‘Huntley accomplished ‘African White Refugee’ objectives’ - Russel Kaplan

Russell Kaplan
Former Attorney for Brandon Huntley

I have been contacted by reporters already who have asked me for my reaction to the Huntley ruling on November 24, 2010. Having gone through the entire refugee claim myself and through the entire judicial review proceeding (the “appeal”) with co-counsel Mr. Galati, here is my reaction.


Mr. Huntley had two objectives when he brought his refugee claim:

1. That he finds protection in Canada and
   
   
2. That he informs the world what a sickly place South Africa is for many white South Africans.

As far as his first objective is concerned, Mr. Huntley is still in Canada. He has an opportunity for a new hearing and also some other remedies that can ensure his safety in Canada.

As far as his second objective is concerned, in my view, he has succeeded. This case has contributed towards placing the plight of many white South Africans in South Africa on the world stage. Further, the court clearly and expressly stated that while the evidentiary foundation might have been lacking in Mr. Huntley’s case, in another case, a white South African could qualify for refugee protection. You need to go no further than paragraph 234 of the decision to realize this. For convenience, paragraph 234 is reproduced below:

[234] In addition, and as I have indicated, I have serious reservations about why this particular white South African came to Canada and, after a considerable delay, opted to claim refugee status. Once again, however, just because the Respondent’s circumstances may not qualify as persecution under section 96 of the Act does not mean that I am saying that other white South Africans could not so qualify.

As far as I am concerned, this statement has opened the door for other white South Africans to come to Canada or any other country that has signed the refugee Convention, to make a refugee claim and to be awarded protection if their particular facts and an evidentiary foundation qualify them for protection.

Russell Kaplan


» » » » [Source: Per Email: Henri Le Riche]

Court - Cour fédérale

Date: 20101124

Docket: IMM-4423-09

Citation: 2010 FC 1175

Ottawa, Ontario, November 24, 2010

PRESENT: The Honourable Mr. Justice Russell

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

and

BRANDON CARL HUNTLEY

Respondent

TABLE OF CONTENTS

• REASONS FOR JUDGMENT AND JUDGMENT
  
• BACKGROUND
  
• DECISION UNDER REVIEW
  
• ISSUES
  
• STATUTORY PROVISIONS
  
• STANDARD OF REVIEW
  
• ARGUMENTS
  
  • The Applicant
    
  • Preliminary issues
    
  • Affidavits
    
  • No abuse of process
    
  • Errors in the Decision
    
  • State Protection
    
  • Assessment of evidence was unreasonable
    
  • No evidence of genocide
  
  
• Affirmative action policies
  
• Focus on white farmers is unreasonable
  
  • IFA finding is perverse
    
  • Selective use of objective documentary evidence
    
  • Random acts of violence are not persecution
    
  • Absence of subjective fear
    
  • Delay
  
  
• The Respondent
  
  • Abuse of process
    
  • Re-weighing evidence
    
  • State protection
    
  • Factual findings
    
  • Persecution
    
  • Subjective fear
    
  • Costs
  
  
• ANALYSIS
  
  • General
    
  • The Respondent’s Oral Evidence
    
  • Examination by Mr. Kaplan
    
  • Objective Evidence of Racial Motivation
    
  • Subjective Fear
    
  • Reasons for Coming to Canada
    
  • Failure to Report to the Police
    
  • Delay in Making a Refugee Claim
    
  • Conclusions about the Respondent’s Personal Evidence
    
  • The Evidence of Ms. Lara Kaplan
    
  • Ms. Kaplan’s Personal Experiences
    
  • Ms. Kaplan’s Account of Third Party Attacks
    
  • Ms. Kaplan’s General Views
    
  • The Documentary Evidence
    
  • National Documentation Package
    
  • The RPD’s Findings
    
  • Conclusions on Merits
    
  • External Considerations
    
  • The Evidence of Interference
    
  • The Affidavit of Ms. Stefanie Gude
    
  • The Affidavit of Ms. Amina Sherazee
    
  • The Jurisprudence
    
  • The Remedy
    
  • Certification

REASONS FOR JUDGMENT AND JUDGMENT

[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD), dated August 27, 2009 (Decision), which granted the Respondent status as a Convention refugee pursuant to section 96 of the Act.

BACKGROUND

[2] The Respondent, Brandon Carl Huntley, is a white, male citizen of the Republic of South Africa (South Africa). He claimed refugee status on the basis of fear of discrimination, harassment and possible death because of his race. The Respondent reports having been attacked and assaulted by black South Africans on numerous occasions. His attackers used racial slurs.

[3] The Respondent first came to Canada on a work permit in 2004 to work as an amusement park attendant. He then returned to South Africa in November 2004 upon the expiration of his first work permit. The Respondent returned to Canada on another work permit in June 2005. That permit expired in December 2006.

