IMM-3068-97
Minister of Citizenship and Immigration (Applicant)
v.
Bob Smith, Jane Doe and John Doe (Respondents)
Indexed as: Canada (Minister of Citizenship and Immigration)v. Smith (T.D.)
Trial Division, Lutfy J."Toronto, May 12 and 15; Ottawa, October 29, 1998.
Citizenship and Immigration — Status in Canada — Convention refugees — Judicial review of CRDD decision respondents Convention refugees based on conclusion —clear, convincing— proof U.K., U.S.A. not providing state protection for sexually molested child — Absent complete breakdown of state apparatus, presumption state capable of protecting claimant — Regarding democratic state, claimant must do more than show went to some members of police force, efforts unsuccessful — In U.K., respondents lodged complaints with Office of Local Ombudsman, one police station, social services agency — In U.S.A. lobbied senior levels of U.S. Department of Justice — Evidence substantially short of discharging burden of proof — CRDD decision finding —clear and convincing— proof required to rebut presumption of state protection unreasonable, clearly wrong or even perverse.
This was an application for judicial review of the Convention Refugee Determination Division's (CRDD) determination that the respondents were Convention refugees. Jane Doe is a citizen of the United States, where she married Bob Smith's natural father, a citizen of the United Kingdom, in 1983. Bob Smith was born in 1984 in the United States. The family moved to the United Kingdom in 1985. Shortly thereafter, Jane Doe discovered that her husband was sexually abusing her son. The couple separated, but the sexual abuse continued during Bob Smith's visits with his father. In 1987 Jane Doe became involved with John Doe, and in March 1992, in an attempt to end the natural father's visiting rights, and apparently upon the advice of American embassy officials, the three respondents moved to the United States. As part of his application for permanent residence, John Doe disclosed a 1979 drug conviction in the United Kingdom. This conviction resulted in his deportation to the United Kingdom in 1994, despite intense lobbying on his behalf with U.S. administration and congressional officials. Some weeks later, Jane Doe moved with her son to Ontario. John Doe entered Canada approximately one month after his deportation to the United Kingdom. The three respondents sought refugee status in Canada in September 1994. As to Bob Smith's claim against the United Kingdom, the CRDD concluded that his victimization was prejudicial to his dignity, well-being and life and that this violation of his rights was "persecution". It held that the evidence concerning state protection in response to his victimization was "clear and convincing proof" that the United Kingdom failed to provide adequate and effective protection. As to his claim against the United States, the CRDD found that in view of his vulnerability as a child persecuted through sexual abuse, the destabilization of his family as the result of John Doe's deportation from the United States constituted persecution, and that the deportation of John Doe, without considering the situation of Bob Smith demonstrated "clear and convincing evidence" of a lack of state protection for the child. The CRDD accepted the claims of Jane and John Doe on the ground of family unity.
The issue was whether the CRDD erred in its findings concerning state protection for Bob Smith.
Held, the application should be allowed.
A Convention refugee claimant must advance "clear and convincing" evidence of a state's inability to afford protection. Absent a complete breakdown of state apparatus, it should be presumed that the state is capable of protecting a claimant. When the state in question is a democratic state, the claimant must do more than simply show that he went to see some members of the police force and that his or her efforts were unsuccessful. The more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.
In the United Kingdom, the respondents lodged complaints with the office of the Local Ombudsman, one police station and a social services agency. The Local Ombudsman's request for information as to further developments was not answered. It was not clear that the Local Ombudsman was asked to investigate the sexual abuse as opposed to the family's housing situation. The police referred the respondents to a social services agency, but this initiative was not pursued. The respondents also relied on media reports concerning matters of child abuse, but at the same time, the Government had in place a commission of inquiry to investigate the prevention of child abuse in England. The respondents did not do more than simply show that they went to see some members of the police force, and that their efforts were unsuccessful. Jane Doe's approach to two other agencies, especially where correspondence from government officials was not pursued, was not the additional effort required. The respondents' pursuit of their complaints was significantly less than that required where the state has democratic institutions such as those in the United Kingdom.
