Docket: IMM-6893-14
Citation:
2015 FC 824
Ottawa, Ontario, July 6, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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RODOLFO VALDEZ
SAURE
MILAGROS CAMANT
SAURE
(A.K.A.
MILAGROS CAMANTIGUE SAURE)
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants, a married couple, are citizens
of the Philippines. In 2006, they borrowed 1.7 million pesos from Conchita and
Benjamin Velenzuela. The debt had an interest rate of 5% per month, compounded.
After the first year, they could no longer make payments.
[2]
In 2007, the lenders demanded payment or the
claimant’s home as payment for interest due. The applicants abandoned their home
and fled to Canada in 2008.
[3]
After their six month visitor’s visa expired,
they were not granted an extension. The applicants remained in Canada for
another three and a half years before filing an application for permanent
residence on humanitarian and compassionate grounds. When that application was
refused, the applicants then made a claim for refugee protection. They stated
that they feared that their lenders would use their connections to have them
criminally convicted of “estaffa” (which seems
to be akin to criminal fraud) and they would be imprisoned in inhumane
conditions where they would be at risk of assault, disease, and possible death.
[4]
The applicants claim was assessed and rejected
by the Refugee Protection Division [RPD] under section 97 of the Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA]. Section 96 of IRPA
was not considered because they acknowledged there was no nexus to a Convention
ground.
[5]
During the hearing, the RPD asked the applicants
why they did not just declare bankruptcy. The applicants stated that there are
no bankruptcy laws in the Philippines. They offered no documentation to
substantiate that claim. Their counsel in closing submission stated that he
believed they were correct in saying that there is no bankruptcy law in the
Philippines. At the conclusion of the hearing, the RPD reserved its decision
stating that “there are a few things that have come up
during the hearing and that counsel has spoken on that I want to check.” The
RPD conducted internet research and did find that there were bankruptcy and
insolvency laws in the Philippines and those laws did not provide any penalty
for bankruptcy.
[6]
The RPD then went on to consider the worst scenario
- jail time - and whether it would amount to cruel and unusual treatment or
punishment. The RPD, whose analysis was admitted not to be a model of clarity,
concluded that it was reasonable to expect that the applicants should have
known that they would never be able to repay their loan with such usurious
rates. Further, it found that they unreasonably never applied for a bank loan
because the process was too long and they required the money fast. The RPD
found that even if this excuse was found to be reasonable, which it did not, it
was unreasonable to not start the bank loan process and when it was completed
pay off the initial loan from the lenders.
[7]
In the end, the RPD “having perused the Philippine bankruptcy or insolvency law,
[found] there would be no cruel or unusual treatment or punishment for these
claimants should they return to Philippines.”
[8]
The RPD concluded that there was no credible
basis to the claim made by the applicants pursuant to section 107(2) of the IRPA.
[9]
The applicants submit that the RPD, in relying
on the extrinsic evidence it found using the internet, and which it did not put
it to the applicants, breached procedural fairness.
[10]
In Mancia v Canada (Minister of Citizenship
and Immigration), [1998] 3 FC 461 (CA), the Court of Appeal held that
documents relied upon from public sources in relation to general country
conditions which were publicly available and accessible did not have to be put
to an applicant. The internet research of laws in the Philippines falls within
that description. Moreover, the issue of the laws of bankruptcy in the Philippines
was initially raised by the applicants themselves and later referenced by their
counsel. Further, the RPD itself alerted the applicants when the decision was
taken under reserve that it wished to check on some things (like the bankruptcy
laws) that had come up during the hearing. There was no breach of procedural
fairness.
[11]
The applicants, in an affidavit filed in this
application note that paragraph 18(g) of the legislation considered by the RPD
provides as an exception to the bankruptcy protection that “any criminal action against individual debtor or owner, partner,
director or officer of a debtor shall not be affected by any proceeding
commenced under this Act.” They submit that this means that the lender
can still use the estaffa process to have them jailed. The RPD concluded that
that jail time was not a possibility because he had pursued the bankruptcy laws
of the Philippines.
[12]
It is not clear from the record whether the RPD
or the applicants are correct in their respective interpretations of the law of
the Philippines as no evidence was lead on the issue and it appears to have
arisen in the course of the hearing. Moreover, it is unclear whether the
estaffa is a criminal action of the sort referenced in the legislation. In any
event, given this uncertainty, it is impossible for the court to adjudicate
whether the view of the RPD was or was not reasonable. For that reason, it is
unsafe to rely on the decision, and the matter must be remanded back to the RPD
for determination, with the applicants being given the opportunity to lead
evidence relating to what an estaffa is and whether the bankruptcy laws of the
Philippines would prevent it from occurring.
[13]
It may well be that the risk to these applicants
remains entirely speculative even if an estaffa is possible; however, that is a
matter for the RPD, and not this court.
[14]
Neither party proposed a question for
certification, nor is there one on these facts.
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