Moreira v. Canada (Minister of Citizenship and Immigration), 2003 FCT 608

Date: 20030515

Docket: IMM-5405-01

Neutral citation: 2003 FCT 608

Ottawa, Ontario, this 15th day of May, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE                       

BETWEEN:

                                       LUCRECIA MIRANDA MARTINS MOREIRA,

LUIANA JESSICA MIRANDA MOREIRA MANICO (a minor),

IRINA NAYOLE MIRANDA MOREIRA MANICO (a minor), and

PRISCILA WYSSOLELA MOREIRA da SILVA (a minor)

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated November 5, 2001, wherein the applicants were determined not to be Convention refugees.

[2]                 The applicants seek an order that the decision of the Board be set aside and that the matter be referred back to the Board for redetermination before a differently constituted panel of the Board.

Background

[3]                 The applicants are a mother (the "principal applicant") and her three minor daughters (the "minor applicants") from Angola. These four family members travelled to Canada with the principal applicant's former common-law spouse, Joao Domingos Francisco ("Francisco"), and three other family members, Sousa Domingos Francisco Da Silva, Euridice Martins Da Cruz and Olga Paula Da Cruz Ribero. All eight family members claimed Convention refugee status upon their arrival in Canada on June 11, 1999, claiming a well-founded fear of persecution based on membership in a particular social group (journalist and family members of a journalist) and on their real and perceived political opinion.

[4]                 At the request of counsel, the claims of the principal applicant and the minor applicants were joined to Francisco's claim on August 25, 1999. At that time, the principal applicant and Francisco were represented by the same counsel.

[5]                 The issue of joinder was discussed at a pre-hearing conference on June 29, 2000. The claims of Euridice Martins Da Cruz and Olga Paula Da Cruz Ribero were joined to the other six claims, based on the familial connection and the fact that all eight claimants had arrived in Canada on the same day. The claims were scheduled to be heard over two days, commencing October 30, 2000. At this time, the principal applicant, the minor applicants and Francisco were all represented by the same counsel.

[6]                 In September 2000, the principal applicant was assaulted by Francisco during a domestic dispute. Francisco was arrested and charged. On April 20, 2001, Francisco pled guilty to one count of assault, and received a conditional discharge with 18 months probation.

[7]                 On October 30, 2000, the Board was advised that the parties were retaining separate counsel. Counsel for the principal applicant, who had not yet been fully retained, stated that the principal applicant might be adding a further ground to her claim based on the domestic assault. Counsel advised the Board that she required an adjournment. The matter was adjourned to January 24, 2001 to set a date for the hearing. No request for severance was brought forward at that time. On January 24, 2001, the matter was adjourned to May 15, 2001 for hearing.

[8]                 On May 15, 2001, counsel for the principal applicant referred to severance, stating that she "may make a motion on this" because the principal applicant was uncomfortable going through the details of her testimony with Francisco present. The presiding member suggested that the principal applicant could provide her testimony in a hearing room, separated from Francisco and the other applicants, who would be able to hear her testimony via video or teleconferencing. Counsel for the principal applicant agreed to this suggestion.

[9]                 The principal applicant testified on May 17, 2001 in a separate room from Francisco and the other applicants who heard her testimony by teleconferencing. The minor applicants were not present. The principal applicant testified on both the sur place aspect of her claim and the family's difficulties in Angola. The principal applicant testified that, in addition to the domestic assault in September 2000, Francisco had assaulted her once while the family was living in Luanda. She separated from Francisco at that time, but by mutual consent they subsequently resumed living together. The principal applicant testified that she could have continued living separate and apart from Francisco while in Angola if she had chosen to. She also stated that Francisco had never raised his hand to any of the minor applicants. When asked by her counsel why she feared returning to Angola, the principal applicant testified she was afraid because of the state security.

