Ioda v. Canada ( Minister of Employment and Immigration )
92-A-6604
Dubé J.
18/6/93
7 pp.
Application for judicial review of Refugee Division's decision applicant not Convention refugee -- Applicant Latvian Catholic married to Belorussian Jew -- Considered mixed marriage both as to nationality and religion -- Suffering various forms of harassment as result of mixed marriage -- Applicant once beaten for being "Latvian fascist" -- Receiving numerous anonymous threatening notes calling her traitor for marrying non-Latvian -- Both applicant and husband losing employment because he was not Latvian -- Young son beaten several times by both Russian and Latvian youths -- Since applicant and son's departure home defiled with anti-Semitic graffiti and Stars of David -- Voluminous documentary evidence filed concerning conditions relating to applicant's claim -- Tribunal finding applicant and son credible, but concluding no "serious possibility" of persecution should applicant be returned to Latvia -- Holding intimidation experienced by claimant not cumulative acts amounting to persecution and only "mere risk" claimant might be victim of persecution -- Application allowed -- Tribunal erred in using concept of "mere risk" as appropriate basis for finding applicant's fear of persecution not objectively well-founded -- Well settled claimant must establish reasonable chance of persecution: Adjei v. Canada (Minister of Employment & Immigration), [1989] 2 F.C. 680 (C.A.) -- Reasonable chance of persecution anything more than mere or minimal "possibility" with no intermediate ground: Ponniah v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.) -- Use of "risk" not mitigated by tribunal's cursory references to absence of "serious possibility" of persecution, when dismissing alternate grounds of applicant's claim -- Federal Court of Appeal exercising considerable vigilance over terms of tribunal findings with respect to objective test to ensure claimants not subjected to more onerous burden than that articulated in Adjei and Ponniah -- "Risk" conveying higher threshold of probability, thus unsuitable intermediate test not endorsed by courts -- Tribunal's finding of absence of "cumulative acts amounting to persecution" making no reference to numerous violent episodes to which son subjected -- Serious omission since persecution may be found in actions directed against members of claimant's family: Surujpal v. Minister of Employment & Immigration (1985), 60 N.R. 73 (F.C.A.) -- Also not mentioning anti-Semitic vandalism visited upon applicant's home since departure -- Misconstruing testimony as to consequences of social climate on employment situations -- No reference to voluminous documentary evidence submitted -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5) -- Immigration Act, R.S.C., 1985, c. I-2, s. 2 -- Federal Court Immigration Rules, 1993, SOR/93-22, R. 18.