Date: 20060125
Docket: IMM-1642-05
Citation: 2006 FC 37
BETWEEN:
SAMNANG CHUOP
Applicant
- and -
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
PINARD J.
[1] This is an application for
judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the IRB), dated February 11, 2005, ruling that
the applicant, who was not considered credible, was not a “Convention refugee”
or a “person in need of protection” within the meaning of sections 96 and 97,
respectively, of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27.
[2] Samnang Chuop (the applicant), a
citizen of Cambodia, alleges that he fears persecution because of his perceived
political opinions.
[3] The applicant submits, first, that
the IRB erred in criticizing him for having taken more than a week before
claiming refugee status when arriving in Canada. In my opinion, the applicant
is right, since he had a visa that was valid for six months.
[4] In Houssainatou Diallo v.
Minister of Citizenship and Immigration, 2002 FCT 2004, I stated:
[9] . . . Finally, the explanations given by the
plaintiff about the delay in making the claim were solidly based on evidence
and seem quite reasonable to me: she was entitled to be in Canada on her
student visa and, as appears from her physician's letter, she was suffering
from severe depression. . . .
[5] The situation in this case is
essentially the same as the one in Diallo. Moreover, the delay of about
one week is not in itself an inexcusable delay.
[6] The applicant says the IRB also
erred in noting that, since he had had opportunities to travel and had not
taken advantage of these to file a claim, the applicant undermined his own
credibility concerning his subjective fear of persecution.
[7] But the latter testified that he
had decided to leave Cambodia after Som Rathana had threatened him:
Q. What happened that made you decide to
leave Cambodia and come to Canada to claim refugee status?
. .
.
- (Because my life was threatened.)
Q. Okay, by whom?
R. From Rathana and his group.
Q. And when did they threaten your life?
R. Think it=s 2nd of February 2004... Oh, January,
sorry. Because, okay, because I give a speech in public.
[8] The IRB erred, therefore, in
criticizing the applicant for having failed to claim during his trips to Sweden
in 1998, and Holland in 2000, since his real fear of persecution did not begin
until 2004, after Som Rathana uttered his threats.
[9] In my opinion, these two errors
related to the assessment of the applicant’s credibility taint the decision as
a whole and reduce the weight the IRB may have given to the contradictions and
omissions otherwise identified in the applicant’s testimony.
[10] The intervention of this Court is therefore
warranted and the application for judicial review is allowed. The matter is
returned to the IRB for redetermination by a differently constituted panel.
Yvon Pinard
_________________________________
Judge
OTTAWA, ONTARIO
January 25, 2006
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF
RECORD
DOCKET: IMM-1642-05
STYLE OF
CAUSE: SAMNANG CHUOP v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Montréal, Quebec
DATE OF
HEARING: December 13, 2005
REASONS
FOR ORDER: The Honourable Mr. Justice Pinard
DATE OF
REASONS: January 25, 2006
APPEARANCES:
Éveline Fiset FOR
THE APPLICANT
Édith Savard FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Éveline Fiset FOR
THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney General of Canada
Date: 20060125
Docket: IMM-1642-05
Ottawa, Ontario, the 25th day of January, 2006
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
SAMNANG CHUOP
Applicant
- and -
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial
review is allowed. The decision of the Refugee Protection Division of
the Immigration and Refugee Board (the IRB), dated February 11, 2005, ruling
that the applicant is not a “Convention refugee” or a “person in need of
protection” within the meaning of sections 96 and 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, is set aside and the matter is
referred back to the IRB for redetermination by a differently constituted
panel.
Yvon Pinard
_________________________________
Judge
Certified true translation
François Brunet, LLB, BCL
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