[10]            On July 6, 2001, counsel for the applicants filed a written motion for severance of the claims of the principal applicant from the claim of the spouse. Affidavits from the applicants' counsel at the hearing and the principal applicant, as well as a psychologist's report were submitted to support the motion. The affidavit evidence suggested the principal applicant had been reluctant to speak of the abuse because Francisco was able to hear her testimony. The psychologist's report described various incidents of abuse, and stressed that the principal applicant feared retribution from Francisco.

[11]            Written submissions on behalf of the principal applicant and the minor applicants were provided to the Board on October 12, 2001. The issue of severance was not addressed in these submissions.

Reasons of the Convention Refugee Determination Division of the Immigration and Refugee Board

[12]            In its reasons, the Board addressed the issue of severance, referring to the affidavits and psychologist's report submitted in support of the motion. The motion for severance was denied.

[13]            The Board found that the applicants' stories were neither credible nor trustworthy, based on the numerous contradictions, omissions and implausibilities in those stories. Having considered the lack of credible evidence, as well as the numerous inconsistencies between the applicants' evidence and the documentary evidence, the Board concluded that there was less than a mere possibility that the applicants would suffer persecution should they return to Angola.

[14]            With respect to the sur place claim, the Board found it significant that the principal applicant consistently stated that she feared persecution from the state security if she returned to Angola. She did not clearly express a fear of her spouse, despite being given an opportunity to do so. The Board also found it significant that the principal applicant testified that she could have continued living separate and apart from her spouse in Angola if she had wanted to. The Board accepted that the principal applicant suffered domestic abuse at the hands of her spouse on two occasions, but found that her fear was not well-founded because Francisco testified that he was not interested in a reconciliation with her.

[15]            Issue

Did the Board deny the applicants their right to a fair hearing by having the principal applicant, Lucrecia Miranda Martins Moreira testify as to the basis of her sur place refugee claim in the presence of Joao Domingos Francisco by teleconference, a man that she identified as the agent of persecution?

Applicants' Submissions

[16]            The applicants submit that the Board's refusal to sever the applicants' claims from that of Francisco's was wrong. It is submitted that the Board, knowing that the principal applicant and the minor applicants had identified Francisco as an agent of persecution, was obligated to sever their claims from his.

[17]            According to the applicants, refugee claimants can never be asked to state the basis of their fears in the presence of the person they fear. The applicants submit that this principle is clearly acknowledged by the laws pertaining to Canada's Convention refugee determination process, which is completely dependant on assurances of confidentiality. The refugee hearing room is designed, by law, to be a place where claimants can speak out freely against their persecutors, without fear of reprisal or retribution from the persons they fear. A lack of confidentiality leads to intimidated claimants, who can rarely be forthcoming.

[18]            It is submitted that the Board forced the applicants to confront their alleged persecutor and explain, in his presence, the basis of their fear of him. In so doing, it is submitted that the Board ignored the fundamental principle of confidentiality. As a result, it is submitted that the Board breached the principles of fairness and natural justice applicable to hearings of this nature.

Respondent's Submissions

[19]            The respondent submits that the standard of review in the case at bar is twofold. Questions of law determined by the Board are governed by the standard of correctness, while factual findings are regulated by the patently unreasonable standard.

[20]            The respondent submits that the Board was justified in joining the claims because the claimants were members of the same family, the claims arose from their fear of persecution by reason of Francisco's position as a journalist and their shared political opinion, they travelled to Canada together and the necessity to cross-examine one party over the testimony of the other might arise. In addition, the claims were joined at the request of the applicants.

[21]            The respondent further submits that the applicants have failed to demonstrate that any injustice has been caused. The applicants only requested that their claims be severed from Francisco's claim after all of the evidence had been put before the Board, despite having the opportunity to make that request on numerous earlier occasions. In addition, the Board's credibility findings regarding the principal applicant's testimony on the family's problems in Angola were based on the inconsistencies and implausibilities in her evidence. Emotional distress and inability to concentrate would not explain away those inconsistencies and implausibilities. Furthermore, the Board found that the principal applicant appeared composed and relaxed and was able to provide specific details with confidence and conviction during her testimony regarding the sur place claim.