Similarly, the evidence concerning the absence of state protection in the United States was wanting. The respondents' evidence as to the absence of state protection in the United States was the deportation of Mr. Doe and the negative results of the intensive lobbying on his behalf. In deporting John Doe, the Government of the United States was enforcing its very strict immigration laws. The deportation of John Doe, despite its impact on Bob Smith's situation, was neither an act of persecution by the United States against Bob Smith nor evidence of the absence of state protection.
The CRDD erred in concluding that the facts constituted the "clear and convincing" evidence necessary to rebut the presumption of state protection. It was faced with determining "whether the facts satisfy the legal tests", a question of mixed law and fact and the standard of review was reasonableness. The evidence was substantially insufficient to rebut the presumption. In determining otherwise, the CRDD's decision was unreasonable or clearly wrong, or even made in a perverse manner and without regard for the material pursuant to Federal Court Act , paragraph 18.1(4)(d).
statutes and regulations judicially considered
Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Art. 9.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(4)(d) (as enacted by S.C. 1990, c. 8, s. 5).
Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) "Convention refugee" (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), (2) (as am. idem ), (3) (as enacted idem).
cases judicially considered
applied:
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321; Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.); Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532; 206 N.R. 272 (F.C.A.).
referred to:
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; (1998), 160 D.L.R. (4th) 193; 226 N.R. 201; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20.
APPLICATION for judicial review of CRDD's determination that the respondents were Convention refugees based on the conclusion that there was "clear, convincing" evidence rebutting the presumption of state protection. Application allowed.
appearances:
Sally E. Thomas for applicant.
Raoul S. Boulakia for respondents.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Raoul Boulakia, Toronto, for respondents.
The following are the reasons for order rendered in English by
Lutfy J.: The respondent Bob Smith,1 14, is a citizen of the United States and the United Kingdom. He has been a victim of ongoing sexual abuse. The principal aggressor was his natural father. The Minister of Citizenship and Immigration seeks judicial review of the determination by the Convention Refugee Determination Division that the respondents Bob Smith, his mother Jane Doe and his stepfather John Doe are Convention refugees.
Background
Jane Doe is a citizen of the United States where she married Bob Smith's natural father, a citizen of the United Kingdom, in 1983. Bob Smith was born in 1984 in the U.S. The family moved to the United Kingdom in 1985.
Shortly thereafter, Jane Doe discovered that her son was being sexually abused by his natural father. The couple separated but the sexual abuse continued during Bob Smith's visits with his father. There is some evidence that the child's paternal grandparents were also involved in committing the abuse.
In 1987, Jane Doe began a relationship with John Doe. Both were survivors of child abuse. John Doe had been dependent on drugs and alcohol and, in 1979, he was convicted of possession of cannabis. This conviction, without detracting from the essential issue of the pain and suffering caused by the sexual abuse of Bob Smith, would prove to be pivotal in the circumstances which bring the respondents to Canada and their present predicament.
Jane and John Doe became vocal advocates for victims of sexual abuse. They met a third person, himself a victim of child abuse, with whose co-operation Jane Doe approached governmental officials in the United Kingdom in 1991 and 1992 to protect Bob Smith from further mistreatment by his natural father and the latter's parents. These efforts did not change the situation.
In March 1992, in an attempt to end the natural father's visiting rights, and apparently upon the advice of American embassy officials, Jane and John Doe moved with Bob Smith to the United States where the couple married one year later. They took up residence in St. Paul, Minnesota, close to where Jane Doe was raised.
In September 1993, as part of his application for permanent residence in the United States, John Doe disclosed his drug conviction in 1979 in the United Kingdom. This conviction resulted in his deportation to the United Kingdom in July 1994, despite intense lobbying on his behalf with U.S. administration and congressional officials.
Some weeks later, apparently acting on a suggestion made by the Assistant Attorney General (Office of Legislative Affairs) of the U.S. Department of Justice, Jane Doe moved with her son Bob Smith to Thunder Bay, Ontario. The family was reunited when John Doe entered Canada approximately one month after his deportation to the U.K. The three respondents sought refugee status in Canada in September 1994.
