2010 FC 1175, 2010 FC 1175

[2012] 3 F.C.R. 3 IMM-4423-09 2010 FC 1175 The Minister of Citizenship and Immigration ( Applicant ) v. Brandon Carl Huntley ( Respondent ) Indexed as: Canada (Citizenship and Immigration) v. Huntley Federal Court, Russell J.—Toronto, July 13; Ottawa, November 24, 2010. * Editor’s Note: This decision has been affirmed on appeal (A-482-10, 2011 FCA 273 ). The reasons for judgment, handed down October 3, 2011, are published in the Federal Courts Reports [2012] 3 F.C.R. 118.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Judicial review of Immigration and Refugee Board Refugee Protection Division (RPD) decision granting respondent refugee status pursuant to Immigration and Refugee Protection Act, s. 96 — Respondent white South African, alleging that attacks by black South Africans racially motivated — Not seeking state protection, making late refugee claim — RPD finding respondent credible, qualifying testimony of respondent’s witness as “lifeline” for claim — Determining, inter alia, that respondent’s fear of persecution justified — Whether violence, criminality experienced by respondent constituting persecution — Respondent’s evidence ambivalent, not suggesting racially motivated attacks — No evidence of systemic, racially motivated attacks against respondent, white South Africans — Respondent lacking subjective fear — Fear of prevalent crime no basis to support claim for persecution — No reasonable explanation given for not seeking state protection — RPD not relying on objective evidence regarding state protection — RPD’s conclusions regarding value of witness testimony unreasonable — By asserting that RPD partial or biased, respondent simply attempting to immunize case against review, rehearing — Application allowed.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Immigration and Refugee Board Refugee Protection Division (RPD) granting respondent refugee status pursuant to Immigration and Refugee Protection Act, s. 96 — Respondent alleging that application herein for judicial review abuse of process, breach of Charter, s. 7 rights in light of political pressure from South Africa — Whether judicial review abuse of process, breach of respondent’s rights under Charter — No evidence that judicial review proceedings commenced because of pressure from South Africa — Decision to review based on what applicant believed was flawed RPD decision — Allegations of political interference, abuse factually weak, hinging on flawed affidavits, not supported by evidence.

This was an application for judicial review of a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board granting the respondent status as a Convention refugee pursuant to

section 96 of the Immigration and Refugee Protection Act . The respondent had claimed refugee status on the basis of fear of discrimination, harassment and possible death because of his race. The respondent, a white citizen of the Republic of South Africa, reported being the victim of several assaults by black South Africans. He alleged that those assaults were racially motivated, and stated that he did not seek police or state protection because the authorities are unwilling or unable to help white South Africans.

After his work permit expired, the respondent attempted to join the Canadian Forces and married a Canadian citizen prior to making his refugee claim. The RPD found the respondent credible and accepted his evidence with regard to the attacks. One of the respondent’s witnesses, Ms. Kaplan, whose brother was victimized by black South Africans, also testified that the police are corrupt and will not help white South Africans, and that a genocide is occurring against white South Africans. The RPD qualified the testimony of Ms.

Kaplan as enhancing the respondent’s allegations of persecution of white South Africans and as a “lifeline” for his claim. Finally, the RPD determined that, while making a late refugee claim, the respondent’s fear of persecution by black South Africans was justified based on the objective evidence before it, which demonstrated that the state was unable or unwilling to protect the respondent, and that no viable internal flight alternative existed for the respondent in South Africa.

The respondent alleged, inter alia , that the applicant’s present application was an abuse of process in light of the political pressure by the South African government and that it breached the respondent’s rights under

section 7 of the Canadian Charter of Rights and Freedoms. The respondent also argued that the applicant’s characterization of the persecution faced by the respondent as random acts does not follow from the evidence, and that the RPD properly assessed the respondent’s subjective fear based on the evidence and facts before it. The main issues were whether the violence and criminality experienced by the respondent constitutes persecution, and whether the applicant’s application for judicial review was an abuse of process and breached the respondent’s rights under the Charter .

Held , the application should be allowed. There was ambivalence in the respondent’s evidence as to the motivations for the attacks against him, his reasons for coming to Canada and his reasons for not seeking police protection in South Africa. The respondent’s testimony did not suggest anything overtly racial about the attacks apart from racial slurs and insults that were uttered by his attackers. Such terms are not, in themselves, an objective indicator that the respondent was attacked because he is white.

The evidence did not suggest that mixed motives were behind the attacks, i.e. that the respondent was attacked for his property and for punishment for being white. Rather, the attacks were meant to rob him of his property and money. The respondent’s race was simply an indicium of relative wealth, and this did not render the attacks racist. In general, the respondent’s unprompted evidence could not reasonably support a finding of systemic, racially motivated attacks.

The respondent’s objective documentary evidence also failed to support his allegations of systemic criminality based on racial discrimination against white South Africans. The evidence pointed to a lack of subjective fear by the respondent. The respondent was unequivocal in stating that his reasons for

coming to Canada were economic and had nothing to do with a fear of race-based violence. His fear of the prevalent crime that exists in South Africa was not a sufficient basis to support a claim for persecution. The respondent’s failure to report the attacks to the police confirmed his lack of subjective fear. He provided no reasonable explanation as to why he did not seek state protection, even when some of the attacks occurred when the white apartheid regime was in full control and intent upon subduing the black South Africans.

There was no evidence before the RPD that the respondent either asked for help from the police or was denied such help. While the documentation provided by the respondent was relevant, it was personal, partial and political and had to be examined against a broader background of more independent sources. As such, the willingness and ability of the South African state to protect white South Africans is an issue that remains to be determined on a much more objective evidentiary basis than the RPD referred to and relied upon.

Finally, an extensive delay in making a refugee claim usually counts against an allegation of subjective fear. In the present case, the RPD excused the respondent’s delay because it bought into Ms. Kaplan’s view, which was partial and based upon her membership in a particular racial and socio-economic class, of what is happening in South Africa, and decided that this view allowed the respondent to claim refugee status. The RPD’s conclusions regarding the value of Ms. Kaplan’s evidence and the “lifeline” use that made of that evidence to support the respondent’s refugee claim were unreasonable.

As to the RPD’s handling of the documentary evidence, reliance was, for the most part, based on factors that had little to do with the respondent’s refugee claim. The RPD’s decision also contained numerous errors that rendered it unreasonable. There was no evidence that the Government of Canada paid any heed to diplomatic pressure from South Africa in deciding whether or not to commence the judicial review proceedings herein. The tenor, texture, weight and merit of the application suggested nothing more than a decision by the applicant to review a flawed RPD decision.

