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Wednesday, October 21, 2009

Memorandum of Argument: Min. of Citizenship & Immigration and Brandon Huntley




Transcript of the Memorandum of Argument: Minister of Citizenship and Immigration (Mr. Jason Kenney) vs. Brandon Huntley.

Why We Are White Refugees response: Official response to Canadian Minister of Citizenship, Immigration and Multiculturalism on the Brandon Huntley case, by Mike Smith






FEDERAL COURT


BETWEEN:


THE MINISTER OF CITIZENSHIP AND IMMIGRATION [JASON KENNEY]


Applicant


and


BRANDON CARL HUNTLEY


Respondent


APPLICANT'S MEMORANDUM OF ARGUMENT


PART I - STATEMENT OF FACTS


1. This is an application pursuant to s.72 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (‘IRPA"), for leave to commence an application for judicial review under the Federal Courts Act, R.S.C. 1985, c. F- 7 of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board'), dated August 27, 2009, in which the Board determined that the Respondent is Convention refugee.


2. The Respondent, a citizen of the Republic of South Africa, first came to Canada under a work permit in June 2004. The permit allowed him to work as a carnival attendant. He returned to South Africa in October 2004 when his work permit expired.


Reasons for Decision, Application Record, pp. 6-7


3. On June 30, 2005, the Respondent returned to Canada, again with a permit which allowed him to work for the same carnival company. That permit expired on December 31, 2006.


Reasons for Decision, Application Record, p. 7


4. After the expiration of his permit the Respondent remained in Canada illegally, that is, until he applied for protection as a Convention refugee on April 3, 2008. His claim was heard by the Board on August 18, 2008; a decision granting him Convention refugee protection was issued by the Board nine days after the hearing.


Reasons for Decision, Application Record, p. 7-8


5. In determining that the Respondent is a Convention refugee, the Board accepted the following:


a) that the Respondent had been the victim of racist attacks on at least six occasions in South Africa, dating back to 1991;


Reasons for Decision, Application Record, p. 19


b) that the Respondent's failure to report any of the alleged attacks on him to the South African authorities is justified in that the South African police and other law enforcement agencies are dominated by the black majority and are not interested in protecting whites, who were victims of "genocide";


Reasons for Decision, Application Record, p. 19


c) that the Respondent is a victim of persecutory treatment in that he had been denied economic opportunity because of his race under South Africa's affirmative action policy, which was introduced in the late 1990s to help blacks and other minority racial groups whose economic progress had been greatly curtailed under the apartheid regime;


d) that the Respondent would not be able to re-locate anywhere within South Africa because as a white person he would "stick out like sore thumb" anywhere in the country;


Reasons for Decision, Application Record, p. 19


e) the Respondent's return to South Africa after his first visit in 2005 is not evidence of lack of subjective fear because he did not know how to make a claim; and,
Reasons for Decision, Application Record, p. 14


f) that the Respondent's failure to make a claim at the earliest opportunity is excusable in view of other efforts he made to regularize his stay in Canada, such as marrying a Canadian citizen and applying to join the Canadian Armed Forces; and,


Reasons for Decision, Application Record, p. 15


PART II - POINTS IN ISSUE


6. Whether there is an arguable issue of law or fact, or a combination of both, upon which the proposed judicial review application might succeed.


PART III- SUBMISSIONS


A. INTRODUCTION


7. The Minster submits that the Board committed a number of errors, which either individually or in combination, furnishes the basis for granting leave. These are:


a) the Board erred in its finding that the Respondent rebutted the presumption of state protection;
b) the Board ignored evidence crucial to the determination it was required to make;
c) the Board erred in equating random acts of violence and criminality which the Respondent claims to have experienced in South Africa with persecution due his race; and,
d) the Board failed to properly assess whether the Respondent lacks subjective fear of persecution in view of his delay in making a claim after he arrived in Canada and his earlier return to the alleged persecutory environment after his first visit to Canada in June 2005;,


B. THE BOARD'S STATE PROTECTION ANALYSIS IS FLAWED AND UNSUPPORTABLE


8. It is trite that international refugee law and the protections offered by IRPA are designed to come into play only in situations when the protection one expects from the state authorities in one's country of nationality is unavailable. Therefore, absent a situation of complete breakdown of state the apparatus, it is generally presumed that a state is able to protect its citizens. This presumption "serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant."


Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689


Thabet v. M.C.I. (1998), 160 D.L.R. (4th) 666 (F.C.A.) at para. 28.


Canada (M.E.l.) v. Villafranca (1992), 18 1mm. L. R. (2d) 130


12. This view was affirmed by the Federal Court of Appeal in Camillo in which the Court stated that:


A refugee who claims that the state protection is inadequate or non-existent bears the evidentiary burden of adducing evidence to that effect and the legal burden of persuading the trier of fact that his or her claim in this respect is founded. ... As for the quality of the evidence required to rebut the presumption of state protection, the presumption is rebutted by clear and convincing evidence that the state protection is inadequate or non-existent.


Camillo v. Canada (M.C.i), [2008] F.C.J. No. 399, para. 38


13. Further, the Respondent's explanation for not reporting any of the alleged attacks on him is unsupported by the evidence. He claimed that he did not report any of the alleged attacks on him to the South African police or law enforcement agencies because he knew of other instances where the reports of other white people to the police "got lost in the system". The Board accepted that the Respondent did not report any of the alleged attacks on him because majority of the police are blacks who are not interested in protecting whites. The Board's finding here is flawed and an unsupportable for the following reasons.


Reasons for Decision, Application Record, p. 7


14. First, even if one accepts the Respondent's claim that the South African police are not interested in protecting whites, it still remains that the first two attacks on the Respondent occurred in 1991 and 1992[1] when white minority rule under apartheid was still in place in South Africa.[2]


[1.] Although the Board states that the first two attacks on occurred in 1991 the Respondent writes in his PIF Narrative that the second attack on him occurred in 1992.


[2.] See 1992 count Report on Human Rights for South Africa jointly issued by Committee on Foreign Affairs of the U.S. House of Representatives and the Committee on Foreign Relations of the U.S. Senate. Application Record, p. 275


The Respondent's failure to report the attacks on him is not explained by his alleged belief that the South African police were not interested in protecting whites. The police and other major internal security services were controlled by the apartheid state whose raison d'ĂȘtre was the protection and perpetuation of the privileged position of the white minority and the suppression of the democratic aspirations of the Black, Indian and ‘Coloured' majority population.


15. There was no evidence before the Board on which it could have reasonably concluded that the white internal security regime that was in power at the time in South Africa would have not been interested in protecting a white person who had allegedly been assaulted by blacks.[3] Thus, the Respondent's failure to report the attacks on him in 1991 and 1992 when apartheid was still in force in South Africa ought to have been considered by the Board in its state protection analysis and the failure to do so constitute a reviewable error.


[3] South Africa's first democratic elections took place in 1994.


16. Second, the Respondent's failure to report any of the alleged post-apartheid attacks on him because of his belief that the South African police are not interested in protecting whites does not withstand scrutiny. Indeed, his own family seems to have had no difficulty in reporting to the same police service the alleged robbery in 2005 in which the robbers stole a TV set, some clothes and some money from the Respondent's father's house. The police not only responded to his father's complaint but also investigated the crime, although no one was charged in the end. This, however, is not evidence of lack of, or the absence of, effective state protection, for as Pelletier, J. (as he then was) noted in Zhuravlvev [A]II policing activity is bound to encounter failures, particularly in a democratic state. Even in Canada, random acts of vandalism or violence seldom yield convictions."


Zhuravlvev v. Canada (M.C.l.), 2000 4 F.C. 3, para. 19


17. Thus, Respondent's own family's complaint and the response of the police undercut his assertion and the Board's finding that the South African police cannot be counted on to protect whites. This aspect of the Respondent's evidence was ignored by the Board.


18. The Respondent's failure to make a single report to the police, the Minister submits, is inconsistent with the onus on him as set out in the Supreme Court of Canada's decision in Ward and in the Court of Appeal's reiteration of the Ward principles in numerous cases since. Coming as he does from a democratic country and with evidence that at least on one occasion when his family sought help the police were responsive, the Respondent failed to discharge the heavy burden of showing that he was not required to seek protection from his own country before coming to Canada.


As discussed below, the Board's rationale for overlooking this flaw in the claim is itself troublesome and erroneous, and strongly favours the granting of leave.


