Federal Court Decisions

Date: 20050824

Docket: IMM-9080-04

Citation: 2005 FC 1149

Ottawa, Ontario, August 24, 2005

PRESENT:    The Honourable Mr. Justice O'Reilly

BETWEEN:

FREDDY AGENOR VELEZ ZAMBRANO,

MIRYAM MARITZA MONCADA AQUILERA,

OSCAR DANIEL VELEZ MONADA,

RICARDO ANDERS VELEZ MANCADA

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]    The applicants came to Canada in 2004 seeking refugee protection. They had left Venezuela in 2003 and spent some time in the United States before continuing on to Canada. A panel of the Immigration and Refugee Board dismissed their allegations of political persecution in Venezuela. The Board also rejected Ms. Moncada Aguilera's separate claim to fear returning to Ecuador, where she was born and resided until 1988. She said that she feared her violent ex-husband.

[2]    This application for judicial review relates solely to Ms. Moncada Aguilera's failed refugee claim. She argues that the Board improperly discounted her evidence on the grounds she had filed her personal information form (PIF) just 20 days before the hearing. She also submits that the Board ignored important evidence when it concluded that her ex-husband no longer posed a threat to her.

[3]    I agree with Ms. Moncada Aguilera's submissions and, therefore, will allow her application for judicial review and order a new hearing.

I.      Issues

1.                 Did the Board err in drawing an adverse inference from the late filing of Ms. Moncada Aguilera's PIF?

2.                Did the Board ignore evidence relating to the likelihood that Ms. Moncada Aguilera's ex-husband might still wish to harm her?

II.      Analysis

A. Did the Board err in drawing an adverse inference from the late filing of Ms. Moncada Aguilera's PIF?

[4]    Until 20 days before the hearing, Ms. Moncada Aguilera relied on her husband's allegations of political persecution in Venezuela. She then put forward an independent claim stating her fear of her ex-husband in Ecuador. Naturally, the Board wondered why she waited so long.

[5]    In its reasons, the Board stated that Ms. Moncada Aguilera's explanation for the delay was simply that "she was thinking only of her husband's problem". The Board found that explanation not to be credible. In fact, Ms. Moncada Aguilera had explained to the Board that she had not realized that she might be sent to Ecuador, even though the family was from Venezuela, that she had not been represented by counsel when she submitted her original PIF, that she did not speak English, and that she filed the amended PIF after obtaining the advice of counsel. The Board did not refer to her explanations in its reasons. In my view, the Board had an obligation at least to consider the reasonableness of her explanations before making an adverse credibility finding against her: Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.) (QL).

B. Did the Board ignore evidence relating to the likelihood that Ms. Moncada Aguilera's ex-husband might still wish to harm her?

[6]    Ms. Moncada fled Ecuador in 1988, leaving her abusive husband behind. She returned in 1998 to visit her ailing mother. Even though she had left her husband ten years earlier, he was still angry.

[7]    The Board mentioned Ms. Moncada Aguilera's trip to Ecuador in 1998. It noted her testimony that he had come to the door of her mother's house, while she hid in the back. The Board concluded from this that it was implausible that the ex-husband would still be interested in her ten years after her departure from Ecuador, and their uncontested divorce.

[8]    However, the Board failed to mention important information in Ms. Moncada Aguilera's testimony. She testified that during her visit to Ecuador in 1998, her ex-husband drove by her mother's house on a motorcycle, shooting a handgun into the air while cursing and threatening to kill her. He then knocked on the door. Ms. Moncada Aguilera hid in fear.

[9]    The Board referred only to the last part of her testimony and concluded from it that Ms. Moncada Aguilera was in no danger from her ex-husband. In my view, the Board trivialized her evidence. It was clearly open to the Board to conclude that it was unlikely that Ms. Moncada Aguilera's ex-husband would pursue her at this point. But it could do so only on the basis of the full evidence before it.

[10]                        Given that the Board failed to consider probative evidence, I must allow this application for judicial review. 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;

2.                   No question of general importance is stated.

"James W. O'Reilly"