the evidence:
[49] It is apparent from the decision that the Board Member read and considered all the expert opinions presented. It was within his discretion to reject some or all of them. The Court accepts that the Member might have reached a different conclusion based on the voluminous material submitted by the applicant with respect to the experiences of gays and lesbians in the US military. It is not the role of the Court to re-weigh that evidence, however, but to determine whether the Board’s treatment of it was unreasonable. The fact that the Member’s recapitulation of the material and his explanation for discarding it were brief does not invalidate his choice. As the Supreme Court explained in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708:
[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[80] The applicant also relied on Coitinho v Canada (Minister of Citizenship and Immigration), 2004 FC 1037, [2004] FCJ No 1269 [Coitinho] for his position that reasons must be provided for preferring one body of documentary evidence over another. I note that the same submissions were made by the applicant to the Board and the Board specifically referred to the passage of Coithino that the applicant relied on. In the present case, the Board did provide reasons for preferring the evidence in the NDP, which can be distinguished from the reasons found to be problematic in Coithino.
[81] In Coithino, Justice Snider found, at para 7:
[7] The Board goes on to make a most disturbing finding. In the absence of stating that the Applicants' evidence is not credible, the Board concludes that it "gives more weight to the documentary evidence because it comes for (sic) reputable, knowledgeable sources, none of whom have any interest in the outcome of this particular refugee hearing". This statement is tantamount to stating that documentary evidence should always be preferred to that of a refugee claimant's because the latter is interested in the outcome of the hearing. If permitted, such reasoning would always defeat a claimant's evidence. The Board's decision in this case does not inform the reader why the Applicants' evidence, when supposed to be presumed true (Adu, supra), was considered suspect. Further, this reasoning cannot even stand on the facts of this case.
[emphasis added]
[82] As noted, the Board is entitled to weigh the evidence and prefer evidence that comes from reputable and knowledgeable sources. The issue in Coithino was that the evidence was also preferred on the basis that the sources had no interest in the outcome of the hearing. There is no suggestion that this is the basis of the Board’s reasoning in this case.
[83] With respect to the applicant’s argument that the Board is required to identify competing factors – or competing and contradictory evidence- conduct a comparative analysis and explain how some factors were more persuasive than others, I do not agree that the case relied on by the applicant is at all analogous or applicable and does not support such a general proposition.
[84] In Guerrero, above the issue was whether the Board had reasonably considered the evidence to rebut a presumption that the applicant had committed a serious non-political crime and whether it had failed to provide an analysis for its determination.
[85] In the passages relied upon by the applicant, the Court noted:
[31] In the present case, the RPD certainly refers to and lists the Jayasekara factors and I think the Respondent is correct to say that, implicitly at least, a weighing process is evident and, in the end, the RPD decided that the mitigating factors put forward by the Applicant were not persuasive in rebutting the presumption of a serious, non-political crime. But that is as far as the Decision goes.
[32] What we do not know is why the RPD found some factors more persuasive than others. There is no real evaluation of the various factors or explanation of how or why, in the end, the conclusion was reached. The Decision remains a list of factors followed by a bald conclusion, even though it is implicitly clear that the RPD did not find the Applicant’s mitigating points persuasive in overcoming the presumption.
[86] The facts and the context for the determination made by the Board in Guerrero were completely different. In the present case, there are no mitigating or aggravating factors to consider or balance in determining if any presumption has been rebutted; rather, there is a great deal of evidence to be weighed to assess whether the applicant faces a risk of persecution. It would be unreasonable to demand that the Board refer to each document referred to or relied on by an applicant and assign it a specific weight or to assess the relative credentials of each expert or author of a report.
[87] In the present case, the Board did not simply list factors or list the evidence in support of Mr Huntley’s position and the evidence that did not support his position. The Board assessed the evidence, acknowledged the concerns raised and explained why it preferred the evidence included in the NDP, which included reports from the UK Home Office, the UN UPR report, and Freedom House.
[88] The Board’s decision reflects the established principles in Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425 [Cepeda- Gutierrez]. As Mr Justice Evans wrote in Cepeda-Gutierrez at paragraph 17:
[T]he more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration), (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[89] In the present case, the Board was not silent and did not make a blanket statement that it had considered the evidence. The Board referred to the applicant’s evidence in detail and noted the differences between it and the evidence in the NDP. It clearly did not overlook any contradictory evidence. It reached its conclusions based on its weighing of the evidence, which it was entitled to do.
Did the Board err in applying the wrong factual test pursuant to section 96 to assess Mr Huntley’s potential persecution in South Africa? [90] The applicant submits that in order to establish a risk of persecution, the Board required, as a condition precedent, “the existence of a generalized oppression of white people, or the existence of preparation for a genocide against them in South Africa”. The applicant submits that the Board erred in applying the test pursuant to section 96. The correct test is whether there is both a genuine subjective fear of persecution and objective evidence to support that fear.
[91] The applicant submits that he provided sufficient evidence to establish both his subjective fear and the objective basis for that fear. He submits that he is not required to establish that he would be persecuted; only that he has a genuine fear and that he is part of group that currently suffers the risks alleged (Salibian v Canada (Minister of Employment and Immigration), [1990] 3 FC 250, [1990] FCJ No 454 (FCA), Fi v Canada (Minister of Citizenship and Immigration), 2006 FC 1125, [2007] 3 FCR 400) [Fi].
[92] The applicant submits he is part of a grou