19. More fallacious still is the logic on which the Board's analysis about the propriety of the Respondent's failure to seek state protection is based. The Board seems to suggest that if a claimant is not the same race or ethnicity as the members of the police or law enforcement service then the duty to seek protection is somehow relaxed, even where, as in this case, there is no credible evidence of the police's refusal or unwillingness to protect. Although the Board does not explicitly say so, its acceptance of Respondent's claim that he did not trust the South African police because a majority of them are black conveys this rather disturbing view. This view is unsupported by international law or Canadian jurisprudence; it rests largely on the Board's jaundiced assessment of the country conditions evidence to which we turn.


C. THE BOARD'S ASSESSMENT OF THE EVIDENCE IS UNREASONABLE AND PERVERSE


20. In its acceptance of the evidence of the witness Laura Anne Kaplan as a true reflection of the country conditions in South Africa, the Board wrote that her
evidence was the lifeline for the claimant's claim. She brought to the hearing, from her own personal experience, a vivid and detailed account of what is taking place in South Africa today visĂ -vis the African South Africans and the white South Africans and the indifference of the mainly African South African police force to protect them. White South Africans, she alleges, are no longer welcome in South Africa.


Reasons for Decision, Application Record, p. 14


21. One is left with the conclusion that the Board found her credible and accepted her evidence as true, in the absence of an explicit statement on her credibility and in view of the Board's finding that her evidence was the "lifeline" for the Respondent claim.


22. Among the witness's account of the state of affairs in South Africa are the following assertions, all of which the Board must be taken to have accepted:



  • that the South African police, which is mainly black, are "corrupt and in cohoots with the criminals" who attack whites (para. 49);

  • that all "African South Africans hate whites" due to the injustices of the apartheid regime. All whites feel the "hatred of the African South Africans towards them". All blacks hold all whites equally responsible for apartheid and want whites "eradicated and stomped on like ants" (paras. 45-46); and,

  • that a mass genocide of white South Africans by the black majority is occurring in South Africa (para. 68).


23. The Board's acceptance of this witness's statements and assertions, which were without any objective evidentiary foundation, epitomizes the unreasonableness of the decision at issue in this application and the need for this Honourable Court's intervention.


a) No Evidence to Support Statements about Attitude of Black South Africans


24. There is no evidence to support the witness Laura Anne Kaplan's statements about the general attitude of black South Africans towards their white compatriots. The Board's acceptance of her evidence supports the Ministers submission on the unreasonableness of the Board's decision.


25. The Board cloaks the witness's evidence in the garb of credibility without any critical analysis, leaving the reader with the impression that the witness's statements are reflective of the feelings and beliefs of all black South Africans; the evidence does not lend credence to such assertions. In neither the country condition documents from credible and trustworthy sources such as Amnesty International, Human Rights Watch, US State Department nor the newspaper articles submitted on the Respondent's behalf is there any mention of a general animus among all blacks towards whites and a desire to have whites "eradicated and stomped on like ants."


26. By giving credence to the witness's own personal and unsupported beliefs, and by characterizing the witness's overall evidence as "lifeline" for the Respondent's claim, the Board leaves the impression, whether intended or not, that it accepted these unsubstantiated assertions and based its decision to bestow Convention refugee designation on the Respondent on those assertions. The Minister submits that this is unreasonable and perverse, and constitutes a reviewable error.


b) No Evidence of Genocide


27. The Board's finding of genocide against white South Africans, based on the witness's testimony, is not supported by the documentary evidence. Although the evidence shows the emigration of many white professionals from South Africa in the post-apartheid years, it also shows that there is considerable movement of foreign nationals such as British citizens to South Africa. Indeed, the evidence states that the global financial crises has "slowed down the high rates of whites emigrating overseas and has led to increasing numbers of whites returning to live in South Africa." The same evidence before the Board reveals that number of British citizens in South Africa since 2003 has increased by up to 50%. Even if one makes allowance for the possibility that all these people are not white, it still suggests that some white people have no difficulty moving to or residing in South Africa.


