Digests

Pacificador v. Canada (Minister of Citizenship and Immigration)

IMM-4057-02

2003 FC 1462, Heneghan J.

12/12/03

31 pp.

Applicant seeking judicial review of Immigration and Refugee Board's (Board) decision applicant not Convention refugee--Applicant citizen of Philippines and left country on March 15, 1986--On September 29, 1987, he claimed Convention refugee status in Canada on grounds of political affiliation and membership in particular social group (family with known political affiliations)--Applicant claims prosecution really politically motivated, directed by political rivals--National presidential election took place in February 1986 in Philippines--Applicant and family supported President Ferdinand Marcos--Javier family, political rivals in Antique politics, supported Corazon Aquino--Later that year, Corazon Aquino declared President--On February 11, 1986 Evelio Javier, brother of Ezekiel Javier, governor of Antique province, murdered--Applicant charged with murder-- Applicant now wanted in Philippines in connection with murder--Applicant attests he is innocent of charge--Board found Convention Relating to the Status of Refugees did not apply to exclude applicant from refugee protection--Board found no serious reason to consider applicant had committed serious, non-political crime--In addition, Board found assumption foreign judicial system fair and independent did not apply to Philippines--Board then found applicant did not have well-founded, objective basis to fear persecution in Philippines as rich and influential people, like applicant, benefit from corrupt judicial system and not victims of police brutality--Two issues arising in relation to applicant's arguments about alleged breaches of duty of fairness--First, well established Board has control over its own procedures, including requests for postponements--Applicant's request Board await pending decision of Ontario Court of Appeal concerning his extradition in nature of request for postponement--Board not obliged to grant request, although it may have been prudent to do so--Second, concerning fact Board had made decision prior to receipt of Ontario Court of Appeal decision--Reasons signed by Board on July 19, 2002 and applicant delivered decision of Ontario Court of Appeal, dated August 1, 2002, to Board on August 6, 2002-- According to Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration) (2000), 11 Imm. L.R. (3d) 175 (F.C.A.), decision "rendered" by Board on date that it signs its reasons--Accordingly, Board had no authority to address decision of Ontario Court of Appeal upon receipt of those reasons on August 6, 2002--Applicant arguing Board erred in failing to consider post-hearing evidence, that is affidavit submitted on April 16, 2002 with further evidence about trial of father in relation to Pangpang murder trial--Applicant failed to show this evidence not considered by Board--Fact Board did not refer to every piece of evidence before it does not mean that it did not take it into consideration--Board presumed to have weighed and considered all evidence presented, unless contrary shown--Inference post-hearing affidavit evidence not considered due to Board's failure to refer to it in reasons not arising in this case because affidavit evidence simply elaborated on what applicant had already presented--Third argument concerns substance of Board's decision, that he had not established objective basis for claim --Board explicitly based conclusion on finding, notwithstanding fact judicial system in Philippines corrupt, unfair and marked by torture and police brutality, other evidence suggesting persons of wealth and influence could manipulate corrupted judicial system to their benefit--Board found applicant fell within group of persons who could avoid abusive treatment by exercising his power, influence and wealth--Applicant submitting this is perverse finding-- Person making claim for Convention refugee status bears burden of establishing both objective and subjective basis for claim--Board's decision must be grounded in evidence-- Board's conclusion perverse in concluding applicant would not face persecution because limiting comparison of applicant to only one other similarly situated person, his father--Fault in defining comparator group too narrowly--Board should have considered objective basis of applicant's fear of persecution relative to membership in group consisting of persons in Philippines prosecuted for political motives and whose prosecution appears to be tainted by corruption--Fact applicant's father not abused or tortured not determinative of applicant's claim for Convention refugee status--Error sufficient to allow judicial review--Last argument regarding relationship between extradition process and affected person's opposition to process, and determination of Convention refugee claim--Extradition recognized as particular form of co-operation between states regarding enforcement of criminal law--In present case, Board aware of ongoing extradition proceedings--Part of factual material submitted to Board--However, Ontario Court of Appeal decision not before Board when deciding case, therefore, not basis for decision concerning applicant's claim for Convention refugee status--Moreover, not basis upon which Board erred in decision--Existence of extradition proceedings, including claim for protection of Charter rights before courts of competent jurisdiction, may prove to be relevant evidence in other cases for determination of Convention refugee status-- Any decision made relative to such evidence will be amenable to judicial review on grounds provided in applicable law-- Judicial review allowed--Immigration and Refugee Protection Act, S.C. 2001, c. 27.