Docket: IMM-1534-03
Ottawa, Ontario, April 15, 2004
Present: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
CLAUDIA ELENA MORA QUINTERO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
THE HONOURABLE MR. JUSTICE HARRINGTON
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel). In this decision, the panel held that the applicant was not a Convention refugee within the meaning of section 96 of the Act and was not a "person in need of protection" within the meaning of section 97 of this same Act.
FACTUAL BACKGROUND
[2] The applicant, a citizen of Colombia, met one Andres Puerta Zapata ("Zapata"). They fell in love and were engaged on July 18, 1999. They decided to live together as of January 10, 2001. However, after a month, the relationship soured. On February 10, 2001, following a dispute, Zapata hit the applicant, and repeated this act on several occasions in the course of their relationship, until she left their home.
[3] On April 10, 2001, a letter from the Revolutionary Armed Forces of Columbia (FARC) was slipped under the door of their apartment, addressed to the applicant, telling her that the group wanted money to assure her safety in the area where she was living. The applicant informed Zapata, but he simply said that she should pay them. The applicant explained that this event did not seem to affect Zapata and that he was indifferent to these threats. The applicant was surprised by his reaction. She received several letters of this kind and Zapata again told her that she should cooperate. After a particularly stormy fight, he struck her.
[4] On May 20, 2001, Zapata invited his friends to his home and the applicant overheard their conversation. They were talking about Commandant Gustavo, drinking alcohol and taking drugs. The applicant was not able to say that Zapata and his friends were part of the FARC group but, fearing for her life, she left their apartment and returned to live with her parents.
[5] The applicant resigned from her teaching position and, after communicating with her cousin in Canada, who had invited her, and receiving her visa, she went to the police to file a report against the FARC on July 11, 2001. On July 23, 2001, the applicant received a phone call from Zapata, who told her that he knew that she had resigned from her position and had filed a police report, and that she was now in danger. The applicant stated that she left her country on August 20, 2001, arriving in Canada the same day. She claimed asylum on August 29, 2001.
IMPUGNED DECISION
[6] The panel determined that the applicant was not a Convention refugee or a person in need of protection. The panel stated that it had no reason to doubt the applicant's identity. However, the panel doubted her credibility. According to the panel, it appears that the applicant left her country because of extortion but also for fear of conjugal violence. In fact, the panel asked questions regarding the very existence of Mr. Zapata. The applicant had no photos or documents to confirm his existence.
[7] Further, the panel asked why she had not mentioned, in her report to the police, the fact that Zapata had hit her on several occasions, or even the possibility that he was tied to the FARC group. According to the applicant, the police told her that since this fact was not certain, they could not write it in the report.
[8] The panel also found it improbable that the letter of invitation from her cousin from Canada was dated March 1, 2001, when all of these disturbing events only occurred as of April 10, 2001 - one month and nine days after the letter. The applicant was unable to explain this contradiction.
[9] Finally, the panel examined the three letters from the FARC and compared them to a logo which is found on their website. The panel was of the opinion that the colours of the logo on the letters and on the site were not the same, which raises the question of whether the applicant made up all of these events to support her claim.
ISSUE
[10] Did the panel make a reviewable error in finding that the applicant was not credible?
APPLICANT'S SUBMISSIONS
[11] The applicant claims that she never stated that Zapata was responsible for all of her problems. She therefore alleges that the panel, in requiring proof of Zapata's existence, exceeded its jurisdiction. The principal basis for her claim is related to the pressure by the FARC.
[12] The applicant claims that she should not have had to answer questions about the letter of invitation from her cousin; the panel had the responsibility, rather, to question her cousin. The letter is dated March 1, 2001, and the panel asked questions about the truthfulness of this letter. However, the applicant points out that rule 18 of the Refugee Protection Division Rules, SOR/2002-228, indicates that the panel should have notified the parties and given them the chance to make representations on the reliability and use of the "information or opinion". Additionally, the applicant emphasizes that the visa record should have been sent by the Minister and should, at the very least, have contained a notice to the effect that the file was complete. In this case, the documents were sent directly to the hearing officer. The applicant therefore stresses that there was a breach in procedure and in procedural fairness.
[13] The panel, she submits, had no business analysing the colours of the letters that were filed and unilaterally determining that they were different from those found on the FARC website. Their finding that the letters were fabricated, using the website, to support the claim, is patently unreasonable. According to the applicant, the panel appeared to have become a laboratory of documentary expertise.
RESPONDENT'S SUBMISSIONS
[14] The respondent maintains that on at least eight occasions in the applicant's answer to question 37 of her personal information form (PIF), she mentioned problems that she experienced during the period of her cohabitation (aggravated assault and sexual assault). It was following these events that the applicant left her home. It is clear that she wanted to distance herself from her former partner and that this event and the threats of the FARC were part of her claim for protection and were, at least in part, an essential aspect. The panel, therefore, did not err in requiring corroborative evidence, or in determining that the failure to mention conjugal violence in exhibit P-6 was an omission that seriously affected the applicant's credibility. Further, the respondent points out that the panel has exclusive jurisdiction to assess the probative value assigned to a document like exhibit P-6, and can disregard the content without necessarily determining that it is false.
