Date: 20091201
Docket: IMM-2156-09
Citation: 2009 FC 1227
Ottawa, Ontario, December 1, 2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
MARIA DE LOURDES DIAZ ORDAZ
CASTILLO
CARLO ALBERTO ZAPATA DIAZ ORDAZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms. Maria de
Lourdes Diaz Ordaz Castillo and her son, Carlo, arrived in Canada from Mexico in
2008. They applied for refugee protection but their application was never heard
on the merits because Ms. Diaz Ordaz Castillo withdrew it in January 2009. She
later tried to reinstate it but a panel of the Immigration and Refugee Board
dismissed her request.
[2]
Ms. Diaz Ordaz
Castillo maintains that the Board erred in refusing her reinstatement request. She
submits that the Board failed to appreciate her personal circumstances,
particularly the mental strain she was under at the time she discontinued her
claim, which was partly a product of the abusive relationship she had fled in Mexico. She also argues that the Board failed to explain
adequately why she was not entitled to a reinstatement “in the interests of
justice”. She asks me to overturn the Board’s decision and order another panel
of the Board to reconsider her request.
[3]
Two questions
arise:
1.
Did the Board fail to take
adequate account of Ms. Diaz Ordaz Castillo’s mental state when she withdrew her refugee claim?
2.
Did the Board provide adequate
reasons on the “interests of justice”?
I agree that the
Board’s reasons were inadequate. Therefore, I must allow this application for
judicial review.
II.
Factual Background
[4]
Ms. Diaz Ordaz Castillo
says she fled to Canada order to escape her abusive ex-partner.
She filed a refugee claim, contacted a lawyer, acquired a Legal Aid
certificate, and set up an appointment with counsel to fill out her personal
information form (PIF). She arrived late for the appointment and could not
re-schedule another prior to the due date for her PIF. Nor could she obtain the
assistance of anyone else over the holiday period. As a result, she failed to
submit her PIF by the deadline.
[5]
Ms. Diaz Ordaz Castillo’s
ex-partner contacted her at that point and asked her to return to Mexico. Because she was feeling depressed and isolated, and
was having difficulty raising her son on her own, she agreed. She formally
withdrew her refugee claim at a hearing convened to determine whether she had
abandoned it.
[6]
However, Ms. Diaz Ordaz
Castillo then changed her mind. Her ex-partner continued to contact her and was
now becoming verbally abusive, accusing her of having slept with his best
friend. She decided that it was not safe for her to return to Mexico after all, so she submitted an application to
reinstate her claim. The Board dismissed it.
III. The
Board’s Decision
[7]
The Board must reinstate a refugee claim if “it is established that
there was a failure to observe a principle of natural justice or if it is
otherwise in the interests of justice to allow the application.” (Refugee
Protection Division Rules, SOR/2002-228, s. 53(3).)
[8]
The Board considered whether there
was a failure of natural justice by virtue of the difficulty Ms. Diaz Ordaz
Castillo encountered trying to obtain legal advice. It found that, even though
she had not actually consulted with him, she was represented by counsel at the
time she withdrew her claim and there was no suggestion that he was in any way incompetent
or negligent.
[9]
The Board also considered Ms. Diaz
Ordaz Castillo’s state of mind. It found that her circumstances might have
provided grounds for concluding that her claim had not been abandoned. However,
she had decided affirmatively and voluntarily to withdraw her claim. The Board
noted that the withdrawal form was translated to her by an interpreter and
that, by signing the form, she acknowledged that she was aware of the
consequences. The Board concluded that the process of accepting and considering
the application for reinstatement was fair.
[10]
In respect of the interests of
justice, the Board noted that it offered a hearing at which the issue of
abandonment could have been addressed but Ms. Diaz Ordaz Castillo chose to
withdraw her application instead. Therefore, to grant the reinstatement request
would be to duplicate the process that had already been provided to her and
which she had declined. A Board member, a staff person and an interpreter had
been assigned to hear and consider her submissions. Accordingly, allowing
reinstatement of the claim would prejudice Board’s efforts to deal with these matters
efficiently and in a timely manner and would not be in the interests of
justice.