Nor did the timing of the applicant’s decision to proceed with a judicial review prove anything. The respondent’s allegations of political interference and abuse had an extremely weak factual basis and hinged primarily on flawed affidavits that did not meet the standards in Ly v. Canada (Minister of Citizenship and Immigration) . The respondent’s constitutional and abuse arguments were thus not supported by any evidence.

The respondent’s suggestion that the RPD could not fairly and impartially redetermine his refugee claim if it was returned for reconsideration because of the publicity and controversy surrounding it was simply an attempt to immunize his case against judicial review and rehearing. The respondent could not become a Convention refugee by default and by mere assertions of partiality or institutional bias on the part of the RPD. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7 . Federal Courts Act , R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8 , s. 14), 18 (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26 ), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27). Federal Courts Immigration and Refugee Protection Rules , SOR/93-22 (as am. by SOR/2005-339, s. 1), r. 12 (as am. by SOR/2002-232, s. 15). Federal Courts Rules , SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 81 (as am. by SOR/2009-331, s. 2). Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 72, 96 .

CASES CITED applied: Ly v. Canada (Minister of Citizenship and Immigration) , 2003 FC 1184 ; Committee for Justice and Liberty et al. v. National Energy Board et al. , 1976 CanLII 2 (SCC) , [1978] 1 S.C.R. 369, (1976), 68 D.L.R. (3d) 716, 9 N.R. 115. distinguished: United States of America v. Cobb , 2001 SCC 19 , [2001] 1 S.C.R. 587, 197 D.L.R. (4th) 46, 152 C.C.C. (3d) 270. considered: Canada (Citizenship and Immigration) v. Huntley , 2010 FC 407 , 366 F.T.R. 201; Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Zhuravlvev v.

Canada (Minister of Citizenship and Immigration) , 2000 CanLII 17128 (FC) , [2000] 4 F.C. 3, (2000), 187 F.T.R. 110 (T.D.); Shahiraj v. Canada (Minister of Citizenship and Immigration) , 2001 FCT 453 , 205 F.T.R. 199; Flores v. Canada (Minister of Citizenship and Immigration) , 2002 FCT 893 ; Smirnov v. Canada (Secretary of State) , 1994 CanLII 3545 (FC) , [1995] 1 F.C. 780 (T.D.); Deigan v. Canada (Minister of Industry) (1996), 206 N.R. 195 (F.C.A.) ; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick , 2002 SCC 13 , [2002] 1 S.C.R. 405, 245 N.B.R. (2d) 299, 209 D.L.R. (4th) 564; Kozak v.

Canada (Minister of Citizenship and Immigration) , 2006 FCA 124 , [2006] 4 F.C.R. 377, 267 D.L.R. (4th) 54, 41 Admin. L.R. (4th) 45; Pillai v. Canada (Minister of Citizenship and Immigration) , 2001 FCT 1417 , [2002] 3 F.C. 481, 39 Admin. L.R. (3d) 123, 19 Imm. L.R. (3d) 152. referred to: Song v. Canada (Citizenship and Immigration) , 2008 FC 467 ; Legault v. Canada (Minister of Citizenship and Immigration) , 2002 FCA 125 , [2002] 4 F.C. 358, 212 D.L.R. (4th) 139, 20 Imm. L.R. (3d) 119; Mendoza Cornejo v. Canada (Citizenship and Immigration) , 2010 FC 261 ; Liang v.

Canada (Citizenship and Immigration) , 2008 FC 450 ; Blake v. Canada (Minister of Public Safety and Emergency Preparedness) , 2008 FC 572 , [2009] 1 F.C.R. 179, 328 F.T.R. 200, 72 Imm. L.R. (3d) 301; Smith v. Canada (Chief of the Defence Staff) , 2010 FC 321 , 363 F.T.R. 186; Canada (Attorney General) v. Ward , 1993 CanLII 105 (SCC) , [1993] 2 S.C.R. 689, (1993), 103 D.L.R.

(4th) 1, 20 Imm. L.R. (2d) 85; Prophète v. Canada (Citizenship and Immigration) , 2009 FCA 31 , 78 Imm. L.R. (3d) 163, 387 N.R. 149; Caballero v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 345 (F.C.A.) ; Hernandez v. Canada (Citizenship and Immigration) , 2007 FC 1211 ; Ramirez Tenorio v. Canada (Citizenship and Immigration) , 2007 FC 63 ; Mejia v. Canada (Minister of Citizenship and Immigration) , 2003 FC 1180 ; Syed v. Canada (Minister of Citizenship and Immigration) , 2000 CanLII 16201 , 195 F.T.R. 39 (F.C.T.D.); Danquah v.

Canada (Minister of Citizenship and Immigration) , 2003 FC 832 ; Smith Kline & French Laboratories Ltd. v. Novopharm Ltd. (1984), 2 C.I.P.R. 205, 79 C.P.R. (2d) 103, 53 N.R. 68 (F.C.A.) ; First Green Park Pty. Ltd. v. Canada (Attorney General) , 1997 CanLII 4888 (FC) , [1997] 2 F.C. 845, (1997), 72 C.P.R. (3d) 327, 127 F.T.R. 189 (T.D.); Bressette v. Kettle and Stony Point First Nations Band Council , 1997 CanLII 5436 , 137 F.T.R. 189 (F.C.T.D.); Éthier v. Canada (RCMP Commissioner) , 1993 CanLII 2935 (FCA) , [1993] 2 F.C. 659, (1993), 151 N.R. 374 (C.A.); Tataskweyak Cree Nation v.

Sinclair , 2007 FC 1107 , 320 F.T.R. 1; Lumonics Research Limited v. Gould , 1983 CanLII 5000 (FCA) , [1983] 2 F.C. 360, (1983), 33 C.P.C. 230, 46 N.R. 483 (C.A.); Kassab v. Bell Canada , 2008 FC 1181 , 337 F.T.R. 152; Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.) ; Zazai v. Canada (Minister of Citizenship and Immigration) , 2004 FCA 89 , 36 Imm. L.R. (3d) 167, 318 N.R. 365. AUTHORS CITED Africa Ka Mahamba. “Taking from whites is not a crime in SA”, Daily Sun (23 March 2004).

Amnesty International Report 2008: South Africa , online: <http://archive.amnesty.org/report2008/eng/regions/africa/south-africa.html>. Bullard, David. “Loss of freedom creeps up on us like a face of wrinkles”, Sunday Times (21 October 2007). Europa World Year Book 2008 , 49th ed. London: Routledge, 2008. Hijacking Awareness Guide , online: <http://rocci.org/Hijacking_Awareness_Guide.pdf>. Human Rights Watch. World Report 2008: South Africa: Events of 2007 , online: <http://www.hrw.org/sites/default/files/reports/wr2k8_web.pdf>. Immigration and Refugee Board of Canada.

