Docket: IMM-3060-11
Citation: 2011 FC 1388
Toronto, Ontario, November 29, 2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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GIORDANA MOSQUEDA COSTA
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Applicant
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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
Applicant is an adult female citizen of Mexico. She entered
Canada in April
2009 as a visitor and made a refugee claim in May 2009. That claim was
adjudicated by the Refugee Protection Division of the Immigration and Refugee
Board. On April 6, 2011, a Member of that Board provided a written decision
rejecting the Applicant’s claim for refugee status. This is a judicial review
of that decision. For the reasons that follow, I find that the application is
allowed and returned for re-determination by a different Member.
[2]
The
Applicant represented herself at the hearing before the Board. The assistance
of a Spanish/English translator was required for much of the testimony.
[3]
The
Applicant’s claim was based essentially on her fear of two different persons,
arising out of two different occasions. One had to do with the death of her
father when she was a young teenager. A newspaper report states that this death
was due to a botched attempt to hijack a truck the father was driving. The
Applicant asserts that the death arose as a result of a love triangle in which
the father had a mistress who had another lover, a high-ranking police officer,
who murdered the father. The Applicant fears this officer will seek her out and
cause harm to her if she were to return to Mexico.
[4]
The
other fear is that of an uncle who lives with the Applicant’s family in Mexico. That uncle
is apparently crippled and given to violent moods.
[5]
The
Board Member heard the Applicant’s evidence and largely found the Applicant not
to be credible. The Member also found that the Applicant had not rebutted the
presumption of state protection. Accordingly, the claim for refugee protection
was rejected.
[6]
The
Applicant now has Counsel representing her. Counsel raises three issues in
this application:
1.
Did
the Applicant receive a fair hearing, or did the Member interrupt and harass
her to the extent that she was unable to present her case properly?
2.
Did
the Member conduct a proper analysis of state protection or simply dismiss the
matter without proper reasons?
3.
Did
the Member improperly prevent the Applicant from submitting relevant evidence at
or after the hearing?
[7]
As
to the first issue, it is very difficult for a Court, reading only a
transcript, to get the real flavour of what went on at a hearing. While the
transcript here shows that the Member did frequently interject, it is difficult
to know if the Member was endeavouring to be helpful rather than, as is argued
by Applicant’s Counsel, interruptive and brusque.
[8]
As
to the second issue, the Member in the reasons at paragraph 8 provides a
mention of state protection that is confused with evidentiary findings as to
credibility. The reasons conclude in paragraph 11 by stating: “Furthermore
she failed to rebut the presumption of state protection with clear
convincing evidence.” There has been no proper analysis as to state
protection.
[9]
It
is principally on the third issue that this matter will be returned for
re-determination. The issue has to do with whether the Applicant should have
been given the opportunity at or after the hearing to file further evidence as
to denunciations she made to the Mexican authorities with respect to the
persons she alleged were troubling her. The Member wrote the following in the
reasons at paragraph 11:
[11] The Member asked the claimant
whether she had ever filed any denunciations naming either of the two men she
allegedly feared as the RPD had not been provided with anything naming problems
she had with Jose or Gamalier Guillen. The only denunciation regarding Jose was
filed by her mother as previously described. The only other denunciations14
provided to the RPD and filed by the claimant in either June 2007 or June 2008
(both dates appear on the document) and April 2009 were regarding rude
threatening calls received on her cell phone, and a man approaching her and
rudely threatening her. No names were provided to the police by the claimant.
She said there were a number of them. She was asked to explain if such documents
existed why she had not provided those instead of the ones referring to
anonymous phone calls15 and she said she thought what she provided
was sufficient to make her case. The panel does not agree. I find that the
claimant lacked credibility and she failed to provide sufficient credible and
trustworthy evidence that if returned to Mexico she faces a reasonable chance
of persecution for a Convention ground or that on a balance of probabilities
she would be personally subject to a risk to her life or to cruel and unusual
treatment and punishment. Furthermore she failed to rebut the presumption of
state protection with clear and convincing evidence.
[10]
Turning
to the transcript of the hearing, it is clear that the Applicant offered to
provide further evidence as to denunciations, but the Member said she could not
do so. This occurs at several places in the transcript, for instance at pages
19 and 25. I provide by way of example an excerpt from pages 26 and 27 of the
transcript, where the following exchange between the Member and the Applicant
is recorded:
MEMBER: Is there denunciation that you
filed against Mr. [X]?
CLAIMANT: No. Not exactly. I never
mentioned his name out of fear.
MEMBER: So, I guess he would know that
much wouldn’t he? He could easily have found out whether or not this individual
filed any denunciations against me. That is something a police officer could
find out, right?
CLAIMANT: Yes, of course.
MEMBER: And there is none.
CLAIMANT: No, there is no denunciation
that I would… I would have physically made with his name.
MEMBER: Well, those are my questions. I
want to make sure that I have handed back these originals. Anything else you
want to tell me? I’ve finished my questions.
CLAIMANT: Let me think about it please,
quickly. No I think I have already explained the why. I think I explained how
the situation is in Mexico. If you, ma’am chair feel it
necessary that I should obtain some more documents.
MEMBER: No.
CLAIMANT: That’s all I can tell you.
MEMBER: O.K. Well, thank you for coming.
Thank you to the interpreter for his assistance. I am not going to render my
decision from the bench, so you will be advised in writing. We have your
address and you will get the decision and the reasons for the decision. O.K.
Thank you.
CLAIMANT: O.K.
MEMBER: This hearing is concluded.
[11]
Section
37 of the Refugee Protection Division Rules, SOR/2002-228 clearly
provides that an Applicant can, by application, seek to provide a further
document in evidence after a hearing:
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.
[12]
The
dismissal by the Member of what amounted to the self-represented Applicant’s
attempt to do so, without advising the Applicant or considering Rule 37, is an
error in law and failure to provide due process. It is clear from the Member’s
reasons that the denunciations were material to the decision being made.
Refusal or neglect or oversight in not permitting the Applicant an opportunity
to provide such documentation is a reviewable error.
[13]
The
application is allowed, and the matter is sent back to the Board for
re-determination by a different Member. The matter is fact-specific; there is
no question for certification. There are no special reasons to award costs.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT’S JUDGMENT
is that:
1.
The
application is allowed;
2.
The
matter is returned to the Board for re-determination by a different Member;
3.
No
question is certified; and
4.
No
order is made as to costs.
“Roger T. Hughes”
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