[4] The Respondent remained in Canada illegally upon the expiration of his second work permit. He married Melani Crête, a Canadian citizen, in August 2007. He then applied for refugee status in April 2008. The Respondent's application was allowed. However, the Minister of Citizenship and Immigration (Applicant or Minister) now seeks to quash the Decision.

[5] The Respondent brought a motion on March 31, 2010 requesting that this matter be converted from an application to an action, or that the Minister be ordered to forward to the Respondent his reasons for commencing judicial review. Justice Yvon Pinard heard the Respondent's motion and issued an order on April 16, 2010 dismissing it.

DECISION UNDER REVIEW

[6] The RPD determined that the Respondent was a credible witness and accepted his evidence with regard to the attacks he had suffered. Moreover, the RPD determined that the Respondent's allegations of persecution of white South Africans were enhanced by the oral testimony of Ms. Lara Anne Kaplan, who is also a citizen of South Africa.

[7] Ms. Kaplan stated that "things started to shift to the disadvantage of the white South Africans" after Nelson Mandela's release from prison and his election as president. She said that part of the shift included an attempt to "get the formally (sic) underprivileged African-South Africans to move into the business world and start earning better money." This was known as Black Economic Empowerment (BEE). Moreover, Ms. Kaplan suggested that affirmative action in South Africa involves the use of different standards in order to allow black South Africans to attain positions of influence and power. According to the RPD Member, "[a]t the time, [the witness] was at the top of the corporate ladder. But some 12-13 years into her career, she noticed she was not receiving any further promotions and that ‘a lot of black people were coming in to take our place.'"

[8] Ms. Kaplan also noted two incidents in which she was accosted by black South Africans and threatened with a gun.

[9] The RPD noted Ms. Kaplan's belief that "[black South Africans] believe that all whites are equally responsible for apartheid and that ‘we should be eradicated and stomped on like an ant.'" She described the current situation in South Africa as being a "reverse apartheid", and claimed that all whites feel the hatred of black South Africans towards them.

[10] Ms. Kaplan alleged that the police in South Africa, who are themselves mainly Black South African, do not act upon crimes that black South Africans commit against white South Africans. It was the witness's view that this occurs because the police are "corrupt" and "in cahoots with the criminals." According to Ms. Kaplan, the police do not want to help white South Africans who are attacked. Because you are white, "you deserve it. [I]t's long overdue."

[11] Ms. Kaplan then described what happened to Robert Kaplan, one of her brothers. While Robert's son was asleep in the house, four black South African men broke into his house, apparently intending to harm his child. Robert pleaded with them not to harm his son and told them they could do what they wanted to him instead. Robert was then tied up, tortured, stabbed nine times, shot three times in the chest, burned with a hot iron and "left for dead." Robert survived this ordeal, although he required open-heart surgery and long-term intensive care.

[12] This incident was well-documented on the television and radio and in the newspapers. Ms. Kaplan stated her belief that the attack on Robert occurred because her brother was both white and wealthy. The RPD described the telling of this incident by Ms. Kaplan as follows:

During the course of [the witness'] testimony, she broke down and cried openly. That was to be expected. What I did not expect was to see counsel, Russell Kaplan, also break down and cry while she was describing the torture of her brother. It turns out that counsel, Mr. Kaplan, is also a brother of the witness and Robert's brother. He was also born in South Africa and came to Canada some years ago as an immigrant. I gather from what I took out of the evidence that he left South Africa for the same reasons as his sister; namely, the reverse apartheid attitude which prevails in that country.

Between 30 and 40 newspaper clippings were presented as evidence of life in South Africa. “One article exhibited was published in [the Daily Sun in 2004] by Africa Ka Mahamba. [It was] entitled ‘Taking from whites is not a crime’,” Kaplan said. The article quotes the leader of the “Uhuru cultural club” as telling youngsters who attended a Human Rights Day celebration to steal from whites because “it is the right thing to do”. [IRB Ruling: MA8-04910: Brandon Huntley]

[13] The RPD then considered the documentary evidence presented, including Daily Sun article by Africa Ka Mahamba entitled "‘Taking from whites is not a crime in SA,'" which reported that a leader of a Pretoria-based youth organization had condoned stealing from white people in the suburbs because "[t]he whites have stolen from us since 6 April 1652" and [t]aking from whites is not a crime because you repossess what belongs to you."

[14] Ms. Kaplan also provided the RPD with accounts of incidents about other people who had experienced psychological and physical damage as a result of attacks by black South Africans.