National Documentation Package, Issue Papers and Country Fact Sheets: South Africa, 25 March 2009, online: <http://www.irb-cisr.gc.ca:8080/Publications/PubNDP_CDN.aspx?id=1790>. IRIN: Humanitarian news and analysis service of the United Nations Office for the Coordination of Humanitarian Affairs. “South Africa: Burning the welcome mat”, online: <http://irinnews.org/report.aspx?reportid=78302>. M. Riordan-Bull Kleinmond. “Attacks have shown most of ANC to be racists”, Cape Argus (31 May 2008).

Morley, Robert. “South Africa: The Next Zimbabwe”, theTrumpet.com (February 3, 2009), online: <http://www.thetrumpet.com/? q=5919.4283.0.0>. “South Africa’s crime crisis”, BBC News (27 May 1999), online: <http://news.bbc.co.uk/2/hi/special_report/1999/05/99/south_africa_elections/353596.stm>. U.S. Department of State. 2008 Human Rights Report: South Africa .

Washington: Bureau of Democracy, Human Rights, and Labor, online: <http://www.state.gov/g/drl/rls/hrrpt/2008/af/119025.htm>. appLication for judicial review of a decision ( X (Re) , 2009 CanLII 90063 ) by the Refugee Protection Division of the Immigration and Refugee Board granting the respondent status as a Convention refugee pursuant to

section 96 of the Immigration and Refugee Protection Act . Application allowed. APPEARANCES Bernard Assan and B. Asha Gafar for applicant. Rocco Galati and Russell Lucien Kaplan for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. Rocco Galati Law Firm Professional Corporation , Toronto, for respondent. Table of Contents Paragraph Reasons for Judgment and Judgment 1 Background 2 Decision Under Review 6 Issues 28 Statutory Provisions 29 Standard of Review 34 Arguments 41 The Applicant 41

Preliminary Issues 41 Affidavits 41 No Abuse of Process 46 Errors in the Decision 49 State Protection 50 Assessment of Evidence Was Unreasonable 57 No Evidence Supporting Witness’s Opinions 58 No Evidence of Genocide 61 Affirmative Action Policies 63 Focus on White Farmers Is Unreasonable 65 IFA Finding Is Perverse 66 Selective Use of Objective Documentary Evidence 67 Random Acts of Violence Are Not Persecution 69 Absence of Subjective Fear 71 Delay 73 The Respondent 76 Abuse of Process 76 Reweighing Evidence 79 State Protection 82 Factual Findings 83 Persecution 85 Subjective Fear 86 Costs 89 Analysis 90 General 90 The Respondent’s Oral Evidence 96 Examination by Mr.

Kaplan 122 Objective Evidence of Racial Motivation 126 Subjective Fear 146 Reasons for Coming to Canada 150 Failure to Report to the Police 157 Delay in Making a Refugee Claim 162 Conclusions About the Respondent’s Personal Evidence 169 The Evidence of Ms. Lara Kaplan 171 Ms. Kaplan’s Personal Experiences 189 Ms. Kaplan’s Account of Third-Party Attacks 197 Ms. Kaplan’s General Views 204 The Documentary Evidence 210 National Documentation Package 223 The RPD’s Findings 230 Conclusions on Merits 231 External Considerations 237 The Evidence of Interference 239 The Affidavit of Ms.

Stefanie Gude 240 The Affidavit of Ms. Amina Sherazee 261 The Jurisprudence 275 The Remedy 294 Certification 300 The following are the reasons for judgment and judgment rendered in English by [ 1 ] Russell J.: 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 [ X (Re) , 2009 CanLII 90063 ] (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 [2010 FC 407 , 366 F.T.R. 201].

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 [at paragraph 41], “At 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 [at paragraph 45] 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 Africans, 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. It’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 [at paragraphs 55–56 [*] ] 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. [ 13 ] The RPD then considered the documentary evidence presented, including the Daily Sun

article [dated March 23, 2004] 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 “The whites have stolen from us since 6 April 1652” and “Taking 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 [at paragraph 65] 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 [at paragraph 66], 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 [at paragraph 70]: “Little 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 [at paragraph 71] that the “witness’ 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 [at paragraph 78] 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 [at paragraph 86] 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 2 000 white farmers in South Africa, many of whom had also been brutally tortured.

The RPD [at paragraph 114] 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” [at paragraph 118]; b.

That the respondent “has scars on various parts of his body” [at paragraph 119]; 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” [at paragraph 120]; 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” [at paragraph 121]; 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” [at paragraph 122]. [ 25 ] The RPD [at paragraph 123] 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 [at paragraph 124] determined that the respondent had presented “‘clear and convincing proof’ of the state’s inability or unwillingness to protect him.” Furthermore, the RPD [at paragraph 125] 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 Year Book 2008 in finding that black South Africans make up about 80 percent of the population, while white Europeans make up 9 percent of the population. Accordingly, the RPD [at paragraph 127] 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. ISSUES [ 28 ] The issues on this application can be summarized as follows: 1. Whether the RPD erred in finding that the respondent had sufficiently rebutted the presumption of state protection; 2. Whether the RPD erred in its assessment of the evidence; 3. Whether the violence and criminality experienced by the respondent constitutes persecution; 4.

Whether the RPD erred in its assessment of the respondent’s lack of subjective fear of persecution;

5. Whether the Minister’s application for judicial review constitutes an abuse of process and breaches the respondent’s rights under the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter). STATUTORY PROVISIONS [ 29 ] The following provisions of the Act are applicable in these proceedings: Application for judicial review 72.

(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. Application

(2) The following provisions govern an application under subsection (1): … (

d) a judge of the Court shall dispose of the application without delay and in a

summary way and, unless a judge of the Court directs otherwise, without personal appearance; … … Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. [ 30 ] The following provisions of the Federal Courts Act , R.S.C., 1985, c. F-7 [ ss. 1 (as am. by S.C. 2002, c. 8 , s. 14), 18 (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26 ), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27)] are applicable in these proceedings: Extraordinary remedies, federal tribunals 18.

