Date:
20121019
Docket:
IMM-1508-12
Citation:
2012 FC 1220
Ottawa, Ontario, October 19, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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VERONICA COX
CASTOR COX
KURTIS MAGNUS COX (MINOR)
INDRA VERONIC THOMAS (MINOR)
DARLIA VERNITA THOMAS (MINOR)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicants seek judicial review of the January 26, 2012, decision of the Refugee
Protection Division of the Immigration and Refugee Board (“the Board”) in which
the Board determined that the Applicants were neither Convention refugees nor
persons in need of protection in accordance with sections 96 and 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA).
[2]
For
the following reasons, this application is allowed.
I. Facts
[3]
The
Applicants are a family composed of the Principal Applicant (Veronica Cox), her
husband (Castor Cox), and three minor children (Indra Veronic Thomas, Darlia
Vernita Thomas and Kurtis Magnus Cox). The two eldest children are the
biological children of the Principal Applicant and her deceased common-law
partner. The youngest child is the biological child of the two adult Applicants.
They are all citizens of Saint Lucia.
[4]
The
Principal Applicant came to Canada with her three children on October 28, 2010,
and submitted their claim for refugee protection on November 15, 2010, on the
basis of her fear of their former neighbour, whom she suspects killed her
then-common-law spouse. Mr. Cox arrived in Canada on April 3, 2011, and
submitted his claim for refugee protection upon arrival. His claim is based on
the same grounds.
[5]
The
Principal Applicant recounts that Mr. Maximus Agdomar built a house very close
to that of her and her common-law spouse. They shared many things with Mr.
Agdomar, including their electricity lines, and carpooled to get all of their
children to school. The neighbours’ relationship deteriorated quickly, however,
in May 2005 when a number of small incidents occurred. The main source of the
dispute remains unclear.
[6]
According
to the Principal Applicant, Mr. Agdomar, who was a police officer in
Saint Lucia, began harassing and threatening her and her common-law spouse,
who drove taxis at night. He would call the Applicants’ house late at night,
while the common-law spouse was out working, and would lurk around their
property. He purportedly slung mud in their driveway, blocked it with cement
blocks, and regularly uttered death threats. Mr. Agdomar admitted to killing
at least one of the Applicants’ pets. As previously mentioned, this conduct
began in May 2005.
[7]
The
Principal Applicant reported Mr. Agdomar’s activities to the police on a number
of occasions, and served him with a letter threatening legal action. He
replied with a letter from his lawyer, threatening a civil action in return. The
Principal Applicant submitted an initial complaint to the Police Complaints
Commission, which conducts internal investigations of police misconduct, on May
17, 2005. The Commission’s reply indicated that their investigation of the
complaint had been completed and that they recommended that the matter be
dropped. A meeting with the Commission was set up on October 25, 2005,
following a letter contesting the findings of the Commission dated October 19,
2005. A hearing on the matter was held on November 29, 2005. All that is
clear from the record as to the outcome of this hearing is that the Principal
Applicant was unsatisfied as to its result.
[8]
On
June 15, 2006, the Principal Applicant’s common-law spouse was found on the
hood of his taxi, a gunshot wound to the head. He was declared dead at the
hospital later that day. Mr. Agdomar was purportedly arrested by police,
but was released 72 hours later. No charges were ever laid in the case, and it
appears that an investigation is still ongoing.
[9]
Shortly
thereafter, Mr. Agdomar’s house was burned down, and he moved into town with
his mother, approximately a 15-minute drive from the Applicants’ home. A store
house of various guns, ammunition, computers and motorcycles were allegedly
found in the house’s remains.
[10]
The
Principal Applicant describes that the threats and stalking continued, even
after she married Mr. Cox in 2010, until the time that she left for Canada.
[11]
The
Applicants’ hearing before the Board was held on December 2, 2011. Counsel for
the Applicants then provided written submissions following the hearing, along
with an application to admit additional evidence.
