Of course there was political pressure. If this had been a non-white applying, the ANC wouldn't have paid any notice but since this was a white man making the statement that the new ANC-utopia was all but a haven of brotherly love, the ANC regime immediately objected and only AFTER the objections from the South African government did the Canadian government announce that it would appeal. The time line of events is quite clear.
The Canadian government has rubbished Brandon Huntley's claims that it was pressurised into challenging his "white crime refugee" status by South African authorities.
Lawyers for Canadian Immigration Minister Jason Kenney maintain that the judgment that gave Huntley asylum, on the basis of the alleged persecution he suffered as a white South African, was so ludicrous that they could not let it stand.
IMM-4423-09
FEDERAL COURT
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
BRANDON CARL HUNTLEY
Respondent
APPLICANT'S REPLY MEMORANDUM
PART I - STATEMENT OF FACTS
[1] The Applicant relies on the facts as contained in the Application Recordand summarized in the Applicant's Memorandum of Argument.
PART II - POINTS IN ISSUE
[2] The two Affidavits sworn in support of the Respondent's position should be struck out, as they consist of matters not within the knowledge of the affiants and/or are irrelevant.
[3] There are serious and arguable issues to be tried in this application,upon which the proposed judicial review application might succeed.
PART III-SUBMISSIONS
A. PRELIMINARY MATTER - AFFIDAVITS SHOULD BE STRUCK OUT
a) Affidavit of Stefani Gude is irrelevant
[4] The Affidavit of Stefani Gude sworn on November 2, 2009 ("Gude Affidavit") should be struck out as it is irrelevant. The Gude Affidavit refers to newarticles and reactions of various persons to the Board's decision in this case. These matters are irrelevant as they all occurred after the Board's decision was made, and donot affect the errors made by the Board.
Gude Affidavit, Respondent's Record, pp. 1-5
[5] This application is for leave and judicial review of the Board's decision; the fact that this decision was reported in the media and generated interest in various quarters is irrelevant to the determination the Court is asked to make. In any event, the media reporting and comments made following the Board's decision cannot mean that the Board's decision should not be reviewed by the Court.
[6] Further, the affiant in paragraphs 4-6 the Gude Affidavit expresses opinions and makes assertions not within her knowledge, contrary to Rule 81 of the Federal Courts Rules and Rule 12(1) of the Federal Court Immigration and Refugee Protection Rules.
Federal Court Immigration and Refugee Protection Rules
JSOR/93-22, Rule 12(1)
Federal Court Rules, 1998, SOR 98/106, Rule 81
b) Affidavit of Amina Sherazee is irrelevant and argumentative
[7] Similarly, the Affidavit of Amina Sherazee sworn on November 2, 2009 ("Sherazee Affidavit") should be struck out or disregarded being irrelevant. It is based on the affiant's opinions and is argumentative; moreover, it does not show that the affiant has personal knowledge of the matters to which she deposes.
Sherazee Affidavit, Respondent's Record, pp. 25-26
[8] At paragraph 5 of her affidavit, the affiant Sherazee speculates as to the Minister's motives for applying for leave and for judicial review of the Board's decision. There is no evidence that she is privy to any discussion that led the Minister to seek leave. She therefore has no personal knowledge of the matter to which she speaks in her affidavit.
Sherazee Affidavit, para. 5, Respondent's Record, p. 26
[9] The inappropriate content and tone of the Sherazee affidavit is further underscored by the legal conclusions she draws, and indeed by the aspersion she casts on the Court. In paragraph 6, the affiant reproves the Minister's application as being founded on "political" consideration and devoid of "any visible legal principle." This Court has the sole privilege of pronouncing on the legal merits Minister's application. Such a determination is certainly outside the affiant's purview, irrespective of her legal training. An affiant has no place usurping the Court's proper role.
Sherazee Affidavit, paras. 5-6, Respondent's Record, pp.25-26
[10] In paragraph 7 of the Sherazee affidavit, the affiant cites some statistics about the percentage of leave applications that this Court grant in a given year without mentioning the source or explanation for the statistics. She goes on to say that it is "virtually unheard of that the Minister's applications are ever refused" by this Court. The inference a reader is invited to draw from this statement is that the Court favours the Minister when it comes to the granting of leave applications.
Sherazee Affidavit, para. 7, Respondent's Record, p. 26
[11] That the alleged success rate of Minister's applications might be because the Minister has a much higher standard in terms of which cases he seeks leave on, unlike the private bar, completely escapes the affiant. Instead, the affiant makes herself a spokesperson for the immigration bar by claiming that the private bar finds the difference between the Minister's alleged high success rate on leave applications, compared to the success rate of the private bar, "slanted and inexplicable." Again, this is does not belong in an affidavit, even if one overlooks the attempt to impugn the fairness of the Court.
