Flores Carrillo v. Can. (M.C.I.) (2008), 377 N.R. 393 (FCA)
MLB headnote and full text
Temp. Cite: [2008] N.R. TBEd. MY.009
The Minister of Citizenship and Immigration (appellant) v. Maria Del Rosario Flores Carrillo (respondent)
(A-225-07; 2008 FCA 94)
Indexed As: Flores Carrillo v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal
Létourneau, Nadon and Sharlow, JJ.A.
March 12, 2008.
Summary:
Flores Carrillo, a citizen of Mexico, sought refugee status, claiming that she could not get adequate state protection from her abusive husband. The Refugee Protection Division of the Immigration and Refugee Board dismissed her claim on the basis that she was not credible, and in any event, had failed to establish that state protection was inadequate. Flores Carrillo applied for judicial review.
The Federal Court, in a decision reported [2007] F.T.R. Uned. 198, allowed the application. The Minister of Citizenship and Immigration appealed. A question relating to the state protection issue was certified.
The Federal Court allowed the appeal.
Aliens – Topic 1323.2
Admission – Refugee protection – Convention refugees and persons in need of protection – Persecution – Protection of country of nationality – The Federal Court of Appeal in answer to a certified question stated that: “A refugee who claims that the state protection is inadequate or non-existent bears the evidentiary burden of adducing evidence to that effect and the legal burden of persuading the trier of fact that his or her claim in this respect is founded. The standard of proof applicable is the balance of probabilities and there is no requirement of a higher degree of probability than what that standard usually requires. As for the quality of the evidence required to rebut the presumption of state protection, the presumption is rebutted by clear and convincing evidence that the state protection is inadequate or non-existent.” – See paragraph 38.
Cases Noticed:
Xue v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 229 (T.D.), refd to. [para. 6].
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 11].
R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 22].
Hinzman et al. v. Canada (Minister of Citizenship and Immigration) (2007), 362 N.R. 1; 2007 FCA 171, refd to. [para. 26].
Kadenko et al. v. Canada (Solliciteur général) (1996), 206 N.R. 272; 143 D.L.R.(4th) 532 (F.C.A.), refd to. [para. 32].
Counsel:
Martin Anderson and David Joseph, for the appellant;
Mordechai Wasserman, for the respondent.
Solicitors of Record:
John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;
Mordechai Wasserman, Toronto, Ontario, for the respondent.
This appeal was heard in Toronto, Ontario, on March 10, 2008, before Létourneau, Nadon and Sharlow, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court by Létourneau, J.A., on March 12, 2008.
