Date: 20080417
Docket: IMM-159-07
Citation: 2008
FC 496
Toronto, Ontario,
April
17, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
CLAUDIA ALEJANDRA ARIAS DE
ACEVEDO
RENSO DAVID ACEVEDO
MARIANELA ACEVEDO
JUILET HAYLEN ACEVEDO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms.
Acevedo is the mother of the three other applicants in the present judicial
review application. Ms. Acevedo and her children were joined claimants in a
claim for refugee protection made by her husband in 2001. In 2006, Ms. Acevedo
applied to the Refugee Protection Division of the Immigration and Refugee Board
(RPD) to have her claim for protection re-opened to allow her to assert
independent grounds from those raised by her husband. The RPD rejected her
request on December 18, 2006 and the present judicial review application
challenges that decision.
[2]
Ms.
Acevedo’s application to re-open was made pursuant to Rule 55 of the Refugee
Protection Division Rules, SOR/2002-228:
|
55. (1) A claimant or the
Minister may make an application to the Division to reopen a claim for
refugee protection that has been decided or abandoned.
(2)
The application must be made under rule 44.
(3)
A claimant who makes an application must include the claimant's contact
information in the application and provide a copy of the application to the
Minister.
(4)
The Division must allow the application if it is established that there was a
failure to observe a principle of natural justice.
|
55. (1) Le demandeur d'asile ou
le ministre peut demander à la Section de rouvrir toute demande d'asile qui a
fait l'objet d'une décision ou d'un désistement.
(2)
La demande est faite selon la règle 44.
(3)
Si la demande est faite par le demandeur d'asile, celui-ci y indique ses
coordonnées et en transmet une copie au ministre.
(4)
La Section accueille la demande sur preuve du manquement à un principe de
justice naturelle.
|
[Emphasis added]
Therefore, in response to Ms. Acevedo’s
application
to re-open, the RPD was required to establish whether there was a breach of
natural justice at the original hearing.
[3]
In
support of her application to the RPD, Ms. Acevedo provided extensive
evidence that her natural justice rights had been denied. In addition to supporting
documentation, she provided a sworn statement detailing the abuse that she
suffered at the hands of her husband and how it had prevented her from
participating in the claim her husband advanced. Critical elements of the
statement are as follows:
The abuse did not stop once we
came to Canada. In fact, I believe that the lack of status made Victor more
angry. He was uncertain about his future, and would blame me for his problems.
He beat me two three times a week. Weekends were worse, as he would be home and
would beat me on the smallest pretext.
[…]
He was also very verbally
abusive. He would always call me names, and put me down. The children have
witnessed many of these incidents of physical, emotional and verbal abuse.
Following these episodes of abuse, he would always apologize, and claim to have
repented and changed his ways, but he never changed and continued to abuse me.
Victor had made a refugee claim
based on problems at work. He told me that he had faced severe persecution. I
do not know the details of his case, as he would not tell me much about his
life. He just told me that he had to leave for Canada with three other
co-workers from his company and that his life was in danger.
I attended his refugee hearing,
but I was not asked any questions. I do not remember accurately, but I believe
his hearing took place sometime in 2003 / 2004. His abuse intensified after his
claim was rejected. He did not inform me whether he appealed the decision or
not.
[…]
At the time when my husband made
a claim I was not aware that I could make my own claim based on the violence I
had faced. Once I was in the shelter, the shelter staff referred me to Barbra
Schlifer Commemorative Clinic. I was able to meet one of the immigration
lawyers, who referred me to my Counsel, Ms. Sapru. I met Ms. Sapru in late
July. She was the first person who informed me that I could make seek to
re-open my refugee claim based on the violence we had experienced and because
we didn’t have a just or fair hearing of our claim.
Immediately she referred me to a
counselor for therapy. My counselor is on vacation at present, but I will be
submitted a letter from her as soon as she returns. Life is changing for me for
the first time. I am starting to feel like I am important. That what I feel is
important. That my life is important. I am starting to gain strength. I have
never ever seen my children this relaxed and comfortable. I cannot imagine
going back to that life of hell, or subjecting my children to that ever again.