Sherazee Affidavit, para. 7, Respondent's Record, p. 26
[12] In addition, paragraph 8 in its entirety is a simple recitation of the affiant's opinion and legal conclusions, which, as noted earlier, is within the Court's sole jurisdiction. As Justice von Finckenstein stated in Ly:
Except on motions, affidavits shall be confined to facts within the personal knowledge of the deponent: Rule 81(1), Federal Court Rules, 1998. The affidavit must be free from argumentative materials and the deponent must not interpret evidence previously considered by a tribunal or draw legal conclusions (Deigan v. Canada (A.G.) (1996),206 N.R. 195 (Fed. CA.); West Region Tribal Council v. Booth (1992), 55 F.T.R. 28; First Green Park Pty. Ltd. v.Canada (A.G.), [1997] 2 F.C. 845). If an affidavit does not meet these requirements, the application can only succeed if an error is apparent on the face of the record (Turcinovica v. Canada (M.C.I.), [2002] F.C.J. No. 216,2002 FCT 164).
Ly v. Canada (M.C.I.), 2003 FC 1184; para. 10
[13] The Minister takes the position that the affidavits put forward by the Respondent do not meet the requirements set out by this Court in various cases and must be either be struck from the record or completely ignored.
B. MINISTER'S ARGUMENTS IN REPLY
[14] The Minister relies in reply on the submissions contained in the Applicant's Memorandum of Argument filed in support of the application for leave and judicial review and makes the additional submissions.
a) The Board Accepted Laura Kaplan's Evidence as Credible
[15] The Court must reject as baseless the Respondent's attempt to divide into two neat compartments the evidence of Laura Kaplan on which the Board based its decision, and the rest of her evidence in which the Board did not consider in its decision. No where did the Board make the demarcation the Respondent is seeking, post facto, to impose on the decision. The Board stated that the "witness' evidence was the lifeline for the claimant's claim" because she "brought to the hearing, from her own personal experience, a vivid and detailed account of what is taking place in South Africa today..." The Board does not say in the entirety of the decision that it deemed as not credible or considered as unbelievable exaggeration the witness's preposterous testimony of widespread hatred by all blacks towards whites, or her ludicrous claim that whites are victims of on-going genocide, or any of the groundless statements attributed to her.
Reasons for Decision, para. 73, Application Record, p.14
[16] As indicated, in light of the Board's silence, the Court must reject the Respondent's argument (at paragraph 12 of his Memorandum of Argument) that the Board simply recited the witness's evidence and did not accept them as true or credible. It behoved the Board, as the trier of fact, to state in clear and unmistakable terms which evidence it considered credible, and which it deemed unbelievable.
[17] The failure to do that, coupled with its statement on the importance of the witness's evidence to the success of the claim, leaves the reader with only one conclusion - that it accepted the witness's entire evidence as credible. The Respondent has therefore not shown that the Board selectively relied on or believed only parts of the witness's evidence and rejected other parts of her evidence - in fact, there is no statement in the Board's reasons that it found any part of the witness's evidence not credible.
b) Standard of Review of Factual Findings is Reasonableness
[18] The standard of review of the Board's decision is that of reasonableness. As noted in Dunsmuir, the Court must inquire into the qualities that make the decision reasonable, referring both to the process of articulating the reasons and to the outcome. In the present case, the Board unreasonably repeated in its reasons the speculative beliefs and lurid allegations of the witness, Laura Kaplan, and delivered an outcome that was not supported by the documentary evidence.
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008SCC 9, para. 47
[19] S. 18.1{4)(d) of the Federal Courts Act provides that the Court may grant relief if a board "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" - this is a ground of review, not a standard of review.
Federal Courts Act, R.S., 1985, c. F-7, s. 18.1(4)
[20] The Minister submits that the Board's decision is unreasonable because it falls outside the range of "possible, acceptable outcomes which are defensible in respect of the facts and law." The facts of this case and the jurisprudence of this and other higher Courts both highlight the unreasonableness of the decision to grant the Applicant Convention refugee protection in Canada and the merits of the Minister'sleave application.
