Date: 20060421
Docket: IMM-3370-05
Citation: 2006 FC 506
Ottawa, Ontario, April 21, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
INGRID YULIMA MURCIA ROMERO
(a.k.a. Ingrid Yulima Murcia)
IVONNE ANDREA MURCIA ROMERO
(a.k.a. Ivonne Andrea Murcia)
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Ingrid
Yulima Murcia Romero and her daughter, Ivonne Andrea Murcia Romero
(collectively, the Applicants) are Columbian citizens who base their refugee
claim on a fear of revolutionary guerrillas and paramilitary forces who seek to
harm the Applicants as a result of the political opinion of Ms. Ingrid Romero’s
father. Ms. Romero was married to an American citizen and, on that basis, both
she and her daughter held United States Permanent Resident cards that expired
in March and December 2002, respectively. Ms. Romero, while not divorced from
her husband, has not lived with him for some time. The Applicants came to Canada from the United
States
in June 2002 and made their claim for refugee protection.
[2] In
a decision dated April 22, 2005, a panel of the Refugee Protection Division of
the Immigration and Refugee Board (Board) determined that the Applicants were
not Convention refugees or persons in need of protection. The claims were
rejected on two bases:
- The Applicants
failed to persuade the Board that they had lost their status in the United
States and, therefore, pursuant to s. 98 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), were excluded as
Convention refugees or persons in need of protection as persons who fell
within section E of Article 1 of the United Nations Convention Relating
to the Status of Refugees (Refugee Convention).
- Because of a number
of credibility concerns and the lack of an objectively well-founded fear
of persecution, the Board was not convinced that there was a serious
possibility that Ms. Romero would be persecuted at the hands of the
Revolutionary Armed Forces of Columbia (Fuerzas Armadas Revolucionarias de
Colombia or FARC) or paramilitaries if returned to Colombia, or that she
faced a risk to her life or of cruel and unusual treatment or punishment
or be tortured, should she return to Colombia.
Issues
[3] The
Applicants, in their initial submissions, raised two issues:
- Did
the Board err by finding that the Applicants were excluded by Article 1(E)
of the Refugee Convention?
- Did
the Board err by finding that Ms. Romero was not credible or had not
established a well-founded fear of persecution?
Analysis
[4] In
this case, either of the two issues considered by the Board is determinative of
the Applicants’ claim. Thus, even if the Board erred on one of its two key
determinations, the decision will stand if the Board did not err with respect
to the other.
Issue
#1:
Did
the Board err by finding that the Applicants were excluded by Article 1(E)
of the Refugee Convention?
[5] As
noted, the Board determined that the Applicants were excluded pursuant to
Article 1(E) of the Refugee Convention and s. 98 of the IRPA. Those
provisions state as follows:
|
United Nations Convention Relating to
the Status of Refugees
Article 1(E). This Convention shall not
apply to a person who is recognized by the competent authorities of the
country in which he has taken residence as having the rights and obligations
which are attached to the possession of the nationality of that country.
Immigration
Refugee Protection Act
98.
A person
referred to in Section E or F of Article 1 of the Refugee Convention is not a
Convention Refugee or a person in need of protection.
|
|
Convention des Nations unies relatives au
statut des réfugiés
Article 1(E). Cette Convention ne sera pas applicable à une
personne considérée par les autorités compétentes du pays dans lequel cette
personne a établi sa résidence comme ayant les droits et les obligations
attachés à la possession de la nationalité de ce pays.
Loi sur l’Immigration et la protection des réfugiés
98. La personne visée aux
sections E ou F de l’article premier de la Convention sur les réfugiés ne
peut avoir la qualité de réfugié ni de personne à protéger.
|
[6] The
first task before me is to establish a standard of review for the Board’s
decision on the exclusion issue. The Applicants held permanent resident status,
as evidenced by their Permanent Resident Cards. These cards were described as
“conditional” in that they expired two years after issuance but could be
extended pursuant to the provisions of s. 216 of the U.S. Immigration
and Naturalization Act. Thus, the Board’s decision, in part, required that
the Board analyze and interpret relevant provisions of this statute. In my
view, this particular aspect of the Board’s decision is a question of law that
is reviewable on a correctness standard. However, provided that the Board’s interpretation
of this statute is correct, its findings of whether the Applicants meet the
requirements of s. 98 of the IRPA have been held to a standard of review
of patent unreasonableness (Hassanzadeh v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1886 at para. 18 (F.C.); Choezom
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1329 at
para. 8).
