Digests

Decision Information

Decision Content

Mejia v. Canada ( Minister of Citizenship and Immigration )

IMM-1040-95

Simpson J.

29/7/96

9 pp.

Judicial review of CRDD decision applicant not Convention refugee-Applicant from El Salvador-In 1987 father, brother murdered, probably by guerrillas because another brother joined National Guard-Moved to San Salvador, but in 1991 guerrillas forcing her to pay war tax-Authorities unable to help-When brother disappeared from National Guard, soldiers, armed civilians looking for him at her house-Receiving unsigned summons to National Guard barracks-As believing probably trick from death squad applicant went into hiding-Left country three months after passport issued-CRDD holding minimal possibility of persecution-(1) Respondent's factum not accepted for late filing-On February 19 respondent seeking leave for late filing of factum for use in judicial review application on February 22-Factum late due to counsel's inadvertence-Respondent giving copy of factum to applicant's counsel on February 19, thereby giving him two clear days to review factum-Unacceptable for respondent to disadvantage applicants by providing factum at eleventh hour-Inadvertence not satisfactory explanation-Facta critical element in judicial review proceeding; draw evidence, arguments together and allow parties and Court to prepare properly for hearing-Facta not serving these purposes if not available until few days before arguments made-(2) Judicial review application allowed-Board not making clear finding about whether applicant's fear of persecution objectively well founded-If had no fear, state protection would not be considered, yet Board appears to have used state protection as part of analysis of objective reasonableness of fear-Board also not determining whether reasonable to seek protection given belief authorities agents of persecution-Board's analysis confusing concepts of objective basis for fear of persecution and state protection-Confusion amounting to error of law-Also state protection analysis not approaching question of reasonableness from applicant's perspective-Board apparently inferring from applicant's leisurely departure that not displaying panic expected of one believing target of death squad, but not addressing whether finding causing them to doubt subjective fear.

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.