Digests

Goodman v. Canada (Minister of Citizenship and Immigration)

IMM-1977-98

Lemieux J.

29/2/00

43 pp.

Judicial review of CRDD denial of refugee claim--Applicant, Roman Catholic born in Northern Ireland (N.I.), citizen of United Kingdom--Member of Irish Republican Army from 1969 to 1974, Irish National Liberation Army (INLA) from 1975 to 1982--In 1982 arrested, turned informer, moved to England, preparing to testify against those arrested because of him--In September decided to retract, returned voluntarily to N.I. where lived without incident--Learned orders out to kill him, probably by faction of INLA--Came to Canada in 1986--Applicant feared persecution if returned to N.I., U.K. or Europe--CRDD holding not satisfied applicant providing clear, convincing confirmation of U.K.'s inability to protect him, that objectively unreasonable for him not to have sought such protection--Relying on Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, CRDD performed separate analyses of U.K.'s ability to protect applicant and applicant's unwillingness to avail himself of protection of U.K.--Concluding being unable to avail self of state protection implying circumstances beyond will of person concerned such as state of war, civil war or other grave disturbance preventing country of nationality from extending protection; denial of entry to U.K. could also be aspect of "unable" test--Considering arguments advanced as to why applicant, given Prevention of Terrorism Act (PTA, permitting British authorities to expel person from England to N.I.) would not be allowed to enter, remain in U.K. i.e. person holding responsible positions with IRA, INLA, retracted cooperation, convictions related to nationalist cause--CRDD holding no persuasive evidence to support contention would be denied entry to U.K. or indicating British authorities interested in him--Assessed effectiveness of protection if returned to U.K., considering evidence regarding Patrick Ward, subject of Ward, (supra) who had been returned to U.K. with no immediate repercussions--CRDD found applicant unwilling to avail himself of protection of British government because believes would not offer him adequate protection--Refugee status not granted to claimant if serious reasons for considering committed crime against humanity (Art. 1F(a))--CRDD inferring from positions, history of involvement in both organizations, applicant knew about activities undertaken by people in his command and by INLA in general and therefore complicit in crimes against humanity committed by INLA during involvement in that organization--CRDD finding applicant involved in commission of serious non-political crime (Art. 1F(b)), as evidence not establishing nexus between crimes committed by INLA, potential accomplishment of group's political objective to overthrow local government--CRDD holding as applicant complicit in crimes by INLA, characterized as contrary to purposes of United Nations, falling with Art. 1F(c)--Tape recording of cross-examination by Minister's representative of applicant blank--Hearing proceeding on basis of agreed statement of facts--Application allowed in part: findings of CRDD in respect of all exclusions set aside; finding applicant not having well-founded fear of persecution based on U.K.'s ability to protect him upheld--CRDD correctly interpreted legal principles related to concept of state protection established by Ward--Concept integral part of demonstration of "well-founded fear" of persecution because if state able to protect claimant, fear not well-founded--CRDD's separate analysis of claimant being unable to avail himself of protection (encompassing applicant's right to enter, stay in England) and U.K.'s ability to offer him effective protection from INLA and unwillingness to do so also in accord with Ward--Correctly assessed whether applicant first had to seek protection of U.K. when claiming under unwilling branch: claimant will not meet definition of "Convention refugee" where objectively unreasonable not to have sought state protection--Ward helpful on other points: question not whether applicant's life in danger if returned to Ireland or Great Britain, but whether can be protected from that danger (finding of fact); PTA might serve to rebut presumption by demonstrating lack of protection, depending on particular circumstances which must be determined by Board--On each critical finding of (a) refusal of entry or being allowed to stay in England, (b) effectiveness of protection, (c) unwillingness of applicant to seek protection evidence reasonably supporting findings, inferences drawn--CRDD's reference to Ward's experience after deported to England not basis for setting aside decision as could take into account, as matter of public knowledge what happened to Ward after decision in his case--Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 setting out common law natural justice test to be applied where transcript of proceeding before administrative tribunal not expressly statutorily obliged to record testimony unavailable--Whether defects or gaps in transcript must be shown to raise "serious possibility" of denial of ground of appeal or review before new hearing ordered--Must consider other means available i.e. notes taken during part of hearing for which transcript missing; that CRDD's decision dealt with both whether U.K. unable to protect applicant and with exclusionary grounds under Art. 1F of Convention; each ground for review advanced by applicant because only ground for review advanced, denied may breach natural justice--Subject-matter covered in gap including number of operations applicant involved in, who decided on operations, whether applicant knew targets; applicant's detailed knowledge on specific operations; knowledge of INLA funding, specific robberies committed for purpose; history of detentions, treatment during internment; scope of deal with authorities; death threat received and whether sought protection from U.K. authorities; arrival in Canada--Transcript gap not denying applicant any ground for review on U.K.'s ability to protect applicant--But CRDD's findings on exclusions cannot stand because of transcript gap--Court not satisfied record permitting it, in respect of such exclusions, to say with any degree of comfort applicant's ground of review meaningfully aired before it--Factual foundation for exclusionary finding CRDD made anchored on crimes committed by INLA, applicant's knowledge of crimes, participation therein or shared common purpose with organization committing them--Evidence relied upon by CRDD substantially derived from cross-examination of applicant for which no transcript available--Missing information crucial to CRDD's exclusionary findings, relied upon by CRDD in significant way--Counsel's notes not adequate means to fill gap.