(1) Subject to

section 28, the Federal Court has exclusive original jurisdiction (

a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (

b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. Extraordinary remedies, members of Canadian Forces

(2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada. Remedies to be obtained on application

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under

section 18.1. Application for judicial review 18.1

(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. Time limitation

(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days. Powers of Federal Court

(3) On an application for judicial review, the Federal Court may (

a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (

b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

Grounds of review

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (

a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (

b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (

c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (

d) 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; (

e) acted, or failed to act, by reason of fraud or perjured evidence; or (

f) acted in any other way that was contrary to law. Defect in form or technical irregularity

(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (

a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (

b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate. [ 31 ] The following provision of the Federal Courts Rules , SOR/98-106 [rr. 1 (as am. by SOR/2004-283, s. 2), 81(1) (as am. by SOR/2009-331, s. 2)] is also applicable in these proceedings: Content of affidavits 81.

(1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for

summary judgment or

summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included. [ 32 ] The following provision of the Federal Courts Immigration and Refugee Protection Rules , SOR/93-22 [as am. by SOR/2005- 339, s. 1, r. 12 (as am. by SOR/2002-232, s. 15)] is also applicable in these proceedings: 12.

(1) Affidavits filed in connection with an application for leave shall be confined to such evidence as the deponent could give if testifying as a witness before the Court.

(2) Unless a judge for special reasons so orders, no cross-examination of a deponent on an affidavit filed in connection with an application is permitted before leave to commence an application for judicial review is granted. [ 33 ] The following provision of the Charter is also applicable in these proceedings: Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. STANDARD OF REVIEW [ 34 ] The Supreme Court of Canada in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.

In the case at hand, the appropriate standard of review for each issue has been addressed by judicial precedent. [ 35 ] A standard of reasonableness is appropriate when determining whether the RPD erred in finding that the respondent had sufficiently rebutted the presumption of state protection. See Song v. Canada (Citizenship and Immigration) , 2008 FC 467 , at paragraph 6 . [ 36 ] The RPD’s assessment of the evidence and its factual findings are owed considerable deference and are reviewable on a standard of reasonableness. See Legault v.

Canada (Minister of Citizenship and Immigration) , 2002 FCA 125 , [2002] 4 F.C. 358 , at paragraph 11 ; and Dunsmuir , above, at paragraph 51 . [ 37 ] Reasonableness is also the appropriate standard of review when determining whether the RPD erred in its assessment of the respondent’s subjective fear. See Mendoza Cornejo v. Canada (Citizenship and Immigration) , 2010 FC 261 , at paragraph 17 . [ 38 ] The RPD’s determination of whether the violence and criminality experienced by the respondent constitutes persecution is an issue of mixed fact and law.

Accordingly, it will be reviewed on a standard of reasonableness. See Liang v. Canada (Citizenship and Immigration) , 2008 FC 450 , at paragraph 15 . [ 39 ] When reviewing a decision on the standard of reasonableness, the analysis is concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir , above, at paragraph 47 .

Put another way, the Court should intervene only if the decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

[ 40 ] As regards the respondent’s allegation that this application for judicial review constitutes an abuse of process and a breach of the respondent’s Charter rights, the appropriate standard of review is one of correctness. See, for example, Blake v. Canada (Minister of Public Safety and Emergency Preparedness) , 2008 FC 572 , [2009] 1 F.C.R. 179; and Smith v. Canada (Chief of the Defence Staff) , 2010 FC 321 , 363 F.T.R. 186.

ARGUMENTS The Applicant Preliminary issues Affidavits [ 41 ] The applicant submits that the two affidavits sworn in support of the respondent’s position should be struck since they address matters that are not within the knowledge of the affiants and/or are irrelevant. [ 42 ] The applicant contends that the affidavit of Ms. Stefanie Gude is irrelevant. This affidavit refers to various reactions to the RPD’s decision that occurred after the decision was made and that do not affect the errors made by the RPD. Moreover, the affiant expresses opinions and makes assertions that are not within her knowledge.

This is contrary to rule 81 of the Federal Courts Rules and subrule 12(1) of the Federal Courts Immigration and Refugee Protection Rules . [ 43 ] Similarly, the affidavit of Ms. Amina Sherazee is irrelevant and argumentative; it is simply based on her opinions and fails to show that she has any personal knowledge of the matters to which she deposes. The applicant submits that Ms. Sherazee speculates about the Minister’s motives for applying for leave and judicial review of the RPD’s decision.

However, there is no evidence that she has been privy to any discussions that may have led the Minister to seek leave and review. As such, she has no personal knowledge of this matter. Further, Ms. Sherazee’s affidavit attempts to draw legal conclusions and casts aspersions on the Court. [ 44 ] The Court determined in Ly v. Canada (Minister of Citizenship and Immigration) , 2003 FC 1184 ( Ly ), at paragraph 10 that: 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…. If an affidavit does not meet these requirements, the application can only succeed if an error is apparent on the face of the record…. [Citations omitted.] [ 45 ] The applicant says that the affidavits put forward by the respondent do not meet the requirements for affidavits as set out by the Court in Ly , above. As such, the applicant submits that they should be either struck from the record or completely ignored.

No abuse of process [ 46 ] There is no merit to the respondent’s contention that the Minister’s application for judicial review constitutes an abuse of process. The respondent is attempting to argue that the Minister should be precluded from seeking judicial review of a decision that the Minister considers unreasonable and flawed. Furthermore, the respondent alleges that the Court should be deprived of jurisdiction to hear the application.

This ignores the independence of the Court, as well as its ability to make its own decisions. [ 47 ] The respondent’s allegation that the Minister’s application for judicial review is the result of political pressure is unfounded. It is open to the South African government to protest a finding that it is presiding over the genocide of white South Africans or that all black South African citizens want white citizens eradicated.

The Minister’s decision to seek leave and judicial review, however, is based on the legal and factual errors in the RPD’s decision. [ 48 ] Because the Minister’s application discloses serious issues, the rule of law dictates that the Minister—like all litigants before the Court—be given a chance to be heard. Apart from his baseless speculation, the respondent has not shown that there has been any abuse of process or that the Minister’s application lacks merit and should not be entertained by this Court. Errors in the decision [ 49 ] The applicant submits that the RPD erred by: a.

Finding that the respondent had rebutted the presumption of state protection; b. Ignoring evidence that was crucial to the determination at hand; c. Equating random acts of violence and criminality with persecution due to the respondent’s race; d. Failing to assess properly the respondent’s subjective fear in light of his delay in making a claim for refugee status. State protection [ 50 ] The onus was on the respondent in this instance to provide clear and convincing evidence that the Government of South Africa is unable or unwilling to protect him.

However, in the RPD’s reasons, there is no reference to, or consideration of, the respondent’s burden in this regard. [ 51 ] The respondent admits that he never reported any of the alleged attacks to the authorities. While the RPD acknowledged that the respondent did not seek state protection, it failed to consider properly the impact of the respondent’s failure to seek protection on his onus to rebut the presumption of state protection.