IV. Analysis
1. Did the
Board fail to take adequate account of Ms. Diaz Ordaz Castillo’s mental
state when she withdrew her refugee claim?
[11]
Ms. Diaz Ordaz Castillo
submits that the Board failed to appreciate that her mental state at the point
in time when she withdrew her refugee claim was affected by the abusive
relationship she had fled. In effect, she was unable to make a free and
informed decision about her claim. Further, Ms. Diaz Ordaz Castillo submits
that the Board failed to consider the Gender Guidelines applicable to women
making refugee claims, as well as and an affidavit she had filed describing, in
general terms, why women sometimes choose to remain in abusive relationships.
[12]
In my view, the Board
did not ignore the evidence of Ms. Diaz Ordaz Castillo’s mental state. However,
the evidence before the Board member did not suggest that her mental state had prevented
her from making an informed decision to withdraw her claim. She spoke of
feeling “alone and isolated”, “defeated” and “without hope” and that these
feelings caused her to agree to return to Mexico. While these feelings were no doubt genuine and perhaps
natural in her circumstances, I cannot fault the Board for concluding that
there had been no breach of natural justice.
[13]
In the cases relied on
by Ms. Diaz Ordaz Castillo, the applicants had clearly been under duress. In
one, the “pressure on her was such that she was not free to speak about the
situation she was in and unable to retain counsel to assist her in her choices”
(Kaur v. Canada (Minister of Employment and Immigration), [1990]
2 F.C. 209 (C.A.), at para. 32). In the other, the applicant had presented
evidence that “the abuse she suffered at the hands of her husband . . . had
prevented her from participating in the claim” (Acevedo v. Canada (Minister of Citizenship and Immigration), 2008 FC 496, para. 3). By contrast, Ms.
Diaz Ordaz Castillo freely withdrew her claim. She had access to counsel at the
time but did not seek legal advice.
[14]
In my view, in the
circumstances, the Board did not err by failing to discuss the Gender
Guidelines or the affidavit on spousal abuse. The Board was clearly aware of
Ms. Diaz Ordaz Castillo’s situation. It was not obliged to cite all of the
evidence before it.
2.
Did the Board provide adequate
reasons on the “interests of justice”?
[15]
As described above, the
Board considered the effect that allowing reinstatement would have on its own
processes. It concluded that it would not be in the interests of justice to
permit persons in Ms. Diaz Ordaz Castillo’s position to reinstate their claims.
[16]
In my view, however,
the Board did not include in its reasons an explanation why the particular circumstances
faced by Ms. Diaz Ordaz did not weigh in the balance. I agree with Justice
Michael Phelan’s comments:
The term
“otherwise in the interests of justice” are broad words giving the Board a wide
discretion to reinstate but which requires the Board to weigh all the
circumstances of the case – not just from the vantage point of an applicant’s
interests. Reinstatement is an exception to the norm and must be interpreted
and applied in that context. (Ohanyan v. Canada (Minister of Citizenship and Immigration), 2006 FC 1078, at para. 13).
[17]
Similarly, the
interests of justice should not be considered only from the vantage point of
the Board. If this were so, few, if any, applications for reinstatement would
ever succeed on this ground.
V. Conclusion and Disposition
[18]
The Board did not err
in concluding that Ms. Diaz Ordaz Castillo had not been under duress when she
withdrew her refugee claim and, therefore, that there had been no breach of
natural justice. However, the Board’s reasons deal only with the “interests of
justice” that militate against reinstatement, not those that favour it. On that
ground, I must allow this application for judicial review and order another
panel of the Board to reconsider the application for reinstatement. Neither
party proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration;
2.
No
questions of general importance are stated.
“James
W. O’Reilly”
Annex “A”
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Refugee Protection Division Rules, SOR/2002-228
Application to reinstate a
withdrawn claim
53. (3) The Division must allow the
application if it is established that there was a failure to observe a
principle of natural justice or if it is otherwise in the interests of
justice to allow the application.
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Règles
de la Section de la protection des réfugiés, DORS/2002-228
Demande de rétablissement d’une
demande d’asile retirée
53 (3) La Section accueille la
demande soit sur preuve du manquement à un principe de justice naturelle,
soit s’il est par ailleurs dans l’intérêt de la justice de le faire
|
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