Jane Doe has heard that Bob Smith's natural father has died but has not been able to confirm this information.
This brief chronology of events does not do justice to Bob Smith's current dire situation. The record discloses many contemporary medical reports setting out his severe mental health challenges as the result of both the abuse he suffered and the uncertainty as to his legal status in the United Kingdom, the United States and Canada.
The tribunal decision
The tribunal first considered Bob Smith's refugee claim against the United Kingdom and concluded that:
" his particular social group in the U.K. may be characterized as "young children who are victims of incest";
" his "victimization was not only prejudicial to his dignity and well-being but also to his life" and that this violation of his rights constitutes "persecution" within the meaning of the definition of "Convention refugee" [Immigration Act , R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1)];
" the evidence concerning state protection in response to his victimization and to others who have suffered child abuse provides "clear and convincing proof that the U.K. failed to extend to him adequate and effective protection"; and
" the sexual abuse he suffered from early childhood constitutes "atrocious treatment which forms the basis for compelling reasons" under subsection 2(3) [as enacted idem ] of the Immigration Act, in the event his father has died and the reason for his fear of persecution no longer exists.
The tribunal then considered Bob Smith's refugee claim against the United States and concluded that:
" his particular social group in the U.S. may be characterized as "victims of sexual abuse who have had their supportive environment destabilized";
" in view of his vulnerability as a child persecuted through sexual abuse, the destabilization of his family as the result of John Doe's deportation from the United States constitutes, "in these unusual circumstances", persecution; and
" the deportation of John Doe, without considering the situation of Bob Smith, "demonstrates clear and convincing evidence of a lack of state protection" by the United States for the child and a serious possibility of persecution should he return there.
The tribunal also accepted the refugee claims of Jane Doe and John Doe on the ground that "international legal requirements of family unity principles for this minor, determined to be a Convention refugee, require recognition of the parents as Convention refugees."
I will now turn to the state protection issue, the one first addressed by both counsel in their oral submissions.
The evidence concerning the absence of state protection
(i) the United Kingdom
In February 1991, Jane Doe filed a complaint, apparently on behalf of her son, with the Local Ombudsman of the Commission for Local Administration in England. There appears to have been some delay in processing her claim. In August 1991, a written request was forwarded to Ms. Doe for her advice as to what had "happened since you filled in the complaint form in February".2 There appears to have been no further substantive developments. In March 1992, Jane Doe received a letter in response to her complaint to the Ombudsman concerning her housing situation.3
In late 1991, police officers in north London refused to take Jane Doe's complaint4 concerning the abuse experienced by her son but referred the matter to a social services agency.5 She then met two officials of the Department of Social Services of the London Borough of Camden on February 21, 1992. It would appear that her housing and other personal needs were discussed at this meeting as well as Bob Smith's situation. One of these officials wrote to Jane Doe on February 24, 1992 to confirm their exchange and stated in part:
. . . we cannot leave [Bob] in abeyance until those other two issues have been resolved for you. I would, therefore, ask you to reconsider, and ring me or a colleague . . . in order to make a time during which we can talk about the incident of sexual abuse on [Bob].
You said at our meeting that you were worried that we may have been thinking of "taking [Bob] away from you". That is furthermost from our minds. As [Bob]'s parent, you have the responsibility for bringing him up and making all the decisions that a parent should make for their child. That is why I am asking you to make contact with us so that we can discuss the incident you reported regarding [Bob] and how best we can help you and [Bob].
If we do not hear from you within the next couple of weeks we will assume that you do not wish to take the matter any further.6
Jane Doe and the person who was assisting her in seeking assistance have a different view of the meeting. For them, nothing was done by the agency. In her testimony, Jane Doe described her contact with the Department of Social Services as follows:
CLAIMANT #2 . . . That's when I did report this abuse. It went to the police and it went to social services. I was told that if I did not come in there by myself, no support, no lawyer, without the child, without the eyewitnesses . . . Because there were three witnesses to the incest, right?
. . .