[ 52 ] Moreover, the respondent’s claim that he did not report any of the alleged attacks because in other instances such reports “got lost in the system” is unsupported by evidence. The applicant submits that the RPD erred in simply accepting that the majority of police in South Africa are black and are not interested in protecting whites. Indeed, this finding is flawed for a number of reasons. [ 53 ] First, the two initial attacks faced by the respondent occurred in 1991 and 1992 when apartheid was still occurring in South Africa.

As such, the police and other security services were controlled by the apartheid state whose main goal was to protect the privileged position of the white minority and suppress the black majority of the population. There was no evidence before the RPD on which it could reasonably conclude that the police powers in South Africa at this time would not have been interested in protecting a white person who had allegedly been assaulted by black people.

Consequently, the respondent’s failure to report the first attacks on him in 1991 and 1992 should have been considered by the RPD in its analysis of state protection. [ 54 ] Moreover, the respondent’s contention that the South African police are not interested in protecting whites does not withstand scrutiny, since the respondent stated that his family had reported a robbery in 2005. According to the respondent’s testimony, the police both responded to and investigated this complaint. The failure to lay charges is not evidence of a lack of state protection. As noted in Zhuravlvev v.

Canada (Minister of Citizenship and Immigration) , 2000 CanLII 17128 (FC) , [2000] 4 F.C. 3 (T.D.), “All policing activity is bound to encounter failures, particularly in a democratic state. Even in Canada, random acts of vandalism or violence seldom yield convictions” (paragraph 19). [ 55 ] The complaint of the respondent’s own family to the police and the ensuing investigation undermine the respondent’s claim— and the RPD’s finding—that the South African police are not concerned with the protection of white South Africans.

Despite the fact that the police were responsive when his family sought police protection, the respondent failed to report any of the attacks he faced. The applicant submits that this failure is inconsistent with the respondent’s onus as set out in Canada (Attorney General) v.

Ward , 1993 CanLII 105 (SCC) , [1993] 2 S.C.R. 689. [ 56 ] Furthermore, the RPD’s decision seems to suggest that if a claimant is not the same ethnicity as the members of the law enforcement service then the duty to seek state protection is relaxed or lessened, even where no credible evidence of the state’s inability or unwillingness to protect has been shown. According to the applicant, this view is unsupported by international law or Canadian jurisprudence; it rests largely on the Board’s flawed assessment of the country conditions.

Assessment of evidence was unreasonable [ 57 ] The RPD noted in its decision [at paragraph 71] that the respondent’s claim was enhanced and supported by the oral testimony of a witness whose evidence was “the lifeline for the claimant’s claim.” It can be inferred that the RPD found Ms. Kaplan to be credible and accepted her evidence as true. Within her testimony, Ms. Kaplan made many assertions which the RPD must be taken to have accepted. These assertions include the following: a. That the South African police, who are mainly black, are “corrupt” and “in cahoots with the criminals” who attack whites; b.

That black South Africans have a hatred and a vendetta against the white South Africans due to the injustices of the apartheid regime and that all whites feel this hatred; c. That all blacks in South Africa hold all whites equally responsible for apartheid and want whites eradicated and stomped on like ants; d. That a mass genocide of white South Africans by the black majority is occurring in South Africa. The applicant submits that the RPD’s acceptance of these assertions, which have no objective evidentiary foundation, epitomizes the unreasonableness of the decision.

No evidence supporting witness’s opinions [ 58 ] No evidence exists to support Ms. Kaplan’s statements with regard to the general attitude of black South Africans towards white South Africans. The RPD failed to critically analyse the witness’s statements. As such, the RPD seems to have taken the witness’s statements as reflective of the feelings and beliefs of all black South Africans. [ 59 ] The country condition evidence before the RPD fails to support Ms. Kaplan’s statements.

According to the Minister: … 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”. [Emphasis in original.] [ 60 ] By characterizing Ms.

Kaplan’s evidence as the “lifeline” for the respondent’s claim, the RPD gives the impression that it accepted the witness’s unsubstantiated assertions and based its decision on those assertions. The applicant submits that this is both unreasonable and perverse. No evidence of genocide [ 61 ] The RPD erred further in failing to address Ms. Kaplan’s assertion that the black majority in South Africa is perpetrating genocide against white South Africans.

Because the witness’s testimony was the “lifeline” for the respondent’s claim, the RPD’s failure to comment on this assertion must be taken as acceptance of the witness’s evidence of an ongoing genocide against whites in South Africa. [ 62 ] Had the RPD adequately consulted the documentary evidence, it would have realized that Ms. Kaplan’s evidence was unsupported. Although the evidence shows the emigration of many white professionals from South Africa in recent years, it also shows considerable movement of foreign nationals (such as British citizens) to South Africa.

Although some of these citizens may not be white,

this trend nonetheless suggests that some white people have no difficulty moving to, or residing in, South Africa. The applicant submits that this evidence contradicts the witness’s assertion of genocide and demonstrates that the RPD’s assessment of the conditions in South Africa was both incomplete and misleading. Affirmative Action Policies [ 63 ] The RPD also erred with regard to its appraisal of South Africa’s affirmative action policy. While the RPD appears to believe that the affirmative action in favour of blacks and other racial groups constitutes state-sponsored persecution, this is clearly incorrect.

Rather, the affirmative action policy seeks to ensure that black South Africans and minorities are adequately represented within the workforce. [ 64 ] The RPD’s failure to cite any evidence that suggests that South Africa’s affirmative action policy reflects animosity towards white South Africans demonstrates the perversity of its findings. Moreover, the applicant submits that the RPD’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.

Focus on White Farmers is Unreasonable [ 65 ] In its decision, the RPD implies that the conditions of white farmers support Ms. Kaplan’s allegations of a racially motivated genocide. This is not a reasonable implication; it is unreasonable to conclude that the plight of farmers demonstrates what will happen to the respondent upon returning to South Africa. The applicant characterizes the situation of farmers in South Africa as being “a consequence of [a] long history and specific circumstances”, but these are distinguishable from the circumstances of the respondent.

IFA finding is perverse [ 66 ] The RPD’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. The evidence before the RPD demonstrated that white South Africans constitute approximately 10 percent of the country’s total population and a far higher percentage in major cities and urban centres. The RPD’s finding that the respondent will be unable to find refuge because of his skin colour cannot be reconciled with the population figures that were before it.

