Digests

Citizenship and Immigration

Exclusion and Removal

Removal of Refugees

Judicial review of decision of Immigration and Refugee Board, Refugee Protection Division (Panel) determining applicant not Convention refugee, person in need of protection on ground state protection available to applicant—Panel not analysing applicant’s credibility or questioning plausibility of applicant’s account—Panel basing decision strictly on issue of availability of state protection—Issue whether reasonable for panel to analyse availability of state protection without first making finding as to applicant’s credibility, plausibility of applicant’s account, thus establishing precise factual context in which analysis could be done—Analysis of objective fear of persecution ordinarily to be done after analysis of subjective fear as particular context unique to each case often conclusive in objective analysis—No context unique to applicant established to guide analysis of availability of state protection—Such analysis not to become method of avoiding making determination concerning subjective fear—Each case sui generis, analysis of individual case to be carried out before concluding presumption of state protection not rebutted—Pragmatic reasons why Panel to follow this approach—If, after initial rejection by panel, new application under pre-removal risk assessment (PRRA) made, PRRA officer may have to grant status to applicant whose credibility, plausibility of applicant’s account, have never been analysed—Officer wishing to assess credibility where panel failed to do so must hold new hearing pursuant to Immigration and Refugee Protection Regulations, SOR/2002-227, s. 167, leading to duplication of proceedings—Application allowed.

Cobian Flores v. Canada (Citizenship and Immigration) (IMM-4831-09, 2010 FC 503, Mainville J., judgment dated May 10, 2010, 21 pp.)