Application Record, pp. 83-84


28. It is certainly doubtful that these whites, whether citizens or expatriates, would make that country their new home or return to it after their travels if, as the Board appears to have accepted, that there is an ongoing mass genocide of white South Africans by the black majority. This evidence shows that at the very least, the Board's assessment of the prevailing conditions in South Africa is incomplete and misleading, and therefore unreasonable.


c) Appraisal of South Africa's Affirmative Action Policies


29. The Minister submits that the Boards appraisal of the South Africa's affirmative action policy as part of its assessment of country conditions constitutes another reviewable error. The Board appears to believe that the affirmative action in favour of blacks and other racial groups constitutes state-sponsored persecution. That is an error of law. Both the Respondent and the witness Laura Anne Kaplan in their testimony blamed their respective failure to find work or progress in their career after democratic rule was instituted in South Africa on the government's efforts to ensure that the work force was reflective of the racial makeup of the country.


Reasons for Decision, Application Record, p. 10


30. As described in the decision, the affirmative action policy seeks to ensure that black South Africans and other underrepresented racial minorities are adequately represented in the workforce. There is nothing offensive to Canadian values or the principles which inspired the Convention in this description, Indeed, Canadian acceptance of programmes aimed at ameliorating the condition of disadvantaged people is reflected in section 15(2) of the Charter, which precludes from the ambit of equality guarantee of section 15(1) any "law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." The Supreme Court of Canada in its recent decision in Kapp upheld the federal government's fishing regulation which allowed aboriginal fishers the chance to fish for salmon in the Fraser River and to sell their catch before fishing was opened to other general public.


R. v. Kapp, [2008] 2 S.C.R. 483


31. The Board's failure to cite any evidence from which one might conclude that South Africa's affirmative action policy reflects an animus or reprisal against white South Africans shows the perversity of its findings. The Board notes that businesses have been destroyed and that 20% of South Africa's white population have left the country since the end of the apartheid regime.


Reasons for Decision, Application Record, p. 17


32. That statistic, even if accurate, does not support the Board's view that the affirmative action policy is persecutory; it only suggests that the social changes afoot in South Africa are resulting in considerable social disruption; such a disruption is certainly understandable in view of the decades of the minority rule and the undeniable harm it probably caused the vast majority of that country's citizens.


33. The Board's focus on South Africa's affirmative action policy and its impact on whites is all the more unreasonable because there is no credible evidence that this Respondent was ever prevented from advancing in his career due to his race. Even if one accepts that the affirmative action policy has limited the career advancement and/or job opportunities for some white South Africans it is still incongruous that a high school graduate with the Respondent's work experience - a bartender, sales technician, parking lot attendant and cleaner - has been denied any opportunities commensurate with his qualifications.


d) Focus on White Farmers Unreasonable as the Respondent is not a Farmer


34. In the assessment of country conditions, the Board focuses on the conditions of white farmers in South Africa. This is irrelevant given that the claimant is not a farmer. The Board implicitly draws the inference that the conditions of farmers support the witness Ms. Kaplan's allegation of racially motivated genocide against white South Africans. This is not a reasonable inference. It is notorious that the situation of farmers in South Africa is a consequence of long history and specific circumstances. It is not reasonable to conclude that the plight of the farmers furnishes evidence of what the Respondent can expect upon return to South Africa. The Board's assessment of country conditions was therefore unreasonable.


Reasons for Decision, Application Record, p. 18


e) IFA Finding is Perverse


35. In principle, persecution in a given region will not be persecution within the meaning of the Convention if it may be reasonably expected that, having taken all of the circumstances into consideration, the claimant can move to another part of the territory where he or she will be protected or be beyond the reach of his or her persecutors.


Zaizali v. Canada (M.E.I), [1991] 3 F.C. 605, (F.C.A.)


Rasaratnam v. Canada (M.E.I.), [199211 F.C. 706, (F.C.A.)


36. In addition, the idea of an internal flight alternative ("IFA") is inherent in the definition of who is a Convention refugee. Claimants, who, notwithstanding their well-founded fears, are able to seek safe refuge within their own country, have no grounds for not re-locating. Accordingly, an IFA must be sought before a claimant seeks Convention protection status in this country, unless there is objective evidence showing that it is unreasonable for them to do so.


Thirunavukkarasu v. Canada (M.E.l.) [1994] 1 F.C. 589, at para. 2 (F.C.A.)


37. In Ranganathan the Court of Appeal, per Linden J.A., interpreted its decision in Thirunavukkarasu as establishing


....a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized.


