Federal Court Decisions

Decision Information

Decision Content

Date: 20060216

Docket: IMM-1356-05

Citation: 2006 FC 212

Toronto, Ontario, February 16, 2006

PRESENT:      The Honourable Mr. Justice Campbell

BETWEEN:

TUOYO ARIRI (a minor) and

ABIGAIL ARIRI (Litigation Guardian)

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                The present Application is brought by a 16 year old citizen of Nigeria whose claim for protection on the ground of gender persecution is based on a detailed history of physical, emotional and sexual abuse at the hands of her uncle.   

[2]                In its decision, the Refugee Protection Division ("RPD") states a belief that the Applicant's claim is a fraud. A critical element of the oral reasons given immediately after the hearing is that "there was no evidence of the existence of this uncle" (Decision, p.3). In the reasons, the RPD describes how the uncle's existence could have been proved during the course of the hearing, including from a letter from a pastor who helped the Applicant in Nigeria. The RPD found that the fact that no letter from the pastor was produced "undermines the overall credibility of the claimant" (Decision, p.3).

[3]                I find two fundamental errors in the decision under review. First, clearly, the Applicant testified to the existence of the uncle. There are no clear reasons provided in the decision for why the Applicant's evidence with respect to the abuse she suffered was not accepted as credible. And, second, there was no notice given that corroborating evidence would be required.

[4]                A perusal of the transcript discloses that fairly early on in the hearing the RPD exposed suspicion about the existence of the uncle (Tribunal Record, p.180), and then proceeded to question the failure to submit the pastor's letter. Having notice of this issue, Counsel for the Applicant expressed in oral argument that, while the issue was not known prior to the commencement of the hearing, if the pastor's letter was considered important it could be produced, and a request was made for an adjournment to produce the letter (Tribunal Record, p.225). This request was not acknowledged by the RPD at that time, or in the reasons provided.

[5]                I find that the failure of the RPD to give the Applicant an opportunity to produce the corroborating evidence constitutes a breach of due process.

[6]                As a result, I find that the RPD's decision is patently unreasonable.

ORDER

            Accordingly, I set the RPD's decision aside and refer the matter back to a differently constituted panel for re-determination.

"Douglas R. Campbell"

JUDGE


FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-1356-05

STYLE OF CAUSE:                         TUOYO ARIRI (a minor) and

                                                            ABIGAIL ARIRI (Litigation Guardian)

Applicant

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND

                                                            IMMIGRATION

Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       FEBRUARY 16, 2006

REASONS FOR ORDER

AND ORDER BY:                             CAMPBELL J.

DATED:                                              FEBRUARY 16, 2006

APPEARANCES:                                                                  

Kingsley Jesuorobo                                                                   FOR THE APPLICANT

Kristina Dragaitis                                                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:                                              

Kingsley Jesuorobo

Barrister & Solicitor

Toronto, Ontario                                                                       FOR THE APPLICANT

                                                                                               

                                                                              John H Sims, Q.C

Deputy Attorney General of Canada                                          FOR THE RESPONDENT                                                                                            

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