For the second time, a Federal Court judge has overturned a decision by the Immigration and Refugee Board denying an Ottawa refugee claimant asylum.
In a decision dated Oct. 1, Justice Mary Gleason ruled that the reasoning in the decision of the IRB member who turned Gabino Zacarias down last year was “so erroneous that it must be set aside.”
Zacarias, 45, has called Ottawa home since 2008, when he fled his native Guatemala after he and his family were targeted for death by the leader of a street gang called the Maras Salvatruchas. The Citizen featured his story in a series on the Federal Court’s handling of immigration and refugee cases last fall.
A chicken vendor by trade, Zacarias ran afoul of the gang leader — known as Chubby — after he and a fellow vendor told security staff at the market where they worked that Chubby had threatened their family members if they didn’t make weekly payments to him.
That led to Chubby’s arrest, but the extortion demands continued and intensified. Soon after Chubby’s release, he and his gang confronted Zacarias and the other vendor. The other man was killed, but Zacarias escaped.
He moved his family to another village, then came to Canada on a temporary work permit in 2008 — leaving his wife, son and two daughters behind — before seeking asylum the following year.
Though the first IRB member who heard his case found his story credible, he denied his application because he said Zacarias was not a refugee as defined by a United Nations convention and the risks he faced in Guatemala were shared by the population in general.
That decision was overturned on judicial review in January 2011 by Federal Court Judge Simon Noël, who referred Zacarias’s case back to the IRB for a new hearing by a different member.
The IRB’s refugee protection division heard the case for a second time last year. The result was the same: Zacarias’s asylum claim was again denied. But this time, the IRB member based his decision on credibility — ruling, in effect, that he didn’t believe Zacarias’s story.
Zacarias again filed for judicial review by the Federal Court, with Gleason presiding. In her decision, she noted it was exceptional for the courts to overturn credibility determinations made by tribunals. “This, however, is a case where an erroneous credibility finding requires intervention.”
The IRB member’s findings, Gleason found, were “based on impermissible conjecture and conclusions that contradict the evidence before the board and thus cannot stand.”
Moreover, the IRB member buttressed his negative credibility finding by noting that Zacarias sat with his arms crossed and appeared “sullen and arrogant,” which was “not an attitude one would reasonably expect from someone asking a foreign country to save his life.”
Gleason found that “overly subjective conclusions based on an individual’s posture or perceived attitude are not within the appropriate purview of a credibility assessment.”
She ordered the IRB to reconsider Zacarias’s asylum claim yet again.
In a decision dated Oct. 1, Justice Mary Gleason ruled that the reasoning in the decision of the IRB member who turned Gabino Zacarias down last year was “so erroneous that it must be set aside.”
Zacarias, 45, has called Ottawa home since 2008, when he fled his native Guatemala after he and his family were targeted for death by the leader of a street gang called the Maras Salvatruchas. The Citizen featured his story in a series on the Federal Court’s handling of immigration and refugee cases last fall.
A chicken vendor by trade, Zacarias ran afoul of the gang leader — known as Chubby — after he and a fellow vendor told security staff at the market where they worked that Chubby had threatened their family members if they didn’t make weekly payments to him.
That led to Chubby’s arrest, but the extortion demands continued and intensified. Soon after Chubby’s release, he and his gang confronted Zacarias and the other vendor. The other man was killed, but Zacarias escaped.
He moved his family to another village, then came to Canada on a temporary work permit in 2008 — leaving his wife, son and two daughters behind — before seeking asylum the following year.
Though the first IRB member who heard his case found his story credible, he denied his application because he said Zacarias was not a refugee as defined by a United Nations convention and the risks he faced in Guatemala were shared by the population in general.
That decision was overturned on judicial review in January 2011 by Federal Court Judge Simon Noël, who referred Zacarias’s case back to the IRB for a new hearing by a different member.
The IRB’s refugee protection division heard the case for a second time last year. The result was the same: Zacarias’s asylum claim was again denied. But this time, the IRB member based his decision on credibility — ruling, in effect, that he didn’t believe Zacarias’s story.
Zacarias again filed for judicial review by the Federal Court, with Gleason presiding. In her decision, she noted it was exceptional for the courts to overturn credibility determinations made by tribunals. “This, however, is a case where an erroneous credibility finding requires intervention.”
The IRB member’s findings, Gleason found, were “based on impermissible conjecture and conclusions that contradict the evidence before the board and thus cannot stand.”
Moreover, the IRB member buttressed his negative credibility finding by noting that Zacarias sat with his arms crossed and appeared “sullen and arrogant,” which was “not an attitude one would reasonably expect from someone asking a foreign country to save his life.”
Gleason found that “overly subjective conclusions based on an individual’s posture or perceived attitude are not within the appropriate purview of a credibility assessment.”
She ordered the IRB to reconsider Zacarias’s asylum claim yet again.
Jamie Liew, a University of Ottawa law professor who represents Zacarias, said her client, who works as a cleaner, is pleased with the latest decision, but frustrated because he remains in legal limbo.
“Obviously, he would like to have a resolution that’s favourable to him,” Liew said. “It’s hard for him to be away from his family. His kids are growing up without him.”
“Obviously, he would like to have a resolution that’s favourable to him,” Liew said. “It’s hard for him to be away from his family. His kids are growing up without him.”
Read more: http://www.ottawacitizen.com/news/Federal+Court+overturns+erroneous+decision+denying+Ottawa+asylum+claim/7370809/story.html#ixzz29DGvl9Me