[15] The respondent submits that the panel correctly interpreted the letter of invitation from the applicant's cousin. Based on its assessment of the answer to question 37 of her PIF, the panel could reasonably find that it is unlikely that the applicant contacted her cousin before the alleged events.
[16] With respect to the letter of invitation itself, the panel did not have to speak to the cousin to get the explanation requested. The respondent submits that to impose such an obligation would be going beyond what the rules of natural justice require of the panel in matters involving the assessment of credibility.
[17] The respondent submits that the panel did not contravene rule 18 or rule 25 because we cannot say, even after an in-depth analysis, that a letter of invitation filed into evidence by the refugee protection officer is "any information or opinion that is within [the] specialized knowledge" of the panel. It is paragraph 170(g) of the Act that states that the procedure must be free of the formality and inflexibility that we generally associate with the courts of law.
[18] Finally, in terms of alleged violations of the rules of natural justice, the lack of interpretation must be raised as soon as it is reasonably possible to do so. In this case, the respondent submits that the applicant did not allege, in her affidavit or in her memorandum, that it was impossible to raise the lack of interpretation. We must therefore presume that she was aware of it and that she chose to continue with the hearing nonetheless.
ANALYSIS
Standard of judicial review
[19] The standard of judicial review in matters involving questions of fact and credibility is the test of the patently unreasonable decision. In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.), the Court said that questions of fact and of credibility must be supported by the evidence. Russell J., in Ramachanthran v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 878, wrote at paragraph 51:
The Court must show significant deference to findings of fact made by a panel of the Refugee Division. The standard of review of decisions of the Refugee Division is generally patent unreasonableness except for questions involving the interpretation of a statute, in which case, the standard becomes one of correctness.
Police report
[20] With regard to the omission in the police report, exhibit P-6, concerning Zapata's acts of violence against the applicant, the applicant explains that the police, and not she, had written the report. The report clearly indicates that she was a victim of extortion by the FARC. The panel therefore erred in finding that she had written the report meant for the police and that this report contradicted her story. This question was addressed in Ngoyi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 272, in which Tremblay-Lamer J. wrote:
Furthermore, the article does not contradict the applicant's version, since it reports his disappearance and not his arrest. The Refugee Division did not question the document's authenticity, so it should at least have recognized that this evidence did not contradict the applicant but corroborated his story as to the fact that he is described by the UDPS authorities as a UDPS fighter and that his disappearance was noted on the eve of the one-day city-wide shutdown.
The documents from the FARC
[21] The panel certainly made a patent error. The applicant has reason to call the panel's jurisdiction into question in its role as a laboratory of documentary expertise. The panel wrote:
When comparing the colour copies, the logo from the originals produced by the claimant at the hearing showed a greenish yellow band rather than a pure yellow in the copy produced from the Web site.
The panel cannot act in such a way. It is not an expert in printing, or an expert in website design. This is a clear and patently unreasonable error. Further, the panel did not allow the applicant to address this issue and did not give her the opportunity to respond. In Levtchenko v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1260, Pinard J. wrote:
However, in a case like this, where the panel goes much further than merely finding that the applicants' fear is exaggerated or inconsistent with the documentary evidence submitted, I am of the opinion that the panel must state in clear and unmistakable terms why it prefers the documentary evidence to the applicants' testimony.
[22] Furthermore, in Goyal v. Canada (Minister of Employment and Immigration) [1992] F.C.J. No. 258, the Federal Court of Appeal (MacGuigan J.A.) wrote the following about the obligation to give the right of reply:
It seems to us that, in the context of this Act and these Regulations, as invariably applied, and as interpreted by the adjudicator himself in this case, fairness required that the party bearing the onus of proof should have the right of reply, and that the failure to provide such an opportunity constituted reviewable error.
CONCLUSION
[23] Given these two manifest errors by the panel, it is the Court's opinion that it is not necessary to address the other issues, such as the date of the letter of invitation from the cousin in Canada, i.e. March 1, one month and nine days before the events. The Court will allow this application for judicial review, on the following conditions. The applicant must file at least one affidavit from her cousin or produce him as a witness before the panel; she must also put in evidence a photo or other documents which establish her relationship with her former partner; finally, the panel must submit the FARC documents for an expert evaluation to establish their authenticity.
[24] If the applicant does not submit this evidence within a reasonable time, without a valid excuse, the decision-maker may draw a negative inference from it. This principle was discussed in Lévesque v. Comeau, [1970] S.C.R. 1010, and Abbott Estate v. Toronto Transportation Commission [1935] S.C.R. 671: the decision-maker can draw a negative inference from the fact that a party does not present evidence or a witness that should have been presented.
ORDER
THE COURT ORDERS that the application for judicial review be allowed and the matter referred to a differently constituted panel.
No serious question of general importance is certified.
"Sean Harrington"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1534-03
STYLE OF CAUSE: CLAUDIA ELENA MORA QUINTERO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MARCH 31, 2004
REASONS FOR ORDER AND ORDER BY: HARRINGTON J.
DATE OF REASONS: APRIL 15, 2004
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada