Date:
20050415
Docket:
IMM-7887-04
Citation:
2005 FC 502
BETWEEN:
SOLANGE
ARLETE DA SILVA TANDELA
Applicant
-
and -
THE
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
AND BETWEEN: Docket:
IMM-7886-04
ALEXANDRINA
SILVA
SILVIO
BARNEER ALVARENGA
Applicant
-
and -
THE
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
AND BETWEEN: Docket:
IMM-7885-04
SOLANGE
ARLETE DA SILVA TANDELA
Applicant
-
and -
THE
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
AND BETWEEN: Docket:
IMM-7883-04
ALEXANDRINA
SILVA
SILVIO
BARNEER ALVARENGA
Applicant
-
and -
THE
MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR ORDER
HARRINGTON J.
[1]
In order to better understand the four judicial review applications
before the Court, it is necessary to begin with the story of a man who is no
longer with us. The father of Ms. da Silva Tandela passed information for the
MPLA (Popular Movement for the Liberation of Angola) to the National Union for
the Total Independence of Angola (UNITA), a party opposing the Angolan
government, and was murdered for political reasons in 1999. Ms. da Silva
Tandela, her sister, Ms. da Silva Dias, and the sister’s son, as well as her
brother, Nelson da Silva Tandela, all came to Canada after witnessing his
murder.
[2]
They all claimed refugee status on arriving in Canada. The claims were
heard together and were dismissed owing to a lack of credibility on the part of
the applicants.
[3]
The four decisions before the Court at this stage are those rendered by
an officer who denied permanent residence, as well as the exemption based on
humanitarian considerations (HC) and the pre-removal risk assessment (PRRA), to
Ms. da Silva Tandela and Ms. da Silva Dias and her son. The four decisions were
rendered by the same officer. The HC application of the brother, Nelson, was
granted by a different officer.
ANALYSIS
[4] The PRRAs of Ms. da
Silva Tandela and Ms. da Silva Dias and her son are practically identical. For
analysis purposes, I will refer to the file of Ms. da Silva Tandela.
[5]
The PRRA officer concluded that an arrest warrant issued in the names of
Ms. da Silva Tandela, Ms. da Silva Dias and Nelson da Silva Tandela had no
evidentiary weight. According to the officer, an arrest warrant issued on
November 6, 2002, after the April 2002 amnesty, was not seriously plausible.
The amnesty had been mandated by the government in power in favour of UNITA
members.
[6]
The officer did not explain whether he believed that the warrant was a
forged document or an official document which the authorities would not have
enforced.
[7]
An officer who gives reasons must ensure that the reasons given are
compelling (R v. Sheppard, [2002] 1 S.C.R. 869). It is not the Court’s
responsibility to speculate about what the officer really wanted to say.
[8]
Another reason given by the officer for his dismissal of the PRRA
application was the fact that several translations of articles dealing with
intolerance toward and intimidation of UNITA, published in 2003 and 2004 and
submitted by the applicants, had no evidentiary weight. He continued his
analysis by indicating that neither the translator’s name nor the source of the
original document were included.
[9]
The Web page URL was clearly indicated on the original Portuguese
document. If the officer had doubts as to the documents’ veracity, he could
have checked.
[10]
At the hearing, the applicants argued the existence of institutional
bias resulting from the fact that the same officer reviewed their PRRA and HC
applications. The Court does not see any merit in this argument.
[11]
However, the decisions in both PRRA applications should be rescinded for
the reasons cited.
[12]
HC applications are specific to each individual. The unique
circumstances of the individuals are considered before the decision is
rendered.
[13]
Since it appears that the officer cut and pasted the conclusions for Ms.
da Silva Tandela and Ms. da Silva Dias and her son, attributing a child to Ms.
da Silva Tandela and claiming that neither one had worked in Canada, it is
difficult for the Court to know which conclusions apply to which individual.
[14]
The decisions in the two HC applications should be dismissed for the
reasons cited.
[15]
Considering that the four decisions are practically identical, and it is
impossible to isolate or mitigate the errors which appear in the four files,
the only fair decision is to allow the four judicial review applications.
“Sean
Harrington”
Judge
Ottawa, Ontario
April 15, 2005
Certified true translation
Magda Hentel
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKETS: IMM-7887-04,
IMM-7886-04, IMM-7885-04,
IMM-7883-04
STYLE OF CAUSE: SOLANGE
ARLETE DA SILVA TANDELA,
ALEXANDRINA SILVA,
SILVIO BARNEER ALVARENGA
v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: MONTRÉAL,
QUEBEC
DATE OF HEARING: APRIL 5,
2005
REASONS FOR ORDER BY: THE
HONOURABLE MR. JUSTICE HARRINGTON
DATED: APRIL 15, 2005
APPEARANCES:
Jean-François Fiset FOR
THE APPLICANT
François Joyal FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Jean-François Fiset
Montréal, Quebec FOR
THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR
THE RESPONDENT
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