Date: 19990302
Docket: IMM-1804-98
MONTRÉAL, QUEBEC, THE 2nd DAY OF MARCH 1999.
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
SIRE BERETE
Applicant
AND:
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
Judicial review of the decision made on April 3, 1998, by Corinne Côté-Lévesque and Raymond Boulet of the Refugee Division, in case M97-01671.
O R D E R
The application for judicial review is allowed. The matter is referred back to a differently constituted panel for reconsideration.
Danièle Tremblay-Lamer
Judge
Certified true translation
Monica F. Chamberlain
Date: 19990303
Docket: IMM-1804-98
Between:
SIRE BERETE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER, J.:
[1] This is an application for judicial review of a decision of the Refugee Division, in which it was determined that the applicant is not a Convention refugee.
[2] The applicant is a Moslem and a Guinean citizen. She bases her claim on the fear of her husband and his family following a forced marriage. She alleges that she was beaten daily, sometimes with a belt and other times with a whip, and that she was kept confined by her husband. At the hearing, the applicant submitted a birth certificate as proof of identity because she did not have a passport. The panel did not accept the evidential weight of the birth certificate because it had been tampered with and "obviously filled out on a printed copy." She then indicated that her husband would give her citizenship card to Guinean friends who would send it to her.
[3] The panel did not think that the applicant was credible mainly because her portrayal of her husband did not correspond with the claim that he would provide her friends with the documents she needs to stay in Canada, and because the account of how she left does not correspond with the life of confinement she described.
[4] The applicant maintains that the panel ignored the medical report prepared by a Canadian doctor that corroborated her allegations of abuse. In fact, the panel does not comment on this matter. However, the medical report is important evidence that can affect the panel's evaluation of an applicant's claim and the credibility of his or her allegations.
[5] In Mahanandan,1 the Federal Court of Appeal indicated that when documentary evidence is presented that could influence the way in which the panel handles the claim, the panel must indicate its impact on the applicant's claim.
| We agree. Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand. |
[6] In Soma,2 Mr. Justice Cullen specified that the panel must comment on documentary evidence when it directly contradicts the decision made.
| Although it would be preferable for the Board to address adverse documentary evidence, it is under no obligation to do so unless the evidence is directly contradictory ©to the Board's conclusionª.3 |
[7] In the case at bar, the evidence in question is a letter from a doctor that, among other things, indicates the presence of two scars: one on the applicant's right knee and the other on the left thigh "that the patient attributes to being beaten with a belt". In conclusion, he states that "the two scars are consistent with her description of the violence she suffered".
[8] Of course, as the respondent's counsel points out, evaluation of the evidence is a matter within the panel's jurisdiction. However, the panel must first consider the record evidence and comment on it when it may have a serious impact on an applicant's claim. If the panel decides to disregard the evidence, it must clearly state the reasons why it placed no weight on it 3.
[9] For these reasons, the application for judicial review is allowed. The matter is referred back to a differently constituted panel for reconsideration.
[10] Counsel did not submit any question to be certified.
Danièle Tremblay-Lamer
JUDGE
MONTRÉAL, QUEBEC
March 3, 1999.
Certified true translation
Monica F. Chamberlain
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990303
Docket: IMM-1804-98
Between:
SIRE BERETE
Applicant
AND:
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
|
| STYLE OF CAUSE: SIRE BERETE |
|
| AND IMMIGRATION OF CANADA |
|
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
|
| DATE OF HEARING: March 2, 1999 |
|
| REASONS FOR ORDER BY: TREMBLAY-LAMER J. |
|
| Jean-François Fiset for the applicant |
|
| Sherry Rafai-Far for the respondent |
|
| Montréal, Quebec for the applicant |
|
| Deputy Attorney General of Canada |
|
| Ottawa, Ontario for the respondent |
|
__________________
1 Mahanandan v. M.E.I. (August 24, 1994), A-608-91 (F.C.A.).
2 Soma v. Canada (Minister of Citizenship and Immigration) (1995), 94 F.T.R. 203.
Ibid. at 207.
3 Agbodoh-Falschau Kouassi v. M.C.I. (August 24, 1998), IMM-3871-97 (F.C.T.D.)
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