Date: 20050118
Docket: IMM-89-04
Citation: 2004 FC 1724
Toronto, Ontario, January 18th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
ALEXANDER MEJIA HERRERA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant is a citizen of Columbia who claims refugee protection on the basis that he was threatened by paramilitaries. The issue for determination is whether there was a breach of due process in the production of his evidence before the Refugee Protection Division ("RPD"). For the reasons which follow, I find that there was.
[2] There is an obvious discrepancy between the Applicant's statement of events in his PIF, and the statement of events in his supporting witness' solicited affidavit. On this discrepancy, the RPD would be entitled to find that there is insufficient evidence upon which to make a positive refugee protection determination. In the present case, the RPD went further and found that the Applicant's claim is based on a concoction.
[3] However, on the evidence in this case, the variance between the statements could be viewed as some evidence of lack of concoction. That is, the fact that the statements were in variance could be viewed as a signal that the Applicant, and his witness, did not enter into a plan to mislead. In such a case, I find that caution should be taken before jumping to conclusions. On the record, it appears that the RPD did not approach the evidence with caution.
[4] As argued by Counsel for the Applicant in the present application, a serious due process issue exists as to whether there was a fair hearing before the RPD. At the hearing, the Applicant was not allowed to lead his evidence, but instead, the Refugee Protection Officer was instructed to question first, and then, the RPD followed with what I find is accurately described by Counsel for the Applicant as "badgering" cross-examination.
[5] Counsel for the Respondent relies on the consent of the lawyer acting on behalf of the Applicant at the hearing to legitimize the procedure which took place. Having perused the entire transcript of the hearing, I put no weight on the consent. It is quite clear that at the opening of the hearing the RPD had a suspicion that the Applicant's credibility was seriously in question, given the variance between the two statements which were in the written record. Immediately prior to asking for the Applicant's lawyer to consent to the procedure whereby the RPO would lead the claimant's case, the case was simply called "a simple outlined claim". As it turns out, it was anything but.
[6] In my opinion, before an Applicant's lawyer's consent to an unusual procedure can be given weight, full knowledge of the procedure to be adopted must first be conveyed. In the present case, there is no way that the Applicant's lawyer would have known the nature and intensity of the questioning to come. As the procedure adopted in the present case was highly unusual, I find it was incumbent on the RPD to state a reason for why the procedure was adopted before proceeding. No such reason was given. As a result, I can well understand why Counsel for the Applicant in the present review would argue that the RPD approached the case without an open mind.
[7] In my opinion, the conduct of the hearing was unfair, and, thus, I find that the decision was rendered in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted Panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-89-04
STYLE OF CAUSE: ALEXANDER MEJIA HERRERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 9 , 2004
AMENDED REASONS FOR
ORDER AND ORDER BY: CAMPBELL J.
DATED: JANUARY 18, 2005
APPEARANCES:
Matthew Jeffery FOR THE APPLICANT
Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Matthew Jeffery
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
FEDERAL COURT
Date: 20050118
Docket: IMM-89-04
BETWEEN:
ALEXANDER MEJIA HERRERA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR
ORDER AND ORDER
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