[7] In
this case, the Board’s decision revolves around the right of the Applicants to
re-acquire Permanent Resident cards, given that their existing cards had
expired.
[8] The recent
case law on this issue has established the relevant burden of proof for each
party in determining whether Article 1(E) applies (Hassanzadeh, above; Canada
(Minister of Citizenship and Immigration) v. Choovak, [2002]
F.C.J. No. 767 (T.D.); Shahpari v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 429 (T.D.)). Initially, the
burden is on the Minister to establish a prima facie case that a
claimant can return to a country where he or she enjoys the rights of the
nationals of that country. At that point, the onus shifts to the claimant to
demonstrate why, having allowed the permanent residency to expire, she could
not have re-applied and obtained a new permanent resident card.
[9] The Respondent
argues a prima facie case for exclusion was established, by the evidence
showing the timeline of Ms. Romero’s marriage, her visits to the United
States,
and her acquisition of residency status. I am not persuaded that the
Respondent’s position is correct or reasonable.
[10] First, let me
turn to what was before the Board with respect to the relevant U.S. law. Section
216 of the U.S. Immigration
and Naturalization Act deals, generally, with “Conditional Permanent
Resident Status for Certain Alien Spouses and Sons and Daughters”. Section
216(a)(1) provides that, when an “alien spouse” and their children first
acquire permanent resident status, this status is on a “conditional basis”.
That is what had happened to the Applicants; they were each issued a
conditional permanent resident card. Pursuant to s. 216(c)(1), in order for the
conditional basis to be removed,
[t]he alien spouse and the petitioning
spouse (if not deceased) jointly must submit to the Attorney General
[within 90 days before the second anniversary of the issuance of the
conditional permanent resident card], a petition which requests the removal of
such conditional basis . . . [emphasis added.]
[11] During the
hearing, Ms. Romero testified that she could not locate her estranged husband
and that he no longer supported her residency, and therefore she could not
renew her residency card. Further, she testified that she had received advice
from a U.S. attorney
that she would lose her status. A presumption of truthfulness applies to testimony
given under oath (Maldonado v. Canada (Minister of Employment and
Immigration), [1980] 2 F.C. 302 (C.A.)).
[12] It appears,
from reading s. 216, that it is possible to file a late petition. However, at
that stage, Ms. Romero would have had to establish “good cause and extenuating
circumstances for failure to file the petition during the period described” (s.
216(2)(B)). Beyond the bare words of this provision, there is no evidence as to
the practice or policy of the Attorney General in how this provision is to be
applied.
[13] In my mind,
the position of Ms. Romero’s husband is critical to the extension or
re-acquisition of her permanent resident status. Indeed, it appears to me that
Ms. Romero would be on very weak grounds without the co-operation of her
husband. In its reasons, the Board does not even refer to the requirement of
spousal support for a removal of conditional status. Thus, the Board either
misinterpreted or failed to have regard to the relevant U.S. law on this
point.
[14] The Respondent
relies on a number of cases to support his position. Those cases can be
distinguished. For example, as in Hassanzadeh, above, the Applicants in
this case claim that their residency status has expired. However, the
similarities end there. In Hassanzadeh, the Iranian claimant was the
estranged wife of a naturalized German citizen of Iranian origin. They had a
child who was a German citizen by birth. The claimant’s “unlimited right of
residence” had expired and there was some question as to whether her residence
would be considered abandoned due to her long absence from Germany. However,
the balance of evidence clearly demonstrated that “[i]n case Mrs. Hassanzadeh
will decide to live in Germany again, she is allowed by law to do so” (at para.
13) and “there would seem to be no problem for the adult applicant to renew her
residency status in Germany, especially because of
her son” (at para. 15).
[15] Another similar, yet distinguishable, situation occurred in Hadissi
v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No.
436 (T.D.), where the claimant alleged that her U.S. permanent
residence status was conditional and had been revoked. However, the evidence
indicated that the claimant had fabricated the conditional status of her
residency. Associate Chief Justice Jerome stated at para. 14 that:
[C]ogent
evidence from American and Canadian immigration officials established that Ms.