Selective use of objective documentary evidence [ 67 ] The “objective” documentary evidence relied on by the RPD consisted of: (

a) letters to newspapers; (

b) the personal opinions of newspaper columnists and other individuals; and (

c) reports on the conditions of white farmers. Notably absent from this evidence is objective documentary evidence from such sources as Amnesty International, Human Rights Watch, the U.S. Department of State and the British Home Office, which are commonly used in asylum cases. [ 68 ] The evidence assessed by the RPD gives the impression that the African National Congress is indifferent towards the plight of the minority white population. The applicant contends that this is an incomplete assessment of country conditions since the black majority in South Africa is at least equally victimized by criminals.

See, for example, “South Africa’s crime crisis”, BBC News (27 May 1999). It is clear that the RPD failed to examine the evidence before it with a balanced view. Random acts of violence are not persecution [ 69 ] The RPD further erred in equating the random acts of violence and criminality experienced by South Africans of every background to persecution experienced by white South Africans. The applicant submits that crime is prevalent in South Africa and victimizes all South Africans, regardless of race.

Rather, it is more likely that white South Africans are targeted because they are perceived to be wealthy. [ 70 ] There is no evidence in this instance, other than some equivocal racial slurs, to prove that the attacks experienced by the respondent were racially motivated. Moreover, even if the Court were convinced that the attacks were racially motivated, these attacks lack the systemic element required to constitute persecution. The RPD’s decision is unreasonable and inconsistent with the principle that random acts of violence or criminality do not constitute persecution. See Prophète v.

Canada (Citizenship and Immigration) , 2009 FCA 31 , 78 Imm. L.R. (3d) 163. Absence of subjective fear [ 71 ] The RPD also erred in failing to consider properly whether the respondent’s return to South Africa after his first trip to Canada undermined his allegation of subjective fear of persecution. The applicant contends that 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. See, for example, Caballero v.

Canada (Minister of Employment and Immigration) (1993), 154 N.R. 345 (F.C.A.) . [ 72 ] It was unreasonable for the RPD to accept the respondent’s explanation that he did not believe he could make a refugee claim because he did not speak French. However, the RPD accepted this explanation without any evidence that the respondent made any effort to ascertain the truth of this belief by contacting legal counsel, Citizenship and Immigration Canada, the Immigration and Refugee Board or a community legal clinic.

Delay [ 73 ] The RPD erred in accepting the respondent’s explanation for delay simply because it had not made any other findings of adverse credibility. According to the applicant, it is not a prerequisite that there should be an adverse credibility finding against a claimant in order for the RPD to draw an adverse inference from his/her delay to apply for protection. Rather, a delay is a relevant factor that must be considered even in cases where the claimant is found to be credible.

[ 74 ] Getting married or seeking employment with a government agency is not an adequate explanation for a delay. Furthermore, the respondent sought refugee protection only after he separated from his spouse. According to the applicant, this demonstrates the fallacy of the RPD’s finding that the respondent attempted to regularize his status in Canada via marriage to a Canadian citizen. [ 75 ] What is more, the respondent claims to have been the victim of numerous attacks over the course of a 10-year period. Nevertheless, he left South Africa only in 2004, after he was hired to work in Canada.

This conduct is inconsistent with a subjective fear of persecution. The Respondent Abuse of process [ 76 ] In light of the political pressure brought to bear by the South African government in response to the decision and the political nature of the decision, the respondent alleges that the Minister’s application for judicial review constitutes an abuse of process. Accordingly, this application should be dismissed for reasons set out in United States of America v. Cobb , 2001 SCC 19 , [2001] 1 S.C.R. 587 ( Cobb ).

The respondent submits that the Court cannot adopt the “executive abuse” of a party such as the Minister without depriving itself of jurisdiction. [ 77 ] The respondent also says that the Minister’s decision to judicially review this decision is most likely based on the pressures placed on the Canadian government by the South African government. The timing and circumstances of this application, as well as the “tenor, texture, and non-existent weight or merit” of the grounds relied upon, have made it politically abusive. This has resulted in an abuse of process as well as a breach of the respondent’s

section 7 Charter rights. [ 78 ] Moreover, the respondent submits that the “Honorable Court’s [ sic ] track record as between applications on behalf of refugee claimants/immigrants versus those by the Minister” demonstrates a reasonable apprehension of bias on the part of the Court. Consequently, whether a true loss of independence has occurred, or whether it is simply apprehended that the Court has acquiesced to pressure applied by a foreign government, the result is that the Court has been stripped of its jurisdiction.

Reweighing evidence [ 79 ] The respondent contends that the applicant is asking the Court to reweigh the evidence that was before the RPD simply because the applicant is not satisfied with the RPD’s decision.

However, such an approach is contrary to Dunsmuir , above, which states [at paragraph 49] that “deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences”. [ 80 ] The respondent submits that it is unfair and inaccurate to confuse the recitation of viva voce evidence within the decision (i.e., the evidence of Ms. Kaplan) with a presumption that the RPD accepted these statements as findings of fact.

Rather, the decision must be read properly and contextually, without the assumption that the RPD adopted all of the statements made by Ms. Kaplan during her testimony. Indeed, the witness’s allegations of persecution were accepted by the RPD; however, this does not mean that the RPD accepted the sweeping generalizations made, and conclusions reached, by Ms. Kaplan. The RPD simply recited her evidence without making findings of fact. [ 81 ] Moreover, the applicant has mischaracterized the RPD’s use of Ms. Kaplan’s testimony.

The RPD makes it clear that it considers the witness’s position and experiences as similarly situated to those of the respondent. State protection [ 82 ] The RPD’s findings with regard to state protection were reasonable in this instance. The respondent provided credible evidence concerning the attacks he had experienced and the evidence of a similarly situated witness to rebut the presumption of state protection.

The respondent rebutted the presumption of state protection by providing clear and convincing evidence that demonstrated the inability and/or unwillingness of the South African state to provide protection. The respondent was not required to risk his life by seeking ineffective state protection simply to demonstrate its inadequacy. See Hernandez v. Canada (Citizenship and Immigration) , 2007 FC 1211 , at paragraph 19 . Factual findings [ 83 ] The applicant has misrepresented the factual findings of the RPD as including every statement made by Ms. Kaplan.

Even credible witnesses may draw conclusions that are unwarranted; however, this does not affect the credibility of their evidence, nor does it mean that the RPD has accepted as fact each and every conclusion reached by the witness. [ 84 ] The applicant is mischaracterizing the findings of the RPD in an attempt to have the evidence reweighed. According to the respondent, “the tenor, texture, and weight of the applicant’s arguments are to have this Court rehear and re-determine the claim, based on misguided, politically correct notions and alarm of potential opening of (white) flood-gates from South Africa”.

