Digests

Vifansi v. Canada (Minister of Citizenship and Immigration)

IMM-2366-02

2003 FCT 284, Heneghan J.

7/3/03

12 pp.

Judicial review of Immigration and Refugee Board, Convention Refugee Determination Division decision, determining applicant not Convention refugee--Applicant citizen of Cameroon aged 18 when arriving in United States --Refugee claim in Canada based on risks applicant would face if returned to Cameroon, alleging he would face persecution as result of political activities carried out by parents in Cameroon--Claim for Convention refugee status based on imputed political opinion--Board concluded applicant not Convention refugee because deliberately fled justice system in United States--Even if applicant had come to Canada to avoid prosecution on criminal charge in United States, irrelevant consideration to Convention refugee claim against Cameroon--Clear from application for Convention refugee status in Canada applicant seeking refugee status on basis he would likely face persecution if returned to Cameroon --Issue of criminal charge in United States irrelevant to whether applicant excluded from making Convention refugee claim in Canada pursuant to Convention, Art. 1E--Equally irrelevant to question of possible persecution in Cameroon-- Board ignored basis of claimant's refugee claim, imputed political opinion in relation to Cameroon, and proceeded upon misapprehension of basic fact--Although Board never referred directly to Art. 1(E), since Board relied on applicant's "official status" in United States as reason applicant "cannot" be determined Convention refugee, means Board relied on Art. 1(E) to exclude applicant from consideration as Convention refugee in Canada--Reasons of Board in case at bar show Board did not properly or thoroughly deal with exclusion issue--Evidence gathered by officials of Canada Immigration relative to applicant's inability to return to United States not mentioned or dealt with by Board--Board's reasons show reliance upon applicant's "official status" in United States to conclude applicant not Convention refugee in Canada--In law, finding of "official status" does not determine applicability of Art. 1(E) since case law requires Board to inquire whether applicant has right to return to country of former residence, as well as to inquire, as per wording of Art. 1(E) whether applicant has other rights attached to "possession of nationality" of Cameroon--Criteria Board should consider in Art. 1(E) analysis including whether persons has (i) right to return to country of residence, (ii) right to work freely without restrictions, (iii) right to study, and (iv) full access to social services in Cameroon--By not evaluating criteria, Board erred in law--Judicial review allowed--United Nations Convention Relating to the Status of Refugees, July 28, 1951 [1969] Can. T.S. No. 6, Art. 1E.