Hadissi's permanent resident status was active and current. Unlike the Mahdi
case, therefore, the evidence here did not demonstrate that there was a serious
possibility that American authorities would no longer recognize her as a
permanent resident and deny her the right to return to the United States.
[16] Having
carefully reviewed the record and arguments of the parties, I conclude that a prima
facie case was not made out by the Minister and the Board erred in its
decision on the issue of exclusion. However, a conclusion that the Board erred
on this issue is not necessarily determinative of this claim. If the Board’s
decision on the “Inclusion” is correct, the decision will be upheld regardless
of any errors in the “Exclusion” issue.
Issue
#2:
Did the Board err by finding that Ms. Romero was not credible or had not
established a well-founded fear of persecution?
[17] The
Applicants question three areas of the Board’s decision. In summary form their
arguments are as follows:
·
The
Board erred in finding that there was no evidence to connect the expulsion of Ms.
Romero’s father from his farm by FARC guerrillas to possible FARC persecution
in Bogotá. The Board failed to consider evidence that the threats were based on
the father’s position as a retired police officer and an outspoken activist.
The Board also erred by finding that there was insufficient evidence to identify
the agents of persecution as FARC guerrillas. There was a link to FARC’s
expulsion of the father from his farm, the father’s community activity, as well
as FARC’s well-known persecution of community activists.
- The
Board was wrong to draw a negative credibility inference from Ms. Romero’s
identification of the threatening callers and of the agents of
persecution. Ms. Romero stated that she did not know in certain terms the
identity of her persecutors, but that she was willing to infer their
identities based on reasonable links to her father’s activities. The Board
also erred by finding that Ms. Romero had identified paramilitaries as an
agent of persecution. The Board found that Ms. Romero had done so in order
to connect her claim to atrocities committed by those paramilitaries (that
is, the murder of 60 community activists in 2001, which was documented in
a newspaper article). Ms. Romero had only recently found the article
discussing the paramilitaries’ activities, but there were other reasons
upon which the Applicant and the Board could objectively find that the
paramilitaries were agents of persecution. The reasons include that they
were active in her father’s community and that her father was a community
activist.
- It was
unreasonable for the Board to rely on the evidence that none of the
Applicants’ family members had been harmed. The adult Applicant testified
that her siblings did not live with her father and that the whole family
moved around, and that her father was armed and able to protect himself. The
Board misconstrued the evidence as a claim that the persecutors were
threatening the Applicant’s entire family, when it was clear that only Ms.
Romero and her daughter were the focus of threats, in order to put
pressure on the father.
[18] Adverse credibility
findings and a finding that a well-founded fear has not been demonstrated are
questions of fact. As such, the appropriate standard of review is patent
unreasonableness. That is, this Court should defer to the Board’s expertise and
only intervene if the Board based its decision on an erroneous finding of fact
that was made in a perverse or capricious manner or without regard to the
evidence before it.
[19] In my view,
the Applicants simply dispute the manner in which the Board interpreted and
weighed the evidence on both sides of the issue. The Applicants have put
forward alternative explanations and interpretations of the evidence before the
Board. However, when the standard of review is, as here, one of patent
unreasonableness, it is not sufficient to present an alternative line of
reasoning. Rather the Applicants must establish that the conclusion of the
Board is not supported, in any way, by the evidence (Sinan v. Canada (Minister
of Citizenship and Immigration), [2004] F.C. J. No. 188 at para.11 (F.C.)).
The Applicants have not established that the Board’s conclusions were patently
unreasonable or unsupported by the evidence.
[20] In
particular, it was not unreasonable for the Board to take note that no member
of the family, including the Applicants, had ever been attacked by FARC or the
paramilitaries. This is relevant evidence in assessing the validity of a
threat. Additionally, I do not agree with the Applicants that the evidence they
presented only indicates a threat against the two of them and no other family
member. It is within reason for the Board to assess the threat as one against
her family as a whole, given that the ultimate target of the alleged agents of
persecution was the father. The Board also relied on the limited time period in
which the threats were made, from October to December of 2001, in finding that
there was no continuing interest in the Applicants’ family. In addition, the
Board also cited supporting evidence for its conclusion, based on the
sophistication and effectiveness of FARC terror activities.
[21] In sum, the
Board came to reasonable conclusions supported by the evidence and provided
cogent reasons for its decision. The Board did not err on this issue.
