Date: 20080624
Docket: IMM-4-08
Citation:
2008 FC 792
Ottawa, Ontario, June 24, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
DEA LORENA TOLOSA CARRANCO
KAREN LORENA REYES TOLOSA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
The
respondent’s motion dated June 19, 2008, acknowledges the situation created by
the decision‑maker at first instance, and therefore the respondent
requests that the decision at first instance be set aside. The motion was
brought less than two working days before the hearing, which had been scheduled
for April 9, 2008, and, given that the applicants do not accept the
respondent’s offer contained in that motion, the Court must automatically intervene
between the parties. This is a situation where the decision‑maker at
first instance committed a flagrant breach of procedural fairness or natural
justice. A situation where the decision-maker at first instance acts contrary
to public order transcends the interests of the immediate parties. Public
order, which by the very fact of the respondent’s motion is acknowledged by the
respondent, demands that the Court intervene on behalf of the well-being and
integrity of the justice system itself. For all of these reasons, without
interfering with the merits of the substantive matter of the case as the
respondent requested, the Court will render a decision not on the merits of the
case, which is reserved for the specialized tribunal at first instance as the
trier of fact, but on behalf of the integrity of the justice system and public
order. Otherwise, its silence would condemn it as an accomplice to the breach
of natural justice and procedural fairness committed by the decision-maker at
first instance.
II. Introduction
[2]
“Would you
please, please, please, please, please, please, please stop talking”. Ernest
Hemingway’s seven “pleases” in Hills Like White Elephants may be
excessive, but the repetition makes it plain that it is time to stop talking
and to start listening. The decision-maker at first instance, as the trier of
fact, must listen in order to decide on what has been testified and
demonstrated. The hearing transcript points to the contrary.
[3]
The art of
active listening is the essence of a trial judge’s work. Every word, every
gesture, every silence is an encyclopaedia of references, a dictionary of terms
and a gallery of portraits tracing the living history of the person before him
or her.
III. Judicial procedure
[4]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of an oral decision of
the Immigration and Refugee Board (the Board) dated November 5, 2007,
rendered at the hearing. The Board ruled that the applicants were not
“refugee[s]” as defined in section 96 of the IRPA or “person[s] in need of
protection” as defined in section 97 of the IRPA, and consequently
rejected their refugee protection claim.
IV. Facts
[5]
This
Court’s judgment follows the decision in Jonathan Reyes Tolosa v.
the Minister of Citizenship and Immigration (docket IMM-3-08),
after the files were separated by the member at first instance.
[6]
The
principal applicant, Dea Lorena Tolosa Carranco, arrived in Canada on August 15, 2006,
accompanied by her son, Jonathan Reyes Tolosa, and her daughter, Karen Lorena
Reyes Tolosa. All are citizens of Mexico.
[7]
In support
of her refugee claim, the applicant alleged that she fears a teacher at her
son’s school, named José Martinez Mejia, who had allegedly threatened her and
her family with death and abduction. The applicant’s daughter based her claim
on that of her mother.
V. Issues
[8]
Although
the applicants are raising several issues, the only issues to determine in this
matter are the following:
(1) Did the Board err in separating the files of
the three applicants?
(2) Did the Board err in rendering a decision
that breached a principle of natural justice or procedural fairness?
VI. Analysis
[9]
As a
preliminary observation, the applicants submit that the Board raised no
questions of credibility or truthfulness of the facts alleged against their
claim.
(1) Did the Board err in separating the files of the three applicants?
[10]
The mother
and her two children filed their refugee protection claims jointly in accordance
with subrule 49(1) of the Refugee Protection Division Rules,
SOR/2002-228 (the Rules), which states that “the Division must join the
claim of a claimant to a claim made by the claimant's spouse or common-law
partner, child, parent, brother, sister, grandchild or grandparent”.
[11]
Notwithstanding
rule 49 of the Rules and counsel’s submissions that the three files are
connected (Tribunal Record at page 409), at the hearing, the member
decided to separate Jonathan Reyes Tolosa’s file from that of his mother and
sister and rendered two decisions: one for Dea Lorena Tolosa Carranco and her
daughter Karen Lorena Reyes Tolosa (Tribunal Record at pages 3–14) and another
for Jonathan Reyes Tolosa (Tribunal Record at pages 15–34).
[12]
In this
case, the subject matter of the three claims is the same because the agent of
persecution is pursuing mother, daughter and son for the same reasons. The
children based their claims on that of their mother in the sense that, in their
Personal Information Forms (PIFs), they refer to the narrative of their mother,
who had been appointed as representative for her son, a minor child, and her
daughter, who had been a minor when she arrived in Canada, but has since
reached the age of 18. This fact makes it clear that separating the files would
not be helpful in analyzing the issues raised by the three claimants (Tribunal
Record at page 435).
(2) Did the Board err in rendering a decision that breached a principle
of natural justice or procedural fairness?
[13]
The applicants have a right to a hearing during
which every word, every gesture and every silence is, in fact, heard. A
decision-maker at first instance, as the trier of fact, must listen in order to
decide on what has been testified and demonstrated. The hearing transcript
points to the contrary.
[14]
The
history of this case demonstrates that the claimants did not have an
opportunity to have their stories assessed in a way that is conducive to the
conduct of a hearing.
[15]
The
art of active listening is the essence of a trial judge’s work. When a
decision-maker fails to listen actively, he or she deprives the person who is
testifying of the right to tell his or her story and make the decision-maker
understand it.
VII. Conclusion
[16]
For all of these reasons, the Board’s decision
is set aside, and the matter is referred to a differently constituted panel for
rehearing and redetermination by a decision-maker at first instance other than
the one who rendered the decision that is set aside.
JUDGMENT
THE COURT,
Considering that the
respondent presented a motion for judgment;
Sets aside the decision of the Refugee
Protection Division, which found that the applicants are not “Convention
refugee[s]” or “person[s] in need of protection”;
Refers the matter back to the
Refugee Protection Division so that the applicants’ refugee protection claim
can be reheard and redetermined by a member other than the one whose decision
is set aside;
Without costs.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, Reviser
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