Date: 20020301
Docket: IMM-3184-01
Ottawa, Ontario, the 1st day of March 2002
Present: The Honorable Mr. Justice Pinard
Between:
Alcibiades Marcelino WESTRES TORRES
Applicant
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision dated May 23, 2001, by the Refugee Division is set aside, and the matter is referred back to a newly constituted panel of the Refugee Division for a rehearing and redetermination.
YVON PINARD
JUDGE
Certified true translation
Sophie Debbané, LL.B.
Date: 20020301
Docket: IMM-3184-01
Neutral Citation: 2002 FCT 212
Between:
Alcibiades Marcelino WESTRES TORRES
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review of a decision dated May 23, 2001, by the Convention Refugee Determination Division determining that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2.
The applicant is a citizen of Peru. He alleged that he was persecuted in Peru by reason of his political opinion and membership in a particular social group.
The decision in this case is based entirely on the applicant's lack of credibility, strictly as a result of some four specific improbabilities or inconsistencies noted by the Refugee Division. The applicant said that he was taken by surprise and criticized the panel for failing to confront him with three of the inconsistencies noted.
In fact, this grievance appears to me to be well- founded with respect to at least two of those inconsistencies. First, it seems that the panel considered that by starting a business again in the same line of business, the applicant prejudiced his claim of a subjective fear. Nonetheless, the only question relating to that point is at page 281 of the panel's record and deals solely with the fact that the applicant had shut down his travel agency. Second, the panel determined that the applicant's opening of another business (fish), some three years later, was inconsistent with his subjective fear and undermined his credibility. After reviewing the hearing transcript of the Refugee Division, I note that the applicant was not examined on that issue at all.
In Guo v. Canada (M.C.I.), [1996] F.C.J. No. 1185 (T.D.) (QL), Mr. Justice Heald allowed an application for judicial review of a decision of the Immigration and Refugee Board based on inconsistencies. He states, at page 2:
The relevant jurisprudence establishes that inconsistencies in the claimant's evidence from which a board may find a refugee claimant not credible must be put to the claimant and the claimant afforded an opportunity to explain the alleged inconsistencies [See Note 2 below]. A review of this record indicates that this applicant was not confronted with the alleged inconsistencies in her evidence and given an opportunity to respond, as is required by the rules of natural justice. Specifically the applicant should have been given the opportunity to explain the alleged inconsistency with respect to her evidence relating to her Chinese work unit card and the PSB list of seized items. A failure to afford such an opportunity to the claimant constitutes an error in law.
Note 2: See Gracielome v. Canada (M.E.I.) (1989), 9 Imm. L.R. (2d) 237 (F.C.A.).
See also Vorobieva v. Canada (Solicitor General) (1994), 84 F.T.R. 93 (T.D.) per Rouleau J.
In applying those principles to this case, I am of the opinion therefore that the applicant should have been given an opportunity at the hearing to comment on or explain those factual situations deemed improbable by the panel.
For these reasons, the application for judicial review is allowed and the matter is referred back to a newly constituted panel of the Refugee Division for redetermination.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 1, 2002
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3184-01
STYLE OF CAUSE: ALCIBIADES MARCELINO WESTRES TORRES
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 6, 2002
REASONS FOR ORDER OF PINARD J.
DATED: MARCH 1, 2002
APPEARANCES:
MICHELLE LANGELIER FOR THE APPLICANT
SYLVIANE ROY FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHELLE LANGELIER FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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