Ranganathan v. Canada (M.C.i.), [2001] F.C. 164, at para. 15 (F. C.A.).


38. In view of the above jurisprudence, the Board's finding that the Respondent cannot return to South Africa because "he would stand out like a ‘sore thumb' due to his colour in any part of the country" is unreasonable and perverse, in view of the evidence that was before the Board. The evidence shows that white South Africans constitute about 10% of that country's total population, according to Statistics South Africa. The same evidence states that whites form a sizable minority in most of South Africa's major cities and urban centres, including of 23.9% of the population of Pretoria, 19.4% of the population of East Rand, 18.7% of Cape Town's population, and about 16% of both Port Elizabeth and Johannesburg's population.


Application Record, pp. 19, 82


39. The Board's statement on the inability of the Respondent to find refuge in any part of South Africa due to the colour of his skin cannot be reconciled with the above population figures. Surely, the white population of Pretoria and Cape Town for instance are not so tiny as to make them stand out or seem an oddity when they constitute 25% and 20% of the respective populations of those two urban centres. The finding that the Respondent would "stick out like a sore thumb" in any of the above cities and provinces shows the Board's flagrant disregard for the evidence, rendering the lEA finding not only unreasonable but also perverse.


D. ERROR IN EQUATING RANDOM ACTS OF VIOLENCE AND CRIMINALITY WITH PERSECUTION


40. The Board erred in equating to persecution the random acts of violence and criminality to which South Africans of all racial backgrounds experience in their day-to-day lives. This error is also linked to the erroneous assessment of country conditions. The Respondent complained of being a victim of crime on six occasions. His allegation was that these crimes were racially motivated. The only evidence supporting this conclusion in his evidence was the fact that the perpetrators allegedly used racial slurs in the course of committing the crimes. This is rather equivocal evidence as any robber in any context might use a racial slur without leading to the conclusion that the robbery is racially motivated crime.


Reasons for Decision, Application Record p. 6


41. That said, the Minister submits that even if the Court accepts that the alleged attacks on the Respondent were racially motivated, they nonetheless lack the persistent or systemic element required to constitute persecution. In order to draw that conclusion, one must look at the larger context of country conditions. The Board did so, but, for the reasons outlined above, it drew unreasonable conclusions from the evidence; its conclusions are certainly inconsistent with the prevailing view of the Court that random acts of violence or criminality do not constitute persecution or make one a protected person.


See: Prophete v. Canada (M.C.I.), 2009 FCA 31


42. It is indisputable that crime is prevalent in South Africa and victimizes all South Africans, irrespective of their race. For instance, the documentary evidence report that rape and other sexual crimes against women and young girls is a huge problem in South Africa, despite serious efforts by the government to combat it. Indeed, South Africa has one of highest rates of reported cases of rape in the world, even though the vast majority of such cases are apparently not reported to the police.4 In terms of armed robbery, the evidence shows that white South Africans are targeted because they live in predominately wealthy suburbs and neighbourhoods which are often surrounded by poorer residential areas5 in other words, the criminals target such neighbourhoods because they believe that its residents are wealthy, not out of racial hatred or animus per Se.


43. Regarding the crimes against white farmers which partly served as basis for the Board's finding of risk to whites in South Africa, the US DOS Report for 2008, which was part of the package of materials before the Board, states that "[D]espite concern among the farmers that they were targeted for racial and political reasons, studies indicated that the perpetrators generally were common criminals motivated by financial gain."6 This undermines the Board's conclusion that the attacks are part of reprisals by blacks against whites.


See Amnesty International 2008 Country Report for South Africa, Application Record, pp. 246-247 See Application Record, p. 84


[6] Application Record, p. 207


44. It bears reiterating that the evidence does not support conclusion the Board erroneously came to this case: that the prevalent violence and crime which blights the lives of all South Africans is either unique to whites or that when whites are targeted by criminals it is because of racial animus.


E. THE RESPONDENT'S RETURN TO SOUTH AFRICA SUGGESTS ABSENCE OF SUBJECTIVE FEAR


45. The Board tailed to properly consider whether the Respondent's return to South Africa after he first came to Canada undermines his alleged subjective fear of persecution. The jurisprudence holds that a claimant's return to the country of alleged persecution is incompatible with a subjective fear of persecution, or negates a well-founded fear of persecution.


Caballero v. Canada (M.E.L) [1993] F.C.J. No. 483


46. The Respondent claims that he was misled into believing that he could not make a claim because he did not speak French. The Board accepted this ludicrous explanation without any evidence as to who gave him this information or why he believed that proficiency in French was a requirement for making a claim. Indeed, there is no evidence that he made any effort whatsoever to ascertain the veracity of this information from a legal counsel, Citizenship and Immigration Canada, the Refugee Board itself, or from any other appropriate source such a community legal clinic.


Reasons for Decision, Application Record, p. 14


47. The Respondent's return to South Africa after his first visit to Canada in 2004 is inconsistent with his stated fear of persecution in that country. The Board's failure to critically examine the Respondent's reason for not making a claim during that 2004 visit to Canada, even though he claims to have been the target of racial attacks before that visit, constitutes a reviewable error.


F. THE BOARD ERRED IN ITS ASSESSMENT OF THE RELEVANCE OF THE RESPONDENT'S DELAY IN CLAIMING


48. It is trite that long delay in claiming refugee status is an important factor which the Board is entitled to consider in weighing a claim for refugee status". It is also accepted that delay, in certain circumstances, may indicative of lack of subjective fear of persecution, based on the rationale that someone who was truly fearful would claim refugee status at the first opportunity.


Heer v. M.E.I., [1988] F.C.J. No. 330 (C.A.)


Castillejos v. M.C.I., [1994] F.C.J. No. 1956


Hernandez Espinosa v. M.C.i., 2003 FC 1324 at para. 16


49. The Board erred in law in premising its acceptance of the Respondent's explanation for failing to claim refugee protection at the earliest opportunity on the fact that there was no other adverse credibility finding against him. It is not a prerequisite that there should be other adverse credibility findings against a claimant in order for the Board to draw an adverse inference from his/her delay to apply for protection. In other words, delay is a relevant factor that must be considered even where a claimant is otherwise credible.


Reasons for Decision, Application Record p. 15


50. Despite acknowledging that delay in making a claim is a relevant factor to consider in assessing the genuineness of a claimant's subjective fear, the Board nonetheless made the unreasonable finding that there was a justification for Respondent's delay in claiming. As stated earlier, the Respondent returned to Canada in June 2005. His permit expired in December 2006; he was therefore out of status from January 2007 onwards and had no basis for not applying for asylum. The Board recognizes this fact and tries to get around it by finding that Respondent's attempt to join the Canadian Armed Forces and his marriage to a Canadian after he was clearly out of status justifies his delay in that these efforts were somehow aimed at regularizing his stay in Canada.


Reasons for Decision, Application Record p. 15


51. Getting married or seeking employment with a government agency does not suffice as explanation for the delay to claim. Even if his marriage could have led to the regularization of his status in Canada, it would not have made him a Convention refugee. Further, the Respondent did claim refugee protection, in April 2008, before he separated from his spouse in December 2008, indicating that he knew that he could claim while married and that marriage did not regularize his status.


52. Worse, the Board's reliance on the Court of Appeal's decision in Cabellero for the proposition that in the absence of credibility finding a claimant's explanation he/she did not know that he/she could claim refugee status can be used to overcome a long delay in claiming is plainly wrong. That case does not stand for that proposition. The majority of the Court of Appeal in that case actually upheld the Board's finding that the appellants' return to Honduras and from the United States where they lived and delay in claiming was inconsistent with the fear of persecution in Honduras.


Reasons for Decision, Application Record p. 15


G. CONCLUSION


53. The Minister has met the test for the granting of leave because the above submissions and the accompanying materials raise an arguable issue of law or fact, or a combination of both, upon which the proposed application for judicial review might succeed; the materials further show that the Minister has a fairly arguable case and that there is a serious question to be determined.


Bains v. M.E.I. (1990), 109 N.R. 239 (F.C.A.)


PART IV - ORDER SOUGHT


54. The Minister requests that the Application for leave and for judicial review be allowed and the Board's decision set aside.


ALL OF WHICH IS RESPECTFULLY SUBMITTED


Dated at Toronto this Wednesday, September 30, 2009.


Bernard Assan
Of Counsel for the Respondent



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