CLAIMANT # 2 . . . They insisted that the child not be there. It completely deviates from every British guideline about reporting child abuse. Everyone that knows about it, everyone who has seen it, is supposed to be there. The social services and the police are both supposed to be there. All I was told was that you show up alone, if you don't show up alone there's a squad car coming to your house to pick you up.
COUNSEL What was the outcome of your efforts to complain about or follow through about the abuse that [Bob Smith] experienced from his dad? What was the outcome?
CLAIMANT #2 I ran. Hey, I mean, nothing. They would not . . . . At the time that I made my complaint, a formal complaint to the police, we had a case pending before the EC Court, alleging child abuse on the part of the local government because they placed him in unsafe housing.
. . .
CLAIMANT #2 . . . So the threat was made to me if I didn't follow the rules they would take [Bob Smith] away and make sure I stay homeless because I couldn't afford any other accommodation than what the government gave me. I didn't have any money. There hadn't . . . you know I wasn't getting . . . at that time I wasn't getting any alimony, any child support. The case had never gone to Family Court and subsequently the U.S. Embassy informed me not to go to Family Court.7
The respondents also relied on media reports8 to establish the lack of state protection in the United Kingdom concerning matters of child abuse. For the same purpose, the respondents cited passages from Childhood Matters: Report of the National Commission of Inquiry into the Prevention of Child Abuse, 1996. This Government report documents the extent of child abuse in the U.K., the difficulties in obtaining convictions, the problem in the way the legal system operates and the lack of financial resources to achieve the right level of services to ensure a reduction of the abuse and neglect faced by children.
(ii) the United States
For the respondents, the deportation of John Doe from the United States was carried out without regard to its impact on the fragile condition of Bob Smith and without consideration for the close relationship between the son and the stepfather and the general destabilization that would be caused to the family. In these circumstances, counsel for the respondent characterized this deportation as persecution of Bob Smith by the Government of the United States.
The deportation and the refusal by governmental authorities to allow Mr. Doe to remain within the United States is further characterized as clear and convincing evidence of the absence of state protection. In particular, the respondents rely on the letter of October 5, 1994 from the Assistant Attorney General of the U.S. Department of Justice to one of the two United States senators from Minnesota. The letter, after setting out the negative impact of Mr. Doe's drug conviction in the U.K. on his application for permanent residence in the U.S., states in part:
As a possible means of reuniting [Mr. Doe] with his family, perhaps [the Does] could reside in Canada, near the relatives of Ms. [Doe]. As a British subject, Mr. [Doe] appears eligible for landed immigrant status there. In addition, if he were to become a landed immigrant in Canada, he would then be eligible to file for permission to apply for admission to the United States (see enclosed Form I-192).
The U.S. laws for immigrants allow a waiver only for a single conviction of simple possession of up to 30 grams of marijuana for certain relatives of citizens of the United States or lawful permanent residents. Convictions for any other offence, or for any other drug conviction, may not be waived. The convictions of Mr. [Doe] do not fall within the parameters of this waiver.9
In short, the respondents' evidence of the absence of state protection in the United States is the deportation of Mr. Doe and the negative results from the intensive lobbying on his behalf as expressed in the correspondence from the Assistant Attorney General.
In concluding that the U.S. failed to protect Bob Smith, the tribunal considered the deportation and its impact on the child as a failure to take into account the latter's best interests. While acknowledging that states may be permitted to deport children, the tribunal focussed on the best interests of the child and, in this regard, referred to paragraph 9(1) of the U.N. Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3]:
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents or where the parents are living separately and a decision must be made as to the child's place of residence.
Analysis
In Canada (Attorney General) v. Ward,10 the Supreme Court of Canada required the person seeking refugee status to advance "clear and convincing"11 evidence of a state's inability to afford protection. In the words of the Court, "[a]bsent a situation of complete breakdown of state apparatus, . . . it should be assumed that the state is capable of protecting a claimant."12
The quantum of clear and convincing evidence required to rebut the presumption of a state's ability to protect will depend on its democratic processes. In Minister of Employment and Immigration v. Satiacum,13 the alleged fear of persecution was the risk to the life of an American Indian chief, convicted but not yet sentenced, if incarcerated in a U.S. federal prison. The Court of Appeal, in commenting on the Immigration Appeal Board's assessment of the trial resulting in the conviction, concluded that, in the absence of exceptional circumstances, Canadian tribunals must assume a fair and independent judicial process in a foreign country. In a democracy such as the United States, with a free and independent judicial system, it would be necessary to impeach substantially the relevant jury selection process or the independence and fair-mindedness of the judiciary.14
The decision in Satiacum was considered with approval in Ward. After completing its analysis of Satiacum, the Supreme Court explained further the purpose of the presumption of a state's ability to afford protection in these words:
Although this presumption increases the burden on the claimant, it does not render illusory Canada's provision of a haven for refugees. The presumption serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant. Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already. [Emphasis added.]15
In Kadenko v. Canada (Solicitor General),16 the Court of Appeal revisited the issue of state protection and set out the refugee claimant's burden of proof in terms of the "level of democracy" in the country in question:
Once it is assumed that the state . . . has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so . . . .
. . .
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.17 [Emphasis added.]
The issue, therefore, is whether there was clear and convincing evidence to rebut the presumption of state protection for Bob Smith in the United Kingdom and the United States.
In the United Kingdom, the respondents lodged complaints with the office of the Local Ombudsman, one police station and a social services agency. The Local Ombudsman's request for further developments was not answered. Neither the personal information forms nor the oral testimony disclose clearly that the Local Ombudsman was asked to investigate the sexual abuse as opposed to the family's housing situation although Jane Doe vaguely suggests a linkage between the two issues. The police referred the respondents to the social services agency and its correspondence indicates that this initiative was not pursued. There is no other significant evidence of administrative or legal action sought to protect Bob Smith from his natural father.
The tribunal decision also refers to media reports concerning cover-ups of child abuse, particularly where members of the establishment were involved. In one instance, the journalist concludes that the concern is "about society that refuses to give the most vulnerable children in its midst the care and protection they deserve."18 At the same time as these reports, however, the government had in place a commission of inquiry to investigate the prevention of child abuse in England.
The respondents' personal efforts do not meet the threshold set out in Kadenko: "the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful."19 The respondents argue that they did more than seek the assistance of the police. In a literal sense, this may be true. However, Jane Doe's approach to two other agencies, especially where correspondence from government officials does not appear to have been pursued, is not the additional effort required by Kadenko. I have reviewed the oral testimony and the respondents' lengthy personal information forms. The respondents' pursuit of their complaints, on the evidence before the tribunal, is significantly less than that required where the state has democratic institutions such as those in the United Kingdom. The other documentary evidence, in its totality, speaks to a government attempting to address, perhaps imperfectly, the serious problem of child abuse in the U.K.
Similarly, the evidence concerning the absence of state protection in the United States is wanting. The letter of the U.S. Assistant Attorney General, in establishing the linkage between John Doe's criminal record and his deportation, acknowledges that the "United States has very strict immigration laws concerning those with drug convictions".20 The attention afforded to this case at the very senior levels of the U.S. Department of Justice speaks to the efficacy, at least to a certain degree, of the respondents' lobbying efforts, even though the result was not the one they had sought. In deporting John Doe for a 1979 drug conviction, the Government of the United States was implementing its "very strict" immigration laws. John Doe's drug conviction and his deportation from the U.S., difficult as the consequences may have been for his wife and stepson, did not make a Convention refugee of Bob Smith. Again, there is no other significant evidence of the absence of state protection. The tribunal's reliance on the U.N. Convention on the Rights of the Child could not, in any legal sense, alter this evidentiary gap. The deportation of John Doe, despite its impact on the situation of Bob Smith, cannot be characterized as an act of persecution by the United States against Bob Smith nor as evidence of the absence of state protection.
In my view, the tribunal has drawn erroneous conclusions concerning the absence of state protection in the U.K. and in the U.S. on the basis of its analysis of the oral and documentary evidence. That evidence falls substantially short of the burden of proof required of the respondents according to Ward, Satiacum and Kadenko. It was not open to the tribunal, on the facts in this case, to conclude that the respondents had established the "clear and convincing" proof required to rebut the presumption of state protection.
