IMMIGRATION: South African could see reversal of fortunes

IMMIGRATION: South African could see reversal of fortunes

It was like robbing a bank and then yapping about it to the whole world.

Brandon Huntley was obviously well represented since his lawyer was able to persuade Canada’s Immigration and Refugee Board (IRB) that he qualified as a refugee because of the attacks he had apparently endured as a white man at the hands of blacks in Mowbray, a little suburb near Cape Town, South Africa.

This was quite a turning of the tables since it was the blacks who were generally perceived as the persecuted race in South Africa during its apartheid days, a group which still sees the white minority dominate in many areas of commerce and power.

Huntley, 31, testified that he had been stabbed three times during seven racially motivated attacks by black thugs.

There are no police reports verifying these events since Huntley never complained to the local police authorities. The IRB accepted his sworn testimony, as it often must in such cases, since such incidents are often not susceptible to documentation and are difficult to prove through other means.

Huntley’s account scaled the “credibility” hurdle, no doubt assisted by South Africa’s high crime rate.
Remarkably, Huntley also managed to overcome other legal challenges on his way to victory.

Firstly, he had a “nexus” issue. He had to prove that the muggings were racially motivated. If these were random muggings, then he would be considered a victim of crime which does not make him a convention refugee regardless of how severe the harm he endured. Obviously, the Board concluded that these attacks were, in fact, racially motivated. Since no other aggravating factor was cited other than the colour of his skin, the Board seems to be suggesting that all of the other four million white South Africans would have sufficient grounds for establishing themselves here as refugees.

Secondly, democratic states are assumed to be capable of protecting their own citizens. Accordingly, asylum states only offer “surrogate protection” i.e. protection in cases where the claimants’ country can’t or won’t protect them. There is case law which confirms that there is no requirement that the person actually seek the protection of the authorities. However, this only applies when there is evidence that protection will not be forthcoming from the claimant’s own government.

Thirdly, in order to succeed Huntley had to overcome the possibility that he had a reasonable “internal flight alternative”. If he could reasonably relocate himself somewhere safely inside of South Africa, then he would not qualify for protection here. Evidently, the Board felt that there was nowhere for him to live safely inside of his own country.

Since 9/11 Canada has tightened its border security considerably. These efforts have kept terrorists and criminals out of Canada. However, they have also prevented many refugees in urgent need of protection from reaching our shores. These are vulnerable men, women and children who may have witnessed and survived genocides and other atrocities in lawless and remote lands. Many of these victims have no money, no identity or travel documents, let alone the work permit Huntley had in Canada. Our refugee board was established in 1989 to assess such claims. However, now that its illicit supply of claimants has now been mostly choked off, the Board must sometimes scrape the bottom of its caseload to find a deserving case in order to justify its continued existence.

Our Department of Justice (DOJ) had 15 days to decide if it wanted to appeal this decision. Any lawyer worth his salt would have told Huntley not to discuss his case publicly until this time ran out. By speaking publicly about his victory, Huntley ensured his 15 minutes of fame. However, the Board’s reasoning has now been exposed for the whole world to see. It is no surprise that this decision has triggered international outrage which in turn forced our DOJ to appeal this decision to the Federal Court.
I have little doubt – practically none, in fact – that this decision will be overturned.

Huntley’s victory was most likely a fluke and only represented the view of one member of the IRB and not necessarily that of Canada or our leadership.

Huntley could have enjoyed this victory quietly. However, now he is more likely going to suffer a harsh reversal of fortunes …and a one-way ticket home.

————————————-

Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at reporter@migrationlaw.com.