CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Convention Refugees |
Hartley v. Canada (Minister of Citizenship and Immigration)
IMM-6517-98
MacKay J.
12/5/00
7 pp.
Application for judicial review of IRB decision applicant not Convention refugee--Applicant, citizen of Peru, submitting IRB erred in failing to find applicant member of particular social group based on union membership--Applicant took leadership in pay dispute with powerful Peruvian business people, owners of vessel on which applicant worked; contacted International Transportation Federation, leading to arrest of vessel--Alleging strong anti-union sentiments in Peru and argued leadership in pay dispute would lead to his persecution--Application allowed--IRB failed to address critical issue of whether one can claim refugee status based on fear of persecution because of perception on part of alleged persecutors of claimant's membership in particular social group, where membership in group not established--According to Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689 person's political beliefs do not have to conform to beliefs ascribed to him by persecutor; beliefs do not have to be explicitly stated, but perception may be based upon actions of claimant--Natural justice and procedural fairness require IRB to consider arguments put forward by claimant--Record indicating IRB did not address whether perceived membership could give rise to Convention protection, issue critical to applicant's claim--Moreover, without making any express finding of lack of credibility in claimant's evidence, IRB refused to consider its weight in absence of corroborating evidence--IRB cannot, without reasons, fail to consider applicant's testimony.