Date: 20060125
Docket: IMM-2880-05
Citation: 2006 FC 38
BETWEEN:
HANANE EL BALAZI
Applicant
– and –
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
PINARD J.
[1] This is an application for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the IRB), dated April 15, 2005, ruling that the applicant is not a
“Convention refugee” or a “person in need of protection” within the meaning of
sections 96 and 97, respectively, of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
[2] Hanane El Balazi (the applicant) is a citizen of
Morocco who claims she has a fear of persecution in her country because of her
membership in a particular social group, women who are victims of family
violence.
[3] The IRB found that the applicant was not credible.
More specifically, the IRB:
- did
not believe the applicant’s explanation for her delay in claiming asylum in
Canada and found that it was implausible that the applicant, who feared being
killed by the father of her former fiancé and who has lived in Canada since
2001, would await the expiration of her visa before requesting protection in
Canada; and
- also
concluded that it was implausible that the applicant’s mother was unable to
give her news about her father or the father of her former fiancé.
[4] It appears on the face of the decision in question,
therefore, that the IRB gave only two reasons in support of its finding of
non-credibility.
[5] The applicant argues that the IRB erred in respect
of the first of these reasons, that is, the delay between August 2003, when she
returned to Canada after visiting her family in Morocco, and July 2004, when
she claimed asylum.
[6] The respondent correctly
says that the IRB may take into account a claimant’s conduct when assessing his
or her statements and actions, and that in certain circumstances a claimant’s
conduct may be sufficient, in itself, to dismiss a refugee claim (Huerta v.
Minister of Employment and Immigration (March 17, 1993), A-448-91, Ilie
v. Minister of Citizenship and Immigration (November 22, 1994), IMM‑462-94
and Riadinskaia v. Minister of Citizenship and Immigration (January 12,
2001), IMM-4881-99).
[7] However, the case law also indicates that possession
of a visa (the IRB seems to have accepted the applicant’s testimony that she
believed her student visa would expire on July 31, 2004 and not
December 31, 2003) is a factor that has led the Court, in the past, to
determine that such a delay was reasonable.
[8] For example, the Federal Court of Appeal, in Hue
v. Minister of Employment and Immigration (March 8, 1988), A-196-87, held:
The Board rejected the Applicant's claim,
according to its reasons, on the sole ground that he had not made it in 1981
when he went to Greece and boarded his ship. This, for the Board, would show
that the Appellant's fear was not real and that his contention to that effect,
his having waited so long before making it, was not credible.
While we do not dispute that the delay in
making a claim for refugee status may be an important factor to take into
consideration in trying to assess the seriousness of an applicant's
contentions, we disagree completely with the Board's reasoning in the present
case. It seems to us obvious that the Applicant's fear is in relation to his
having to return to the Seychelles and as long as he had his sailor's papers
and a ship to sail on, he did not have to seek protection.
[9] In Houssainatou Diallo v. Minister of Citizenship
and Immigration, 2002 FCT 2004, I stated as well:
[9] . . . Finally, the explanations given by the
plaintiff about the delay in making the claim were solidly based on evidence
and seem quite reasonable to me: she was entitled to be in Canada on her
student visa and, as appears from her physician's letter, she was suffering
from severe depression. . . .
[10] In the case at bar, the IRB, in my opinion, erred in
ruling that the delay in claiming undermined the credibility of the applicant,
the holder of a student visa.
[11] The applicant argues that the IRB, in its second
reason, also erred in finding that it was implausible that her mother was
unable to give her news about her father or the father of her former fiancé.
[12] The respondent says it was reasonable for the IRB to
find that, if the applicant’s story was true, her mother, “who is very close to
her and knows the suffering the claimant would experience at her father’s
hands”, would be capable of giving her a little more information.
[13] In my opinion, this reason alone is far from
sufficient to support a finding of non‑credibility. It would be patently
unreasonable to find that the applicant is not credible solely because she
testified that her mother did not give her news of her long-divorced father or
of the father of her former fiancé, when she telephoned her. In my opinion,
that is a completely negligible and inconsequential issue in the context of the
applicant’s testimony as a whole.
[14] In addition, the respondent identified seven other
grounds to try to justify the IRB’s decision of non-credibility. The respondent
argues that, although these contradictions and improbabilities were not noted
by the IRB in its decision, they are clear from the evidence put before it and
this Court must consider them in determining whether the panel’s decision was
rationally supported by the evidence at its disposal.
[15] However, absent any reasons, an applicant has no
means of identifying what led the panel to the decision it made. The duty to
give written reasons for a decision is intended to allow the claimant to know
in timely fashion the specific reasons why his claim was denied, so that he can
assess his chances before making efforts and incurring expenses in a new
proceeding (Hilo v. Minister of Employment and Immigration (March 15,
1991), A-260-90 and Hussain v. Minister of Employment and Immigration (July
8, 1994), A-1212-91).
[16] The IRB gave two specific reasons why it found that
the applicant was not credible. The reasons given by the IRB are the only
indications by which its finding can be assessed. It is not for this Court to
look for additional ones in order to support the decision of this panel. This
Court need not assess the new contradictions and implausibilities cited by the
respondent if they were not raised at the IRB hearing and were not considered
in its reasons.
[17] Since I am of the opinion, therefore, that it was
patently unreasonable for the IRB to reach the conclusion that it did, solely
on the basis of the two reasons stated in its decision, one of them erroneous
and the other without consequence, the application for judicial review is
allowed, the decision in question is set aside and the matter is referred back
to the IRB for redetermination by a differently constituted panel.
Yvon Pinard
_________________________________
Judge
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