Date:
20090224
Docket:
IMM-3329-08
Citation: 2009 FC 192
Montréal, Quebec,
February 24, 2009
PRESENT:
The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
TRIXIA
MELINA TRUJILLO FERNANDEZ
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), the
applicant is seeking judicial review of a decision rendered on
July 8, 2008, by the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, rejecting her claim for refugee protection on
the basis that her narrative was not credible.
II. Facts
[2]
The
applicant, a citizen of Mexico, alleges that she fears persecution by her
former spouse, a commanding officer in a federal investigation agency (FIA).
[3]
The
applicant submits that, after refusing to transport cocaine for her former
spouse and being abused by him, she left him and filed a complaint with the
authorities before taking refuge at a friend's home and then at a cousin's
home, where each time her former spouse found a way to locate her.
[4]
In
March 2006, the applicant moved away and went back to live in Mexico City, but her former spouse allegedly tracked her down and tried to extort money
from her by threatening to kill her. After filing a second complaint
against him, the applicant decided to leave Mexico on
November 25, 2006, and come to Canada to claim refugee protection.
[5]
On
July 8, 2008, the RPD rejected the claim for refugee protection on
the ground that the applicant was not credible with regard to her subjective
fear and that she had therefore not discharged her burden of proving that she
had a well‑founded fear of persecution in Mexico.
III. Issues
[6]
These
proceedings raise the following issues:
a.
Is
the RPD's decision unreasonable?
b.
Did
the RPD breach the rules of procedural fairness?
IV. Analysis
Standard
of judicial review
[7]
Since
the RPD's decision mainly involves an assessment of the facts and the
applicant's credibility, the reasonableness standard applies in this
case, which means that the Court must show deference to the decision (Dunsmuir v.
New Brunswick, 2008 SCC 9).
[8]
If,
as the applicant submits, the RPD breached the rules of natural justice or
procedural fairness, the RPD's decision will not be entitled to any deference
by this Court, which will set it aside (Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461, at paragraph 44).
Procedural
fairness
(i) Preliminary
inquiry report
[9]
The
applicant alleges that the RPD deprived her of the right to a fair hearing by
basing its conclusion on a preliminary report by an immigration officer at the
Canadian mission of the Immigration and Refugee Board of Canada (CIC) in Mexico
City even though the report directed the RPD to obtain additional information
from the applicant.
[10]
Following
a hearing that was cut short so the RPD could conduct its own inquiry into the
complaints allegedly filed by the applicant against her former spouse, the
parties left each other after the presiding member stated the following:
[translation]
. . . When I receive the document (inquiry
report ordered from the CIC in Mexico City), I will send it to your counsel
and, if necessary, we will meet again, but otherwise he (i.e. counsel
for the applicant) will provide us with written submissions, and that will
end the hearing, and I will give you a decision thereafter. The file might be
reopened. When I receive the document, I will decide whether to reopen or
simply to end the hearing.
(Panel's record,
page 153)
[Emphasis added.]
[11]
The
RPD then took the initiative of asking the Canadian authorities in Mexico City to verify the "authenticity, provenance and content" of a
document filed in evidence by the applicant concerning a complaint she had laid
against her former spouse. The RPD finally received the following reply to its
verification request on May 1, 2008:
I've been trying to confirm the validity of the
document you sent. Up to this moment it does not seem to be genuine based on
the number of Acta Especial which is not consistent with the place where
the situation took place, and it should. However, they have advised me that to
verify validity I should first ask the person [the claimant] in what office
(fiscalia o delegacion) did she start the process. If she is able to
answer this, I will call the office to verify validity, however, there are
any incongruencies in the number of the document that indicate this might be
counterfeit…The number should read FAO instead of ITZ, according to the place
where the situation happened. Nevertheless, the people at the fiscalia could
have made a mistake and accepted to deal with a problem that was not within
their "territory".
[Emphasis
added.]
[12]
This
was a preliminary report that required the RPD to continue its hearing of the
claim, which it had adjourned to verify what the applicant had said. The report
required some additional information to be obtained from the applicant so the
Canadian authorities could complete the verification inquiry ordered by the
RPD. It was certainly not a conclusive report that allowed the RPD to reach the
conclusion it did, and certainly not before having the applicant answer the
questions suggested by the CIC in Mexico City.
[13]
It
will be recalled that the RPD decided to order the inquiry and adjourn the
hearing in the meantime, while reserving the right to continue the hearing
after receiving the results of the inquiry, in order to find out the truth
about the applicant's allegations. After receiving the preliminary report and
entering it in the file, the RPD notified counsel for the applicant of the
following on May 6, 2008:
[translation]
The
IRB panel hearing the above‑mentioned matter requests that you be
informed of the following:
After
the conclusion of the hearing into your client's claim for refugee protection,
the tribunal officer filed the following additional exhibit:
A-4
SIRU Reply of May 1, 2008
A
copy of the additional exhibit is attached to this letter.