Additional Issue
[22] In
their further memorandum of argument, submitted after this Court’s decision in Thamotharem
v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, the
Applicants added a third issue. That issue is whether the Board erred by
applying the IRB Chairperson’s Guideline 7, which Guideline was found by the
Court in Thamotharem to fetter the discretion of Board members. The
Applicants concede that they did not raise the issue of Guideline 7 at the
Board hearing. Further, they acknowledge that there does not appear to be any
unfairness in the manner in which the hearing was conducted.
[23] Following the decision
in Thamotharem, above, a number of Court files, with IMM-9766-04 as the
lead file, were consolidated for purposes of hearing and determining the
Guideline 7 issue (Order dated February 20, 2006). That hearing was held before
Justice Mosley on March 7 and 8, 2006 (the Consolidated hearing). The question
raised by the facts of this application is whether, by not objecting to the use
of Guideline 7 at the hearing, the Applicants have waived their right to raise
this issue at the judicial review stage. This issue, while not considered by
the Court in Thamotharem, was before the Court in the Consolidated
hearing. In light of this, the parties agreed to be bound by the decision of
Justice Mosley, including the possibility of certification of a question.
[24] The
decision of Justice Mosley was released on April 10, 2006 (Benitez v. Canada (Minister
of Citizenship and Immigration), 2006 FC 461). In his decision, he
dismissed all of the applications for judicial review with respect to the
Guideline 7 issues. Of particular relevance to the facts in this application,
Justice Mosley concluded as follows, at para. 237:
The common law principle of waiver
requires that an applicant must raise an allegation of bias or a violation of
natural justice before the tribunal at the earliest practical opportunity. If
counsel were of the view that the application of Guideline 7 in a particular
case would result in a denial of their client’s right to a fair hearing, the
earliest practical opportunity to raise an objection and to seek an exception
from the standard order of questioning would have been in advance of each
scheduled hearing, in accordance with Rules 43 and 44, or orally, at the
hearing itself. A failure to object at the hearing must be taken as an implied
waiver of any perceived unfairness resulting from the application of the
Guideline itself.
[25] On
this point, I adopt the reasoning of Justice Mosley and the conclusion. The
Applicants’ failure to raise the Guideline 7 issue at the hearing before the
Board must be taken as an implied waiver of any perceived unfairness resulting
from the application of Guideline 7.
Conclusion
[26] In
conclusion, while I find that the Board erred in its finding on “Exclusion”
under Article 1(E) of the Refugee convention, I am satisfied that the Board did
not err in its “Inclusion” determination. On the issue of the applicability of
the conclusions of the Court in Thamotharem, above, I find that the
Board did not err by applying Guideline 7.
[27] Neither
party proposed a question for certification on either of the first two issues.
Questions were certified in both Thamotharem, above, and in the
Consolidation hearing, which questions have direct relevance to the application
before me and which will be certified for purposes of this judicial review. I
adopt the questions certified by Justice Mosley in Benitez, above, as
questions to be certified in this application.
ORDER
This Court orders that this application for judicial
review is dismissed with the following questions certified as serious questions
of general importance:
1.
Does Guideline 7,
issued under the authority of the Chairperson of the Immigration and Refugee
Board, violate the principles of fundamental justice under s. 7 of the Charter
of Rights and Freedoms by unduly interfering with claimants’ right to be
heard and right to counsel?
2.
Does the
implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate
principles of natural justice?
3.
Has the
implementation of Guideline 7 led to fettering of Refugee Protection Division
Members’ discretion?
4.
Does a finding that
Guideline 7 fetters a Refugee Protection Division Member’s discretion
necessarily mean that the application for judicial review must be granted,
without regard to whether or not the applicant was otherwise afforded
procedural fairness in the particular case or whether there was an alternate
basis for rejecting the claim?
5.
Does the role of
Refugee Protection Division Members in questioning refugee claimants, as
contemplated by Guideline 7, give rise to a reasonable apprehension of bias?
6. Is Guideline 7 unlawful because it is
ultra vires the guideline-making authority of the Chairperson
under paragraph 159 (1) (h) of the Immigration and Refugee Protection
Act?
7. When must an applicant raise an
objection to Guideline 7 in order to be able to raise
it upon judicial review?
“Judith A. Snider”
Email this Content