Date: 20070927
Docket: IMM-4725-06
Citation: 2007 FC 968
Ottawa, Ontario, September 27, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ERICKA MARLENE MARTINEZ REQUENA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] The Refugee
Protection Division of the Immigration and Refugee Board (Board or RPD) is
bound to afford procedural fairness to refugee claimants. This is reflected in
paragraph 170(e) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act), which provides that the RPD, in any hearing before it,
"must give the person and the Minister a reasonable opportunity to present
evidence, question witnesses and make representations". It is also
reflected in Rule 29 of the Refugee Protection Division Rules,
SOR/2002-228, which regulates the disclosure of documents. Rule 29(2) provides
that, if the RPD wants to use a document at a hearing, the RPD must provide a
copy of the document to each person in advance of the hearing. Part 5 of the
Board’s Policy on Country-of-Origin Information Packages in Refugee Protection
Claims further states that it is the policy of the Board "to create,
implement, and use standard [Country-of-Origin] packages to serve as the
Board's disclosure of information in all [Refugee Protection Division]
proceedings” [emphasis added].
[2] In
accordance with this policy, prior to each hearing, the index to the relevant
Country-of-Origin package is disclosed to the refugee claimant. The index is
then tendered as an exhibit at the commencement of the hearing. With this
introduction, I turn to the case now before the Court.
[3] The
present case involves a claim for refugee protection made by Ericka Marlene
Martinez Requena, a citizen of Bolivia. She says that she is a peasant rights
advocate who fears persecution by the Bolivian authorities and security forces,
including the military and the police.
[4] At
the commencement of her refugee hearing, the Board confirmed orally that the
documents that would be used in the determination of her claim would be certain
documents received from Canadian immigration when Ms. Martinez Requena arrived
in Canada and the information package entitled "Bolivia 2003". Those
documents were marked as Exhibits R-1 and R-2, respectively.
[5] Not
disclosed to Ms. Martinez Requena, whether in the Country-of-Origin package or
otherwise, was Response to Information Request BOL 43345.E, dated February 10,
2005 (RIR). The Board relied extensively on this document in order to find
that state protection was, and is, available in Bolivia for Ms. Martinez
Requena.
[6] I
am satisfied that the Board, by relying upon a document not disclosed to her, deprived
Ms. Martinez Requena of a reasonable opportunity to participate in her refugee
hearing and so failed to afford her procedural fairness. The RIR was obviously
material and pertinent to her claim, as evidenced by the Board’s substantial
reliance upon the document in its reasons. The RIR should have been disclosed
to Ms. Martinez Requena in advance of her hearing.
[7] Before
moving to consider the consequence of the failure to disclose the RIR, I note
that this was not the only error committed by the RPD. It also erred when it
found Ms. Martinez Requena had no subjective fear of persecution in Bolivia
because she had returned to Bolivia in 2004 from Chile and in 2005 from Uruguay.
When considering this finding, it is important to note two things. First, the
Board made no adverse finding with respect to Ms. Martinez Requena's credibility.
Thus, the Board must be presumed to have accepted the truthfulness of her
testimony. Second, the mere fact that a refugee claimant returns to their
country of nationality is not determinative of whether they possess a subjective
fear. For example, evidence of a claimant’s belief that country conditions
have changed or evidence of a claimant’s temporary visit while he or she
remained in hiding would be evidence inconsistent with a finding of a lack of
subjective fear.
[8] Given
Ms. Martinez Requena's explanation as to why she returned to Bolivia, the Board
could not find that she had no subjective fear of persecution unless it found
her evidence to be incredible (which it did not). As the Federal Court of
Appeal noted in Shanmugarajah v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 583 at para. 3 (C.A.),
"it is almost always foolhardy for a Board in a refugee case, where there
is no general issue as to credibility, to make the assertion that the claimants
had no subjective element in their fear".
[9] Returning
now to the consequence of these errors, counsel for the Minister submitted that
the Board’s determinative finding was that Ms. Martinez Requena had failed to
rebut the presumption of state protection. Counsel therefore argued that it
would be futile to return the case to the RPD.
[10] I
have two difficulties with this submission. First, as noted by my colleague
Mr. Justice Blanchard in Chalal v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 497 at para. 47 (T.D.), it
is rare for a remedy to be withheld from an applicant where they have been
denied their right to full and complete disclosure and a fair hearing. Second,
in my view, the Minister’s submission does not properly take into account that,
in the present case, the state of Bolivia was said to be the agent of
persecution and Ms. Martinez Requena's testimony was found to be credible.
[11] At
paragraph 8.427 of his text Immigration Law and Practice, 2d ed.
(Markham, Ont.: LexisNexis Butterworths, 2005), Lorne Waldman writes as
follows:
[…] there is a distinction
between cases where state actors are the agents of persecution and where the
state is unable to provide protection to its citizens. In the first scenario
the claim should only be assessed on the claimant’s unwillingness to seek the protection
of the state. This is the necessary implication of the fact that the
persecutors fear persons from state agents. If the agents of persecution are
state agents, then there is no reason to assess the claim based on inability to
seek protection. Once the persecutors are state agents, inability to obtain
protection does not arise. The only possible exception might arise in
circumstances where the agents of persecution are acting on their own without
the knowledge or consent of the central authority. However, in order for such a
situation to arise there would have to be convincing evidence that the central
authority was unaware of the acts of its local agents and that it would be in a
position to provide protection in the future. Thus the only issue to be
addressed by the Board in circumstances where the agents of persecution are
agents of the state or persons acting on behalf of the state is whether or not
the claimant has a well-founded fear of harm which is sufficiently severe to
constitute persecution and whether as a result of this fear he or she is
unwilling to avail himself or herself of the state’s protection. [emphasis
added]
[12] In
view of Ms. Martinez Requena's unchallenged evidence about her treatment in
Bolivia and her unwillingness to approach the state for protection, I cannot
conclude that as a matter of law it is futile to remit this matter to the
Board. The application for judicial review is therefore allowed.
[13] Counsel
posed no question for certification and I am satisfied that no question arises
on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed, and the
decision of the Refugee Protection Division rendered on August 4, 2006 is
hereby set aside.
2. The matter is remitted for redetermination by a differently
constituted panel of the Refugee Protection Division.
“Eleanor R. Dawson”
FEDERAL COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: IMM-4725-06
STYLE
OF CAUSE: ERICKA
MARLENE MARTINEZ REQUENA, Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 18, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: SEPTEMBER 27, 2007
APPEARANCES:
J. BYRON M. THOMAS FOR
THE APPLICANT
ASHA GAFAR FOR
THE RESPONDENT
SOLICITORS OF RECORD:
J. BYRON M. THOMAS FOR
THE APPLICANT
BARRISTER
& SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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