Given
the nature of the information found in this additional exhibit, you are
entitled to make submissions at a hearing called for this purpose.
If
you wish to exercise this right, written notice to this effect must be filed with
the IRB Registry by May 16, 2008. If no written notice is received
on or before May 16, 2008, you will be presumed to have waived your
right to make submissions at a hearing called for this purpose and the
matter, including the additional exhibit, will be reserved for decision after
that date.
However,
if you wish to make submissions in writing, they must be filed with the IRB
Registry by May 16, 2008. If no written submissions are received on
or before May 16, 2008, the matter, including the additional exhibit,
will be reserved for decision after that date.
[Emphasis
added.]
[14]
Based
on what was stated by the presiding member when he adjourned the hearing on
December 20, 2007, and what was stated in the above‑mentioned
notice, the applicant and her counsel were entitled to expect to be called to a
continuation of the hearing that had been adjourned so the RPD could inquire
into certain allegations made by the applicant. Continuing the hearing was all
the more necessary given that the preliminary report submitted by the Canadian
authority in Mexico City suggested that the RPD ask the applicant certain
questions so it could continue and complete the inquiry ordered by the RPD.
[15]
The
hearing never resumed; the RPD never asked the applicant the questions
suggested by the CIC in Mexico City, the applicant was expecting to be
called to a continuation of the hearing to answer those questions, and the RPD
relied on a preliminary report that was not conclusive to impugn the
applicant's credibility.
[16]
Since
the RPD decided to conduct its own inquiry, it had to complete it and give the
applicant an opportunity to answer the questions raised at the preliminary
stage of the inquiry. Since the RPD suggested that it would set a date for the
continuation of the hearing it had decided to adjourn for a very specific
reason, it had to respect its own procedure before deciding the applicant's
claim for refugee protection.
[17]
How
can it not reasonably be concluded that procedural fairness was breached?
(ii) Psychological report
[18]
The
RPD found that the applicant was not credible and thus did not accept her
allegations of subjective fear.
[19]
To
corroborate her allegation that she was a woman crushed by a former spouse's
physical and psychological abuse, the applicant, at the start of the RPD
hearing and thus after the time limit, filed a report signed by a psychologist,
who concluded, following a technical test, that the applicant had significant
symptoms of post‑traumatic stress, anxiety and depression.
[20]
At
the start of the brief hearing on December 20, 2007, the presiding
member stated the following to the applicant about the report:
[translation]
So we had a short conference before the hearing
began to discuss the psychological report. Mr. Centurion explained to me
all the details of the report, which he has just received. He also explained to
you that you were filing that document after the time limit. Listen, I have
not read it. I will accept the document conditionally, and we will deal with it
during the hearing.
(Panel's record,
page 128) [Emphasis
added.]
[21]
In
saying this, the presiding member of the RPD was thus undertaking to read the
expert report or at least to decide whether he would accept it as evidence and,
if so, to determine the weight he would give it after reading it. There was all
the more reason for this given that, let us not forget, the RPD in its decision
cast doubt on the applicant's credibility with regard to her allegation that
she feared physical and psychological abuse by a former spouse who was also a
commanding officer in the FIA.
[22]
Yet
nowhere in the decision or during the hearing did the RPD or the presiding
member discuss the relevance of the psychological report received subject to
its late filing. The RPD completely ignored the report and acted and made its
decision thereafter as if the report did not exist.
[23]
Yes,
the RPD stated in its decision that it had "analyzed all of the
evidence", and yes, it must perhaps be presumed that it read the report.
However, if this is truly the case, why did the RPD, during the hearing or in
its decision, not come back to the fact that it had accepted the report
conditionally at the start of the hearing?
[24]
No
decision was made on this report accepted conditionally, no mention was made of
it even having been read, and no comment was made on its relevance and the
weight it was to be given. The report was an important piece of evidence for
the applicant, yet the RPD seems to have completely ignored it after accepting
it subject to a decision on its late filing, a decision that has still not been
made.
[25]
How
can it not reasonably be concluded once again that procedural fairness was
breached?
IV. Conclusion
[26]
Given
the combined effect of these breaches of procedural fairness, the applicant is
right to conclude that the decision is unreasonable and that she was not given
a fair hearing. The Court must therefore intervene and set aside the RPD's
decision.
[27]
Since
no serious question of general importance was proposed, no question will be
certified.
JUDGMENT
FOR THESE
REASONS, THE COURT:
ALLOWS the
application for judicial review, SETS ASIDE the decision dated July 8, 2008,
and REFERS the matter back to a differently constituted panel of the
Board for reconsideration.
"Maurice E.
Lagacé"
Certified true
translation
Susan Deichert, Reviser
Email this Content