[22]            The respondent submits that the Board had regard to the special circumstances presented by the principal applicant and that her needs were accommodated in accordance with the Gender Guidelines, Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution, Special Problems at Determination Hearings, by making alternative arrangements for her testimony. The respondent submits it was reasonably open to the Board to give little weight to

the psychologist's report as the underlying facts upon which the doctor's conclusions were based were specifically rejected by the Board as not credible.

Relevant Statutory Provisions and Regulations

[23]            Rule 10 of the Convention Refugee Determination Division Rules, S.O.R./93-45, addresses severance and joinder:

Analysis and Decision

[24]            Issue

Did the Board deny the applicants their right to a fair hearing by having the principal applicant, Lucrecia Miranda Martins Moreira testify as to the basis of her sur place refugee claim in the presence of Joao Domingos Francisco by teleconference, a man that she identified as the agent of persecution?

The applicants submit the Board's failure to sever their refugee claims from the claim of Francisco, denied them the right to a fair hearing. The claims had originally been joined at the request of the applicants' counsel. After being adjourned, the matter was scheduled for hearing on May 15, 16 and 17, 2001. On May 15, 2001, at the beginning of the hearing, when referring to severance, the principal applicant's counsel stated she "may make a motion on this" (referring to severance) as the principal applicant was uncomfortable going through the details with her former spouse present. The taking of evidence was completed on May 17, 2001. The then counsel for the applicants agreed with the Board's suggestion that the principal applicant would testify in a separate room from Francisco and the other claimants. On July 6, 2001, the applicants filed a written motion for severance of the principal applicant's claim from the claim of the former spouse. When written submissions for the refugee claim were filed in October 2001, the issue of severance was not addressed. The Board dismissed the application for severance.

[25]            Rule 10.(3) of the Convention Refugee Determination Division Rules, supra provides that members may order claims to be heard separately " . . . where the members believe that hearing the claims or applications jointly is likely to cause an injustice to any party." The applicants agree that the question of joinder or severance is a matter that is within the discretion of the presiding members. However, the present case is an exception to this principle as Francisco is the agent of persecution vis-à-vis the principal applicant's sur place claim.

[26]            The sur place claim of the principal applicant is recognized as a type of Convention refugee claim if proven. The claim of a Convention refugee has traditionally been considered to be held on a confidential basis. What transpires at such a hearing is not made public, unless an application for judicial review of the Board's decision is made.

[27]            I do not believe that it is proper to have a Convention refugee claimant give his or her testimony in a manner that allows the persecutor to know the details of the claim. In many cases, this could have the result that a claimant would not tell the whole story for fear of retribution by the persecutor.

[28]            On the facts of the present case, such a situation could have been avoided by the severance of the claims.

[29]            I am of the opinion that it is important to the proper function of the Convention refugee process to provide a procedure whereby the refugee claimant can testify out of both the presence and the hearing of the alleged persecutor.

[30]            Accordingly, I am of the view that the Board made a reviewable error.

[31]            The application for judicial review is allowed.

[32]            Neither party wished to propose a serious question of general importance for my consideration for certification.

ORDER

[33]            IT IS ORDERED that the application for judicial review is allowed and the matter is remitted to a different panel of the Board for redetermination.

                                                                                                                                       "John A. O'Keefe"             

                                                                                                                                                          J.F.C.C.                      

Ottawa, Ontario

May 15, 2003

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-5405-01

STYLE OF CAUSE:                           LUCRECIA MIRANDA MARTINS MOREIRA,

LUIANA JESSICA MIRANDA MOREIRA MANICO (a minor), IRINA NAYOLE MIRANDA MOREIRA MANICO (a minor), and PRISCILA WYSSOLELA MOREIRA da SILVA (a minor)

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       Tuesday, November 26, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                                                Thursday, May 15, 2003

APPEARANCES:

Mr. Michael Korman

FOR APPLICANTS

Ms. Pamela Larmondin

FOR RESPONDENT

SOLICITORS OF RECORD:

Otis and Korman

290 Gerrard Street East

Toronto, Ontario

M5A 2G4

FOR APPLICANTS

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT