Date: 20090102
Docket: IMM-1541-08
Citation: 2009 FC 4
Ottawa, Ontario, January 2, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
MYRA LAWAS MAURICIO CHICO and
JOHN MISHAEL LAWAS MAURICIO (minor)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicants, Myra Lawas Mauricio Chico and her fourteen-year-old son, John
Mishael Lawas Mauricio, challenge a decision by the Refugee Protection Division
of the Immigration and Refugee Board (Board) refusing to re-open their refugee
claims as permitted by s. 55 of the Refugee Protection Division Rules, SOR/2002-228
(RPD Rules).
I.
Background
[2]
The
Applicants came to Canada from the Philippines via the Netherlands in late 2001.
Ms. Chico sought refugee protection on the strength of allegations that
she faced political persecution in the Philippines because of
her advocacy on behalf of women’s equality in the armed forces. This activism,
she said, had caused the authorities to bring baseless criminal charges against
her culminating in the issuance of a warrant for her arrest.
[3]
In
an August 2, 2007 decision the Board rejected Ms. Chico’s claim to refugee
protection. The Board found that Ms. Chico’s concern about the risk of brutal
treatment in the Philippines was a “gross embellishment”. The Board also
rejected Ms. Chico’s allegation that she faced a politically motivated
prosecution in the Philippines. The Record indicates that the Board had
before it conflicting evidence concerning the existence of an outstanding
warrant for Ms. Chico’s arrest. She tendered evidence that she was facing
charges and arrest in the Philippines, but this was
contradicted by a report from Interpol. The Board resolved this issue as
follows:
The principal claimant submitted
documents regarding various charges against her. It appears that the charges of
grave misconduct and/or dishonesty were dismissed. There are other apparent
charges outstanding, none of them indicating that an arrest warrant was
issued. A report by Interpol, dated October 17, 2006, seems to confirm that.
Her allegations that she would be in danger if she returned to the Philippines are not born out by the facts.
[…]
However, the claimant has no criminal
record, and is not indicted for anything. There is no evidence that the
claimant faces arrest if she returns to the Philippines unless the allegations against her are
true rather than fabricated as she alleges.
[Emphasis added.]
[4]
The
Board concluded by finding that adequate state protection existed in the Philippines to address
any of Ms. Chico’s concerns about political persecution.
[5]
Ms. Chico
applied for leave to judicially review the Board’s decision but leave was
refused by Order of this Court on January 15, 2008.
[6]
On
October 3, 2007, Ms. Chico brought a motion before the Board seeking to re-open
her refugee claim based on her subsequent receipt of a certified copy of a
warrant for her arrest. Her Notice of Motion stated the basis for relief as
follows:
i.
Ms. Chico’s
refugee hearing took place on March
3, 2006, February 7, 2007, and finally on April 26, 2007. Her refugee claim was
denied by a decision dated Augusts [sic] 16, 2007.
5. In its decision,
the Board found that the applicant had not provided evidence of the allegation
that criminal charges are outstanding against her. The Board found that the
applicant has no criminal record, and there is no evidence of the arrest
warrants. The Board further found that there is no evidence that the claimant
faces arrest if she returns to the Philippines
unless the allegations against her are true rather than fabricated as she
alleges.
[…]
7. On September 29,
2007, the applicant’s received the certified copies of her arrest warrant. The
applicant’s brother was just recently able to get the copies of the arrest
warrant, even though he had unsuccessfully attempted on various other occasions
to obtain the same. The applicant’s brother was able to use one of his
contacts to get the Trial Court Registry in Quizan district to issue the copy
of those arrest warrants. The applicant brought the copies of the arrest
warrant to my office on Monday, and we are filing this motion as soon as could
prepare it.
8.
The copies
of the arrest warrants have not been submitted prior to this motion being
filed. The central issue for refusing the refugee claim of the applicant is
because the applicant could not provide the copies of the arrest warrant issued
against her. The applicant’s brother and other family members had attempted to
get the copies of arrest warrants, however, they were told that the warrants
would be only issued if the applicant applies in person. Finally the
applicant’s brother was able to use a contact to obtain these warrants.
[…]
19. The scheme of the
Act and the Refugee Protection Division Rules are such that the Refugee Board
has the power and jurisdiction to reconsider its decisions when there has been
a failure of natural justice: Gill, Plawinder Kaur and MEI, F.C.A., No.
A-476-86, January 22, 1987. It would be a failure of natural justice if
Ms. Chico is not allowed to submit the new evidence and be allowed to
testify on this issue.
20 It is submitted in
this case, that though Ms. Chico was aware that arrest warrants had been
issued against her, she was not able to obtain them. These warrants prove
beyond reasonable doubt that Ms. Chico has subjective, as well as
objective fear of returning to Philippines. These warrants also prove
that the State cannot protect her as she fears the State itself.
[7]
The
Board declined to re-open the Applicant’s refugee hearing on the strength of
the following brief endorsement:
“The Federal Court dismissed the
application by the claimant. No breach of natural justice on part of the
member has been found following a review of claimant application to re-open.