Neither counsel focussed on the applicable standard of judicial review. Here, of course, the tribunal appropriately considered Ward and Kadenko. Also, its summary of the facts was not flawed. The tribunal erred, however, in concluding that the facts constituted the "clear and convincing" evidence necessary to rebut the presumption of state protection. If the tribunal's determination represents an error in law, the standard of review is correctness.21 In my view, the tribunal was not faced with a pure question of law. It "forged no new legal principle"22 on the issue of state protection. Some other standard of review must apply.
If the tribunal's finding of the absence of state protection represents an erroneous finding of fact, the standard of review is at the higher end of the spectrum of deference owed to the tribunal. Again, however, I do not think that the tribunal was faced with a pure question of fact. Its findings of fact had to be assessed against a certain legal test: were these facts "clear and convincing" evidence? If the tribunal erred in determining "whether the facts satisfy the legal tests", that is a matter of mixed law and fact and the standard of review is reasonableness.23 This is the standard that I believe is applicable in this case. Even here, where some deference is owed to the areas of this board's expertise24 and where I am not simply to substitute my decision for that of the tribunal,25 I have concluded that my intervention is both necessary and fully warranted. The evidence was simply insufficient, and substantially so, to rebut the presumption. The tribunal determined otherwise. In so doing, its decision is at least "unreasonable" or "clearly wrong".26 If I have incorrectly identified the standard of review, I have no hesitation in concluding, pursuant to paragraph 18.1(4)(d) of the Federal Court Act,27 that the tribunal's finding of no state protection in the United Kingdom and the United States, on the basis of the slim evidence in this case, is one which was made in a perverse manner and without regard for the material.
This Court's conclusion concerning state protection resolves the application for judicial review. It is not necessary to consider further the tribunal's determination concerning Bob Smith's particular social group, his persecution in the U.K. and the U.S. and whether the principle of family unity would qualify his mother and stepfather as Convention refugees. Similarly, as the tribunal could not properly determine that Bob Smith was a Convention refugee, the issue of the cessation of his status pursuant to subsections 2(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1] and (3) of the Immigration Act need not be reviewed.
This application for judicial review will be granted. The decision of the Convention Refugee Determination Division will be set aside and the matter will be referred for redetermination by a differently constituted panel. Counsel may file written submissions concerning the certification of a serious question within 14 days of the date of these reasons.
1 An order of October 7, 1997 sealed this file and amended the style of cause to protect the real identity of the respondents.
2 Tribunal Record, at pp. 541 and 549.
3 Tribunal Record, at p. 540.
4 Tribunal Record, at p. 820.
5 Tribunal Record, at p. 811.
6 Tribunal Record, at p. 547.
7 Tribunal Record, at pp. 811-813.
8 Tribunal Record, at pp. 287, 288, 290, 593 and 623.
9 Tribunal Record, at pp. 249-250.
10 [1993] 2 S.C.R. 689.
11 Ibid., at pp. 724 and 726.
12 Ibid., at p. 725.
13 (1989), 99 N.R. 171 (F.C.A.).
14 Ibid., at pp. 175-177.
15 Supra, note 10, at p. 726.
16 (1996), 143 D.L.R. (4th) 532 (F.C.A.).
17 Ibid., at pp. 533-534.
18 Tribunal Record, at p. 290.
19 Supra, note 17.
20 Supra, note 9.
21 ;Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at p. 1019.
22 ;Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at p. 771.
23 Ibid., at pp. 766-767. In referring to Southam Inc. concerning the standard of review, I am mindful that the Supreme Court of Canada was considering a statutory appeal and not an application for judicial review as is this proceeding.
24 In Pushpanathan, supra, note 21, at p. 1017, Bastarache J. described the expertise of the Convention Refugee Determination Division as follows: "The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin."
25 See Kadenko, supra, note 16, at p. 535.
26 Southam Inc., supra, note 22, at pp. 778-779.
27 R.S.C., 1985, c. F-7 [s. 18.1(4)(d) (as enacted by S.C. 1990, c. 8, s. 5)].