II. Decision
under Review
[12]
The
Board found that the Applicants do not have a well-founded fear of persecution
in Saint Lucia for Convention reasons or a risk to their lives, a risk of
cruel and unusual treatment or punishment, or a danger of torture. The Board
cited credibility concerns as the basis of its conclusion.
[13]
Specifically,
the Board found that it was “more likely than not that if an agent with the
profile, means, reach and attitude alleged by the claimants continues to have a
persecutory interest in any of the claimants after the 2005/2006 period, when
there is some objective basis to the claimants’ allegations that he and the
claimant’s family were involved in a dispute and if he knew most or all of the
claimant’s residential, occupational and educational whereabouts and
activities, then he or those acting on his behalf would have seriously
mistreated one or more of the claimants long before they left St. Lucia in late
October 2010.”
[14]
The
Applicants’ explanation that Mr. Agdomar may have wanted to torture them first
did not satisfy the Board sufficiently to overcome the “substantial
implausibilities presented by the foundational allegations in the claim.”
[15]
The
Board further pointed to the absence of corroborating evidence on multiple
issues, including that one of the minor Applicants had sought counselling in
connection with the Applicants’ claim for protection, and that the Principal
Applicant had made police reports. Additionally, the Board found that the fact
that Mr. Cox stayed behind in Saint Lucia to deal with the couple’s properties
and vehicles was inconsistent with a genuine subjective fear of the imminent
harm they alleged that they faced. Finally, the Board took issue with the
Applicants’ failure to leave their house, even temporarily, for safety reasons
in response to the death threats.
[16]
The
Applicants submitted an application for the admission of additional evidence
following the hearing. The Board determined that it was inadmissible because
it had not been adequately explained why the documents submitted post-hearing
were not able to be requested, obtained and put before the Board within the
timelines set out in the Refugee Protection Division Rules, SOR/2002-228
(“the Rules”) or even at the hearing. The Board further noted that “no
reliable explanation [could] be discerned or intuited for this [delay] on the
face of the post-hearing materials.”
III. Issues
[17]
This
application raises the following issues:
(a) Was
the Board’s exclusion of the post-hearing evidence a breach of procedural
fairness?
(b) Was
the Board’s credibility finding reasonable?
IV. Standard
of Review
[18]
The
issue of whether post-hearing evidence is allowed has been deemed to be a
question of procedural fairness (Nagulesan v Canada (Minister of Citizenship
and Immigration), 2004 FC 1382, [2004] FCJ No 1690 at para 17; Ahanin v
Canada (Minister of Citizenship and Immigration), 2012 FC 180, [2012] FCJ
No 188 at para 37). Questions of procedural fairness are scrutinized under the
standard of correctness (see Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 43).
[19]
Conversely,
as determinations of fact and mixed fact and law, credibility findings are
reviewable on the standard of reasonableness (see Baykus v Canada (Minister
of Citizenship and Immigration), 2010 FC 851, [2010] FCJ No 1058 at para
14; Mejia v Canada (Minister of Citizenship and Immigration), 2009 FC
354, [2009] FCJ No 438 at para 29).
[20]
As
the Supreme Court elaborated in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190 at para 47, reasonableness is concerned with the
justification, transparency and intelligibility of the decision-making process,
but also with whether the decision falls within a range of possible, acceptable
outcomes defensible in respect of the facts and law.
V. Analysis
A. Post-Hearing
Evidence and Procedural Fairness
[21]
The
Applicants argue that the Board erred in rejecting the “highly probative
documentary evidence that corroborates the subjective fear of the applicants”
when the documents were submitted twenty days prior to the Board’s rendering of
its decision. They cite Rule 30 of the Rules, positing that the Board failed
to consider the factors listed in that rule, and that it failed to provide any
reasons for its failure to consider them. Specifically, the Applicants submit
that the Board did not determine the relevance, probative value or new evidence
that the documents may have brought to the proceedings.
[22]
The
Respondent counters that it is Rule 37 of the Rules that governs this situation,
rather than Rule 30. Additionally, the Respondent argues that the Board had no
duty to consider expressly the application to admit the evidence in its reasons
because the application did not comply with all of the requirements of Rule 37.
Particularly, the Respondent underlines the want of explanation in the
application as to why the evidence could not have been submitted in time for
the hearing.
[23]
I
note that, while the factors to be considered by the Board under both Rules 30
and 37 are similar, the Respondent is correct in identifying Rule 37 as that
governing the situation before us:
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Additional
documents after the hearing has ended
37. (1) A party who wants to
provide a document as evidence after a hearing must make an application to
the Division.
Written
application
(2) The party must attach a
copy of the document to the application. The application must be made under
rule 44, but the party is not required to give evidence in an affidavit or
statutory declaration.
Factors
(3) In deciding the application,
the Division must consider any relevant factors, including:
(a) the document’s
relevance and probative value;
(b) any new evidence it
brings to the proceedings; and
(c) whether the party,
with reasonable effort, could have provided the document as required by rule
29.
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Documents
supplémentaires après l’audience
37. (1) Pour transmettre, après
l’audience, un document à la Section pour qu’elle l’admette en preuve, la
partie en fait la demande à la Section.
Forme
de la demande
(2) La partie fait sa demande
selon la règle 44 et y joint une copie du document, mais elle n’a pas à y
joindre d’affidavit ou de déclaration solennelle.
Éléments
à considérer
(3) Pour statuer sur la
demande, la Section prend en considération tout élément pertinent. Elle
examine notamment :
a) la pertinence et la valeur
probante du document;
b) toute preuve nouvelle qu’il
apporte;
c) si la partie aurait pu, en
faisant des efforts raisonnables, le transmettre selon la règle 29.
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[24]
The
Board found that the application made by the Applicants was proper. As such, I
reject the Respondent’s contention that there was no obligation on the Board to
name the considerations expressly in its reasons. Indeed, in accordance with
the case law cited by the Respondent, the Board had a duty to consider the
newly submitted evidence expressly (Matingou-Testie v Canada (Minister of
Citizenship and Immigration), 2012 FC 389, [2012] FCJ No 401 at para 43).
[25]
As
this Court has held, the Board “could simply mention in its decision that, having
reviewed the letter, it decided not to consider the evidence because of factors
listed in Rule 37(3) or it could accept to consider the new evidence and deal
with it in its decision” (Nagulesan, above, at para 17; Howlader v
Canada (Minister of Citizenship and Immigration), 2005 FC 817, [2005] FCJ
No 1041 at para 4).
[26]
I
am not satisfied that the Board met its procedural fairness obligations in this
case. While the Board did not simply ignore the evidence submitted, like in Nagulesan
and Howlader, above, it weighed only one factor listed in Rule 37(3). I
agree with the Applicant that the documents’ relevance and probative value were
important facts that the Board should have considered in its treatment of the
application to admit the post-hearing evidence, particularly given that the
other basis for denying the Applicants’ claim is related to the plausibility of
their story.
[27]
The
Board acknowledged that the Applicants had been represented by counsel
experienced in matters of refugee law at all material times throughout the
procedure, had failed to give an explanation as to why the evidence was not
provided at an earlier time, and failed to explain why they had not appeared to
make reasonable efforts to obtain the documents until after the hearing – all considerations
that fall within Rule 37(3)(c). Nonetheless, the Board was required to
consider the relevance, probative value, and newness of the documents, i.e. the
factors enumerated in Rules 37(3)(a) and (b). While the list of factors
to be considered in Rule 37(3) is not exhaustive, the use of the word
“including” rather than the words “such as” before the list of factors
indicates the intent that each of the factors included in the sub-rule be
considered. A failure to do so gives rise to a breach of procedural fairness.
[28]
As
the application for judicial review is granted on the basis of procedural
fairness alone, I find it unnecessary to address the second issue.
VI. Conclusion
[29]
The
Board’s failure to consider two of the three factors identified in Rule 37(3)
constitutes a breach of procedural fairness.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is allowed and the matter is remitted back to a
newly constituted panel of the Board for re-consideration.
“
D. G. Near ”
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