Application to re-open is dismissed.” – March 4, 2008, R. Dawson.
II. Issues
[8]
(a) Is
the Board required to give reasons where it refuses to re-open a refugee
hearing and, if so, were the Board’s reasons in this case adequate?
(b) Did
the Board err in its decision not to re-open the Applicant’s refugee hearing?
III. Analysis
[9]
There
is no need to consider the standard of review concerning the Board’s reasons
because I can identify no such error. My review of the adequacy of the Board’s
substantive decision involves a question of mixed fact and law which will be
assessed on the standard of reasonableness.
[10]
It
is unnecessary for me to decide whether there is a legal duty for the Board to
give reasons when it refuses to re-open a refugee claim because here the Board
did provide reasons albeit in the form of a rather cryptic endorsement. Rule
55 of the RPD Rules permits the Board to re-open a refugee claim only where a
breach of natural justice has occurred: see Ali v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1394, 2004 FC 1153 at
paras. 24-25; Nazifpour v. Canada (Minister
of Citizenship and Immigration), 2007 FCA 35, [2007] F.C.J. No. 179 at para. 82; Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No. 1632 at
para. 7. In
the case of Ms. Chico the Board clearly concluded that no breach of natural
justice had been shown. I am satisfied that the reasons given are sufficient
to support the Board’s decision although their brevity does expose the decision
to a somewhat more probing assessment on judicial review.
[11]
After
her refugee claim was rejected, Ms. Chico obtained a copy of an allegedly
outstanding warrant for her arrest. She wanted the Board to consider this
evidence, and, on that basis, made a motion to re-open the refugee protection claim.
There is nothing in the record before me to indicate that Ms. Chico was
concerned at the time about the fairness of the Board’s treatment of her
refugee claim or, in particular, that she required more time to obtain
additional corroborating evidence. Nevertheless, she now claims that the Board
was unfair to her by failing to advise her of its concern about the existence
of an outstanding arrest warrant and the need for related corroborative evidence.
[12]
During
the initial refugee hearing, the Board made it very clear to Ms. Chico
that her credibility was in issue with respect to her allegation of
persecution. The Board had before it conflicting evidence concerning the
status of an alleged prosecution against Ms. Chico, and she knew that issue
could be important to the outcome of her claim. I do not agree that there was any
duty on the Board to inform her that the failure to produce a copy of the
outstanding arrest warrant might be of significance to its resolution of the
evidentiary conflict. Ms. Chico was represented by counsel and she would
be taken to appreciate the importance of producing all available corroborating
evidence without the need to be told.
[13]
Ms. Chico’s
claim to protection was only finally determined more than two years after it
was perfected and after a number of adjournments. There is nothing to suggest
that she asked for more time to obtain corroborating evidence and, indeed, it
appears that she was satisfied with the case presented on her behalf. When
leave to apply for judicial review from the Board’s decision was brought in
this Court, Ms. Chico made no allegation of a breach of any duty of
fairness in the process below. And when Ms. Chico brought the motion to
the Board to re-open her refugee hearing, her only assertion was that the new
evidence had been difficult to obtain and that it would be a failure of natural
justice not to receive it. Having never alleged that the Board breached a duty
of fairness either on the motion to re-open or on the application for leave for
judicial review, there is no basis for asserting now, for the first time, that
the Board somehow acted unfairly when it dismissed Ms. Chico’s claim on
the merits.
[14]
A
motion to re-open a claim for refugee protection under Rule 55 of the RPD Rules
will only succeed if it is established that there was a failure by the Board to
observe a principle of natural justice: see Ali, above. Relief is not
available for the purpose of supplementing or bolstering the initial
evidentiary record. Were it otherwise, there would be no finality to a refugee
claim because it could always be re-opened for the receipt of additional
evidence. On this point, I subscribe to the views expressed by Justice Michael
Kelen in Chen v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1731, 2002 FCT 1267 at
paras. 4 and 6:
4 The sole issue in this application
is whether the Board erred by concluding it did not have jurisdiction to reopen
the hearing because there was no breach of the rules of natural justice.
[…]
6 The applicant's remaining arguments
are directed towards the merits of her claim. The Board, in its initial
decision, rejected the credibility of the applicant notwithstanding the letter
from the Bishop confirming that the applicant is a member of the underground
Roman Catholic Church. While I may or may not agree with this credibility
finding, it does not raise a breach of natural justice. A breach of natural
justice relates to the failure to have a fair hearing. There is no allegation
that the Board which heard this refugee claim was biased, or that the applicant
did not have a fair hearing in some other respect. The Board does not have the
jurisdiction to order a hearing reopened simply to review the merits of a
claim. Accordingly, the Board did not err in refusing to reopen the hearing.
IV. Conclusion
[15]
There
is no merit to this application and the Board’s refusal to re-open is
unimpeachable. The application is accordingly dismissed. Neither party
proposed a certified question and no issue of general importance arises on this
record.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed.
“ R. L. Barnes ”
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