Panel did not consider operational reality of processes

REFUGEE STATUS

Panel did not consider operational reality of processes

Refugee claimant was citizen of Mongolia who claimed protection based on spousal abuse. Refugee Protection Division (RPD) found that claimant’s husband was convicted of criminal offence when in fact he had not been. While her husband had been taken away by police on three occasions, there was no evidence that he received criminal convictions as opposed to administrative detentions. Letter from police indicated that claimant’s husband was sentenced according to administrative law. Claimant’s testimony and documentary evidence indicated that recently enacted domestic violence law had been rarely if ever used. RPD referred to test for state protection as being whether Mongolian government was taking steps to address domestic violence. RPD denied claim. Claimant applied for judicial review. Application granted; decision quashed and matter remitted back for new determination by different panel. RPD referred to test for state protection as being whether Mongolian government was taking steps to address domestic violence. That articulation of legal test was error in law. RPD’s actual analysis of state protection focused on processes in place to deal with domestic violence. RPD did not consider efficacy or operational reality of those processes. RPD should have confronted fact that claimant had accessed all resources which RPD found were available to protect her and was still experiencing serious violence. Therefore, this decision could not be sustained.
Osor v. Canada (Minister of Citizenship and Immigration) (Jun. 4, 2014, F.C., Michael L. Phelan J., File No. IMM-2081-13) 241 A.C.W.S. (3d) 428.