[15] One incident involved a woman's friend who, according to that woman, was shot to death for no reason "by scum-of-the-earth robbers" while waiting for his son to finish soccer training at a park. According to her, some black South African men were trying to rob a second woman of her cellular phone and, as they ran past, they shot the first woman's male friend in the neck. The RPD noted that Ms. Kaplan "has no doubt that he was shot simply because the victim was white and the black killers knew they would get away with it, scot free." In the words of the RPD, Ms. Kaplan opined that, "in any other country, a mass genocide ... on such a scale as is occurring against whites in South Africa would be considered genocide and crimes against humanity."

[16] The RPD then considered Ms. Kaplan's upbringing in a well-educated family. It noted: "[L]ittle did [the Kaplan family] expect that when Nelson Mandela came into power, that the government policies would shift to the extent that African South Africans were to become the masters and the white South Africans the servants, with all of its intended consequences."

[17] The RPD stated in its Decision that the "witness's evidence was the lifeline for the claimant's claim", and that she brought to the hearing a "vivid and detailed account" of what is occurring in South Africa with regard to white South Africans, as well as the indifference of the mainly black South African police force and its failure to protect them.

[18] The RPD then considered the Respondent's personal circumstances and noted that he had not sought refugee protection at the first opportunity. The RPD accepted that, on his first trip to Canada, the Respondent did not seek refugee status because he was not aware of the refugee system. Furthermore, on his second trip to Canada, the Respondent did not claim refugee status because he erroneously believed he was precluded from doing so because he does not speak French.

[19] The RPD noted that the Respondent had tried to join the Canadian Armed Forces to avoid returning to South Africa. The RPD also noted that "[h]e met his wife to be and fell in love with her. He married her believing that he could use her to help him get permanent status in Canada. He was to find out later that ‘she was not a nice woman.'" Consequently, he separated from her in or around December 2008.

[20] Although the RPD observed that a delay in making a refugee claim may affect the credibility of the claim, it found that, upon the expiration of the Respondent's work visa, he made attempts to solidify his stay in Canada by attempting to join the Armed Forces and by marrying a Canadian citizen. Accordingly, the RPD determined that the Respondent's "subjective fear of persecution remained constant and consistent up to and including the time he made his refugee claim."

[21] The RPD then considered country conditions in South Africa. It noted reports of serious human rights problems, including use of excessive force by the police, vigilante and mob violence and violence resulting from social, racial and ethnic tensions. The RPD noted the killings and violent crimes against white farmers and their families, which continue in rural areas.

[22] The RPD then considered some of the "reports" contained in the Respondent's Index of Documents, including such articles as M. Riordan-Bull Kleinmond's "Attacks have shown most of ANC to be racists" Cape Argus ( 31 May 2008) and David Bullard's "Loss of freedom creeps up on us like a face of wrinkles" Sunday Times (21 October 2007).

[23] The RPD went on to consider in more detail the murder of almost 2000 white farmers in South Africa, many of whom had also been brutally tortured. The RPD noted that "[s]ome victims have been burned with smoothing irons or had boiling water poured down their throats" and that "[t]his type of torture is consistent with the torture received by the witness' brother Robert." Pictorial evidence of some of these murders was included in the evidence before the RPD.

[24] The RPD found the following facts were proven on the evidence before it:

a. That the Respondent was attacked by black South Africans on "at least six or seven occasions because of his white skin";

b. That the Respondent "has scars on various parts of his body";

c. That Ms. Kaplan was attacked and threatened with guns by black South Africans "on two separate occasions because of the colour of her skin and perceived wealth";

d. That Ms. Kaplan's brother Robert, "who was tortured and shot by African South Africans and miraculously lived, now has major physical and psychological problems";

e. That Ms. Kaplan's brother Robert and her father "survived only because of their wealth, being able to install electronic and guard protection for themselves both inside and outside their homes."

[25] The RPD also found that the evidence before it demonstrated the "indifference and inability or unwillingness of the government and the security forces to protect White South Africans from persecution by African South Africans." The RPD determined that the Respondent had presented "‘clear and convincing proof' of the state's inability or unwillingness to protect him." Furthermore, the RPD held that "the claimant was a victim because of his race (white South African) rather than a victim of criminality and that he has established a link between his fear of persecution and one of the five grounds in the Convention definition."

[26] Moreover, the RPD determined that no viable Internal Flight Alternative (IFA) existed for the Respondent in any part of South Africa. It relied on the Europa World Yearbook 2008 in finding that black South Africans make up about 80% of the population, while white Europeans make up 9% of the population. Accordingly, the RPD found that the claimant would "stand out like a ‘sore thumb' due to his colour in any part of the country."

[27] The RPD determined that the Respondent's fear of persecution by black South Africans was justified based on the objective evidence before it. Having considered the evidence and submissions of counsel, the RPD determined that the Respondent had satisfied his burden of establishing a serious possibility of persecution on the Convention ground of race.

» » » » [Excerpt: IMM-4423-09: Judge James Russell 24 November 2010 Ruling: Min. of Immig. v. Brandon Huntley]