Dunsmuir, supra, paras. 47, 48. 52 and 53
c) Board's State Protection Finding Fundamentally Flawed
[21] As argued in the Applicant's Memorandum of Argument, in the Board's decision, there is no reference to, or consideration of, the Respondent's obligation to provide "clear and convincing evidence" of the South African government's inability or unwillingness to protect him. The Respondent never reported any of the alleged attacks against him to the South African authorities. The Minister maintains that had the Board properly turned its mind to the Respondent's failure to seek protection, even during the apartheid years when the first two or three on attacks allegedly occurred, it would have concluded that he had failed to rebut the presumption of state protection in South Africa with "clear and convincing evidence."
d) The Minister's Application is not an Abuse of Process
[22] There is no merit to the Respondent's contention that the Minister's application constitutes an abuse of process. The Respondent is arguing not only that the Minister should be precluded from seeking judicial review of a decision he considers unreasonable and flawed, but that the Court should be deprived of jurisdiction to entertain the Minister's application. This argument ignores the independence of the Court, and its ability to makes its own decisions.
[23] The Respondent makes speculative arguments about the motives of the Applicant in bringing this application; as noted above, the Respondent's supporting affidavits are based on speculations, arguments and untenable conclusions and should be struck out or given no weight. These affidavits do not provide a factual basis for the Respondent's arguments.
[24] USA v. Cobb, cited by the Respondent, is irrelevant to the present case because the facts in that case are significantly different from the facts at issue in this application. In Cobb, there was a factual basis for the findings of abuse of process - the appellants had been subjected to intimidating remarks from an American judge and attorney which called into question the integrity of the very extradition proceedings before the court. In the present case, there is no such factual background. The Respondent has manufactured a scenario that the Minister is appealing because of political pressure.
USA v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587
Respondent's Memorandum, paras. 19-20,
Respondent's Record, pp. 42-45
[25] There is no support for the Respondent's contention that leave not begranted because Minister's decision to seek leave constitutes an abuse of process. The allegation that the Minister's application for leave is the fruit of political pressure by the South African government is wholly unfounded. It was open to the South African government to publicly protest what it deemed, rightly in the Minister's view, as a ludicrous finding that it was presiding over the genocide of white South Africans or that all of its black citizens hate their white compatriots and want them eradicated (see paragraph 45 and 68 of Board's Decision). The Minister's decision to seek leave on the other hand is based on the evident legal and factual errors in the Board's decision outlined in his Memorandum of Argument.
Respondent's Memorandum, Respondent's Record, pp.42-45, paras. 19-20
e) The Rule of Law Dictates that the Minister Should be Heard
[26] The Minister's application discloses serious issues - it is for the Court to decide if these issues warrant the granting of leave. The rule of law dictates that the Minister, like all litigants before the Court, should be given a fair chance to be heard.
[27] Further, the rule of law mandates that decisions by the Court should bebased on facts, not speculation. The Respondent's argument that "it is more probable than not" that the Minister made this application as a result of pressure from another government lacks a factual basis.
Respondent's Memorandum of Argument, para. 23, Respondent's Record, p. 48,
[28] In any event, apart from his baseless speculation, the Respondent has not shown that there has been abuse of process or that the Minister's application lacks merit and should not be entertained by this Court. The Court's jurisdiction cannot be ousted by speculative arguments and unfounded accusations.
f) Costs should not be Awarded
[29] In accordance with Rule 22 of the Federal Courts Immigration and Refugee Protection Act Rules, the Respondent should not be awarded costs in this matter as there is no special reason for doing so. The cost provisions are intended to indemnify a party for costs related to the litigation before the Court and then only in special circumstances.
Federal Court Immigration and Refugee Protection Rules,
SOR/2002-232, Rule 22
Patelv. M.C.I. (1996), 108 F.T.R. 156
PART IV - ORDER SOUGHT
[30] The Applicant submits that serious issues are raised in this application which warrants the granting of leave, and respectfully requests that leave be granted.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Dated at Toronto this 10th day of November, 2009.
Bernard Assan
Of Counsel for the Respondent
John H. Sims, Q.C.
Deputy Attorney General of Canada
Per: Bernard Assan
Department of Justice
The Exchange Tower
130 King Street West Suite 3400, Box 36
Toronto, Ontario M5X 1K6
Tel: (416)973-0965 Fax: (416)954-8982
File: 14-596969
Solicitor for the Respondent
TO: The Registrar
Federal Court of Canada
AND TO: Rocco Galati
Barrister and Solicitor
Rocco Galati Law Firm
Professional Corporation
637 College Street Suite 203
Toronto, Ontario M6G 1B5
Tel: (416)536-7811
Fax: (416)536-6801
Solicitor for the Applicant
Sources: PDF: IMM-4423-09 [Commentary: IOL & I Luv SA]
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