Ripalda v. Canada (Minister of Citizenship and Immigration), docket IMM-455-98

Date: 19980715

Docket: IMM-455-98

BETWEEN:

     ALMA RIPALDA

     HESSAMALI DAGHER

     Applicant (s)

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent (s)

     REASONS FOR ORDER

McDONALD, J.A.

[1]      The application for judicial review is allowed. The Board failed to take into account relevant documentary and testamentary evidence and made findings that are inconsistent with the evidence on the record. With respect to the issue of whether the applicant could obtain a divorce from her first husband the evidence is clear that the law in the Philippines does not allow for divorce. Both a solicitor in the Philippines as well as the U.S. Department of State Report for 1995 clearly state this is the case. The Board in its decision states "the female claimant could have resolved her difficulties in the Philippines through either a divorce or an annulment." Given the evidence it was not open to the Board to make this finding and it erred in so doing. Divorce is not an option for the applicant as the evidence clearly indicates that there is no divorce in the Philippines.

[2]      The Board also erred in its assessment of the availability of an annulment to the applicant in the Philippines. While the 1995 report states that annulment of marriages is now fairly easy to achieve due to changes in the Legal Code and the practice has become more common it also indicates that the costs of obtaining an annulment are prohibitive for most women. Most importantly, what should have been taken into account by the Board was that these changes to the Legal Code did not occur until 1988 - the year the applicant fled. Thus, it is very plausible that at the time the applicant was not aware that an annulment was an option for her. These issues should be further canvassed at the hearing level. There is also the issue of whether an annulment can be obtained after another marriage has ben consummated.

[3]      With respect to the finding of the Board that the applicant could have obtained a divorce while abroad, this appears to ignore the fact that divorce is not legal in the Philippines whether obtained at home or abroad. Further, this finding ignores the fact that during her years abroad the applicant and her family were fleeing civil war or persecution, and their lives were not settled for any substantial period of time.

[4]      The Board also appears to have failed to take into account that bigamy is an offence under Philippine law and that the evidence indicates that her husband can at any time press this charge against her. Article 349 of the Philippines Criminal Code sets out that "the penalty of prison major shall be imposed upon any person who shall contract a second or subsequent marriage before for former marriage has been legally dissolved." The applicant therefore fears being placed in prison is she returns to the Philippines. While she was there once before, the applicant's evidence is that she believed her first husband was waiting for the birth of her second husband's child so he would have full proof of her bigamous act.

[5]      Finally, I am of the view that because there was no evidence of persecution led by the applicant's solicitor with respect to the applicant's son, the Board could not have considered his claim independently. However, it could have considered the principles of family units as set out in the Handbook for Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.

[6]      The application for judicial review is allowed and the matter of determining the applicant's Convention refugee status referred back to a differently constituted panel in accordance with these reasons.

                             "F.J. McDonald"

                                 J.A.

Toronto, Ontario

July 15, 1998

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          IMM-455-98

STYLE OF CAUSE:                      ALMA RIPALDA ET AL.

                             - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                            

DATE OF HEARING:                  JULY 15, 1998

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER BY:              McDONALD, J.A.

DATED:                          JULY 15, 1998

APPEARANCES:                     

                             Ms. Linda Martschenko

                                 For the Applicants

                             Mr. Michael Morris

                                 For the Respondent

SOLICITORS OF RECORD:             

                             Martschenko Law Firm

                             359 Goyeau Street

                             Windsor, Ontario

                             N9A 1G9

                                 For the Applicants

                              George Thomson

                             Deputy Attorney General

                             of Canada

                                 For the Respondent

---

                            

                             FEDERAL COURT OF CANADA

                                 Date: 19980715

                        

         Docket: IMM-455-98

                             Between:

ALMA RIPALDA

                             HESSAMALI DAGHER

     Applicants

                             - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                        

     Respondent

                    

                            

            

                                                                                     REASONS FOR ORDER