Mejia v. Canada ( Minister of Citizenship and Immigration )
IMM-1040-95
Simpson J.
29/7/96
9 pp.
Judicial review of CRDD decision applicant not Convention refugee-Applicant from El Salvador-In 1987 father, brother murdered, probably by guerrillas because another brother joined National Guard-Moved to San Salvador, but in 1991 guerrillas forcing her to pay war tax-Authorities unable to help-When brother disappeared from National Guard, soldiers, armed civilians looking for him at her house-Receiving unsigned summons to National Guard barracks-As believing probably trick from death squad applicant went into hiding-Left country three months after passport issued-CRDD holding minimal possibility of persecution-(1) Respondent's factum not accepted for late filing-On February 19 respondent seeking leave for late filing of factum for use in judicial review application on February 22-Factum late due to counsel's inadvertence-Respondent giving copy of factum to applicant's counsel on February 19, thereby giving him two clear days to review factum-Unacceptable for respondent to disadvantage applicants by providing factum at eleventh hour-Inadvertence not satisfactory explanation-Facta critical element in judicial review proceeding; draw evidence, arguments together and allow parties and Court to prepare properly for hearing-Facta not serving these purposes if not available until few days before arguments made-(2) Judicial review application allowed-Board not making clear finding about whether applicant's fear of persecution objectively well founded-If had no fear, state protection would not be considered, yet Board appears to have used state protection as part of analysis of objective reasonableness of fear-Board also not determining whether reasonable to seek protection given belief authorities agents of persecution-Board's analysis confusing concepts of objective basis for fear of persecution and state protection-Confusion amounting to error of law-Also state protection analysis not approaching question of reasonableness from applicant's perspective-Board apparently inferring from applicant's leisurely departure that not displaying panic expected of one believing target of death squad, but not addressing whether finding causing them to doubt subjective fear.