Digests

Foyet v. Canada (Minister of Citizenship and Immigration)

IMM-3004-99

Denault J.

3/10/00

12 pp.

Application for judicial review of CRDD decision applicant not Convention refugee and no credible basis for claim--Applicant, citizen of Cameroon, alleged fear of persecution because of political opinion--CRDD finding applicant had not discharged burden of proof, his testimony was not credible and he had not proved political involvement with opposition party, SDF--CRDD finding that, having determined applicant not credible, it could reject claim and subsequently make finding of no credible basis--Application allowed--CRDD erring in assessment of evidence and drawing unreasonable inference against applicant--Obiter: in finding no credible basis for claim, relying on Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.), CRDD erring in law by giving Immigration Act, s. 69.1(9.1) interpretation no longer justified by Sheikh, as case decided in 1990 under completely different legislative framework (s. 46.01(6)), before 1992 amendments to Immigration Act--Since that time, two-level system no longer exists, and finding of no credible basis has very serious consequences: instead of automatic stay of removal order and eligibility for consideration under procedures with respect to claimant denied refugee status in Canada, applicant now entitled only to seven-day stay of execution of removal order--Sheikh holding that when only evidence linking applicant to harm alleged is found in claimant's own testimony and claimant found to be not credible, CRDD may, after examining documentary evidence, make general finding of no credible basis for claim--Where independent and credible documentary evidence exists, CRDD may not make finding of no credible basis--In this case, CRDD erring in law in applying general statement from Sheikh to case which should have been dealt with under new legislative framework, without even conducting analysis it recommended--Immigration Act, new s. 69.1(9.1) also requiring analysis of all evidence, both objective and subjective--CRDD had obligation to assess all evidence and to expressly state reasons leading to finding of no credible basis--By failing to assess all evidence (CRDD failed to mention existence of medical report which corroborated applicant's story regarding mistreatment he suffered at hands of Cameroonian authorities while detained), both subjective and objective, and by focusing exclusively on applicant's testimony, CRDD committing error subject to judicial review--Immigration Act, R.S.C., c. I-2, ss. 46.01(6) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14), 69.1(9.1) (as enacted idem, s. 18; S.C. 1992, c. 49, s. 60).