I have asked Ms. Sapru to
represent us in re-opening our refugee claim so that our story could be told.
Because of the abuse, I was unable to make an informed, free and independent
decision with regard to my original refugee claim.
I remember the physical torture
so clearly. He would use his fists to punch me on my head, he would kick me and
push me. The assault was endless.
He doesn’t believe that I am a
human being. He kept saying things like “who do you think you are” and “you
better show me respect, I am the man.” On a daily basis he would degrade me,
calling me: son of a bitch, motherfucker, etc.
In this relationship with Victor,
I was constantly scared of his rage. He stopped me from meeting with my
friends, family and, from going to places, and having any kind of independence
whatsoever. I could never make a decision without consulting with him first.
I had no privacy; he would
control everything that I did. He was also financially abusive.
I remained in this violent
relationship for fifteen, [sic] it is hard to fully explain the complete fear
and shame that kept me in it. He told me that I was nothing without him and I
think he had convinced me of that. I cannot go back to that life, in fact even
if I did, I don’t think I would survive.
(Tribunal Record,
pp.96-100)
[4]
Based
on Ms. Acevedo’s evidence, Counsel for Ms.
Acevedo argued in written
submissions that the original refugee hearing constituted a denial of natural
justice:
As
a general concept, natural justice involves the “right to be heard”. The Courts
have previously held that the right to be heard is violated where a person is
mentally or emotionally constrained from bringing forward the full facts of
their cases because of duress. (Kaur v. Canada (Minister of Citizenship and
Immigration ), (1989) 64 D.L.R. (4th) 317 (Fed C.A.)
For
example, in the case of Kaur, the Court held that an abused women had
been “unable to make a free, informed and independent decision respecting a
claim to refugee status”. This was held to be a denial of fundamental/natural
justice.
(Applicant’s
Application Record, p. 79)
[5]
In the decision
rendered, the RPD acknowledged that if Ms. Acevedo was under duress at the time of the
original protection hearing, this could result in a denial of natural justice;
however, the RPD rejected re-opening
application on the following basis:
There is no evidence that her [the
applicant’s] movements were constrained by her spouse or that she was prevented
from seeking independent advice regarding her situation.
There is no evidence before the
Board as to her psychological condition at the time. In the panel’s opinion, it
has not been shown that the situation faced by the applicant at the time of the
hearing of her refugee claim rose to a level of duress, such as to have
deprived her of the right to be represented by independent counsel, as well as
the ability to make a free, informed and independent decision respecting her
claim to refugees status.
[Emphasis added]
(Decision, at p.
3)
[6]
In the decision,
the RPD states that it is “cognisant of the Chairperson’s Gender Guidelines
and the factors that may impact on the behaviour of an abused woman” but, despite
this says:
The panel does not find that Chairperson’s
guidelines provide a basis on which to re-open the refugee claim.
(Decision, at p.3)
[7]
I find
that the RPD’s decision is made in manifest error because the finding that
there is “no evidence” on essentially important elements of the application to
re-open is erroneous, and further, that the decision exposes a complete lack of
appreciation of the content and spirit of the Gender Guidelines. The Gender
Guidelines require that a decision-maker be sensitive to gendered claims
and not judge the actions of an abused women without enhanced knowledge of what
to expect. In failing to be sensitive to gender issues as required by the Gender
Guidelines, the RPD failed to appreciate that the power imbalance present
in Ms. Acevedo’s abusive relationship with her
husband certainly could have resulted in her being under duress.
[8]
As a result,
I find that the Decision is made in reviewable error.
ORDER
Accordingly, I set aside the decision under
review and refer the matter back to a differently constituted panel for
re-determination in accordance on the direction that the approach required by
the Gender Guidelines be applied.
“Douglas
R. Campbell”
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