Persecution [ 85 ] The applicant also characterizes the persecution faced by the respondent as “acts of random violence”. This finding, however, does not follow from the evidence before the RPD, which indicated that the respondent was subjected to racial slurs, such as “white dog”, “settler” and “white fuck”, when he was attacked on numerous occasions. These attacks were clearly not random. This was confirmed by Ms. Kaplan and was corroborated by the documentary evidence. Subjective fear [ 86 ] It was open to the RPD to make the finding of subjective fear based on the evidence and facts before it.

Especially in light of the

seven serious physical attacks suffered by the respondent, as well as the corroborating evidence of Ms. Kaplan and the documentary evidence. [ 87 ] The consideration and assessment of delay was also within the purview of the RPD. It appropriately assessed this issue as simply one consideration in determining the existence of a well-founded fear of persecution. [ 88 ] Moreover, the respondent was found to be credible, and the applicant has not attempted to take issue with his credibility. Costs [ 89 ] The respondent submits that he is entitled to solicitor-client costs due to the circumstances of the case.

ANALYSIS General [ 90 ] If the evidence before the RPD in this case is anything to go by, then the people of South Africa are living through an extremely dangerous and difficult time in the history of their country. The evidence reveals that crime is widespread and endemic against South Africans of all races and that racial and ethnic tensions continue to plague the country in the post-apartheid era. Many people have found the situation intolerable and have left.

Many of those who have stayed, and who can afford it, have adopted a siege mentality, living in protected enclaves and/or in heavily secured and monitored houses. [ 91 ] There is evidence before me that when the RPD rendered a positive decision in this case and concluded that the respondent qualified for refugee protection against racially motivated crime in South Africa, the South African authorities labelled the RPD’s decision itself as “racist” and “ridiculous” and threatened that, if allowed to stand, it could “seriously damage relations between the two countries”.

Attempts to exert diplomatic pressure on the Government of Canada to ensure that the decision was reversed give rise to complex constitutional, Charter and jurisdictional issues that the Court will now need to address as part of this application.

If such threats are representative of the attitude of the South African authorities then they suggest an unfortunate misunderstanding of the way the rule of law works in Canada and an equally unfortunate lack of sympathy for South African citizens who find the current situation in their own country to be intolerable. [ 92 ] Given the evidence of endemic, and often horrendous, crime in South Africa that has been presented in this case, it surely cannot be a surprise to anyone that a South African such as the respondent might conclude that he is the victim of violence directed against white South Africans and that the South African authorities are either unwilling or unable to protect him.

Whatever conclusions the Court may come to regarding the RPD’s decision in this case, the respondent’s attempts to secure refugee status are, at least, understandable. The evidence is clear that he has been repeatedly attacked and stabbed by black assailants in South Africa. It is not, therefore, obviously delusional that he might have formed the impression that his attackers were motivated by the colour of his skin.

For the South African authorities to attack the RPD’s decision as “racist” and as a threat to the relationship between Canada and South Africa suggests an intolerance to criticism from one of its own citizens and an attitude that no white person should be allowed to claim he or she has been racially targeted even when repeatedly attacked by black criminals. [ 93 ] In the end, however, and notwithstanding the legal ramifications that the actions of the South African authorities in response to the RPD decision have brought into play, this application is not about what the South African government or the Canadian government, or even this Court, believes is happening in South Africa.

The application is about whether, given the evidence presented at the RPD hearing, it was unreasonable for the RPD to conclude that this respondent is a victim of race-based crime against which the South African authorities cannot, or will not, protect him. This does not mean that in rendering a positive decision on this issue the RPD was correct; the issue is whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law.

Just because some people dislike the decision and do not find it tenable for political reasons does not make it unreasonable. [ 94 ] The Minister says the decision is unreasonable because, given the facts and the law, it does not fall within the range of possible, acceptable outcomes.

The respondent says it is reasonable because, although everyone may not agree that all crime committed by black people against white people in South Africa is race-based, the evidence is clear that at least some of it is, that it was in his case and that the authorities are either unable or unwilling to protect poor white citizens, such as the respondent, who find themselves repeatedly victimized by their black compatriots. [ 95 ] Generally speaking, the question of whether the decision was reasonable or not turns upon the quality and treatment of the evidence that was placed before the RPD by the respondent.

The Respondent’s Oral Evidence [ 96 ] My review of the record suggests to me that there is a significant degree of ambivalence in the respondent’s personal evidence about why he came to Canada and why he did not seek police protection in South Africa when attacked and robbed by his black assailants. [ 97 ] The RPD found the respondent’s narrative entirely credible and, in terms of the attacks he suffered and the injuries he sustained, there is nothing to suggest that this finding was unreasonable.

The ambivalence arises from what the respondent says about the motivation for the attacks, his reasons for coming to Canada and his reasons for not seeking police protection in South Africa. [ 98 ] When questioned by the RPD about the seven attacks he suffered between 1991 and approximately 2003, the respondent’s answers do not suggest anything overtly racial about them apart from racial insults that were uttered during the attacks.

According to his own evidence, it looks as though the criminals were after his personal property and money. [ 99 ] In 1991, when he was stabbed on the train, his evidence was that the attackers said he was sitting in their chair and they wanted money and they stabbed him because he did not have any.

[ 100 ] In the 1992 attack at the bus stop, his evidence was that the attackers “wanted my shoes and my money or whatever”. When the RPD asked him what they were after, the respondent explained as follows: You see they want everything we have because we, how do you say, they don’t have much money because of what we did to them in the past …. [ 101 ] The incident itself, as the respondent explains, suggests that the crime was carried out by black people who do not have much money because of past injustices.

The respondent may well have been noticed because of his white skin, but this does not mean he was attacked because he is white. In the respondent’s account of the incident there is nothing to suggest that the attackers wished to rob or injure him because he is white. His whiteness was simply an indicium of relative wealth, and they attacked him to try and obtain whatever he had in terms of property that was valuable to them. [ 102 ] This raises, of course, a difficult conceptual issue. The respondent may well have been conspicuous on the train and at the bus stop because he is white.

And this is because, in the context of South Africa’s culture and history, whiteness connotes either substantial or relative wealth. In my view, however, this does not render the attacks racist. The respondent’s unprompted evidence suggests that the attacks were made to acquire property and not to punish the respondent for being white. There is no evidence that attacks are not made against black people in South Africa in situations where they also display the trappings of substantial or relative wealth.

In fact, there was evidence before the RPD that South Africans of every race and ethnic background are robbed and stabbed by black criminals. As the respondent explained to the RPD, many robbers are black because of what happened in the past, and many black people remain poor and are prepared to resort to criminal means to acquire money and other property. [ 103 ] The respondent was also stabbed by black attackers at a nightclub in 1996. Again, the respondent’s evidence was that the assailant wanted “shoes and money”. [ 104 ] In 1998, the respondent was stabbed in the hand.

Again, the respondent’s account of the incident was that he was at a bus stop and “they wanted my things again and I managed to step back and I got stabbed in my hand”. [ 105 ] The fifth attack occurred in 2000 while the respondent was playing in a rugby match. The respondent’s unprompted account runs as follows: Yeah, I was playing a rugby match and I think it’s 2000 and I wasn’t the only who [ sic ] got stabbed. It was a shady town kind of thing, industrial town and we were playing a rugby match.

And me and two other guys we never got stabbed, we were more scraped because we were in the middle of a rugby match and we tried to tell the ref. but all that he would was [ sic ] just stop the game. [ 106 ] This time the assailant “sort of scraped [the respondent’s] knee with a sharpened screwdriver sort of thing, home-made knife and two other guys they got one, and it was in the arm I think and another one in the hand”. [ 107 ] We are not told at this point whether the “two other guys” who “got one” were black or white.

This is significant because the respondent says that although the opposition was an all-black team, there were, besides himself, two other white players on his team. [ 108 ] What is interesting and significant, in my view, is that the respondent obviously had no fear of playing rugby against an all-black team in a small industrial town as part of a mixed team that had three white players and 12 black players. [ 109 ] When asked by the RPD why he was attacked during the rugby game, the respondent was definitive in his answer: “Because they were losing.” [ 110 ] The respondent was also asked whether he was afraid to play a team of underprivileged black Africans in “an African area”.

His answer was “It depends where.” [ 111 ] Once again, there is no indication here that the respondent was attacked for racial motives. He says that he, and two others (who he later says were also white), were attacked because the team they were playing against was losing. [ 112 ] The sixth incident was recounted by the respondent as follows: Yeah.

I got, well my friend and I were at the, like the market you guys have here, we were at our version of one in Capetown and we were on the way to go home in the car and we seen an African trying to what looked like steal the car or open the door and when we tried to stop him about five of them came out from hiding around the cars. And I got, my hand got, the palm of my hand got sliced and my friend got stabbed in the buttocks. [ 113 ] There is no evidence here that the respondent was targeted because he was white. He appears to have come upon someone attempting to break into his friend’s car.

We are not told whether his friend was black or white. The RPD asked him about the friend, but all the respondent would say was “Well we sort of grew up together back home.” [ 114 ] In my view, there is no evidence whatsoever that this attack was racially motivated. There is no evidence, for instance, that the black perpetrator knew he was trying to break into the car of a white person or indeed that it was a car belonging to a white person. The respondent and his friend came upon a crime in progress, decided to intervene and were set upon by the gang.

That is it. [ 115 ] The seventh attack occurred some time after 2000 when the respondent and a friend were walking home late at night from “the beach area, all the pubs and night life”. The pair were confronted by black people who “were trying to intimidate” them. The respondent says that he was not intimidated because “I was pretty close to my house”. Here is what he says happened as a result of the confrontation: And they gave me what they call a smiley, they hold their lighter upside down so that the flame burns the middle part and in the [inaudible] it leaves like a smiley thing there.

[ 116 ] As for the respondent’s friend “he got the lights beaten out of him because he was smaller than me and they see [ sic ] he was scared”. [ 117 ] Once again, the RPD asked why the respondent and his friend were attacked. The answer was a simple: “There is a—that’s life for us.” [ 118 ] The RPD also asked if the assailants wanted money. The respondent replied: “Well anything.

You see they like to intimidate us because there is nothing we can do to them so they do that.” [ 119 ] As well as the attacks against the respondent himself, he also referred to an attack upon a friend called Jamie McAlister whose brother accompanied the respondent to Canada in 2004. Jamie was abducted outside a nightclub by “four Africans and one African woman”.

The respondent is unclear regarding the reasons for this attack upon his friend Jamie: I don’t know if they were doing initiation thing [ sic ] but she wanted to sexually harass him or rape him or whatever and after they seen, they had enough, whatever, they dropped him off in his underpants in the middle of nowhere. [ 120 ] It is not clear how the respondent knows what happened to Jamie and how much of it he witnessed himself. Here again, however, there is no mention of a racial dimension to the attack.

It does not follow that, because Jamie’s abductors happened to be black, they abducted and beat him up because he was white . [ 121 ] In general, then, the respondent’s unprompted evidence cannot reasonably support a finding of systemic, racially motivated attacks. Examination by Mr. Kaplan [ 122 ] It is apparent from the record that the racial aspects of the attacks I have referred to were introduced into evidence when the respondent was examined by his own counsel, Mr. Kaplan. Reading over the transcript, there is a strong impression of Mr.

Kaplan attempting to remind the respondent that he is involved in a refugee claim and that the racial element is all important. To do this Mr. Kaplan goes over the attacks again and asks the respondent extremely leading questions about racial motivation. Mr. Kaplan’s questions suggest in an obvious way the answers he requires. In fact, in my view, Mr. Kaplan prompts and encourages the respondent to give a particular answer. [ 123 ] I will use the rugby game incident to illustrate this. Here is Mr. Kaplan going over the sequence of events with the respondent: Q. Okay.

Now in the rugby match incident the member asked you, member, the Chairman there, and he asked you, the judge, he asked you why were you stabbed and you said because they were losing. A. Yeah. It’s also because—you got to remember we got nice rugby jerseys because we are a club, they, underprivileged town, and so they pick on us. That’s what they do. When I came home in 2004 there were people on the airplane, when we walked out there was the security, they recognized our accent and they pick on us. They want do to [ sic ] check our bags and that’s outside the airport, that’s not even in Customs.

That’s what they do— Q. Okay. Sorry, Brandon, just one second. In that rugby match you were on the team, you said there was three white people. A. Yeah. Q. And 12 African people on that team, now is it correct that all 15 people on your team would have had nicer rugby jerseys, you would be wearing the same jerseys that your— A. Yeah, but we belong to a club. Q. Yes. But the other African players, right? A. Yeah. Q. Now was there any racial motivation in your view regarding that particular incident? A. I mean from our team— Q. You were stabbed, right? A. Yeah. Q.

With a screwdriver, and it was by an African person on the other team. A. Yeah. Q. And then another two people were also injured, right? Were those other two people African or white? A. They were white. Q. So all three people on that team, on your team who were white were stabbed. Was there apart—you said that the reason was they did that because you were losing. Was there any racial motivation for stabbing you and the other two guys as far as you know? A. Well they were, they smirk and they give us comments and we can’t go to the ref. because he was an African too and all that he did

was just stop the

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