Date: 20050119
Docket: IMM-4302-04
Citation: 2005 FC 81
Montréal, Quebec, January 19, 2005
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
JUAN PORTOCARRERO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) from a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel) dated April 21, 2004. In that decision, the panel determined that the applicant did not qualify as a "Convention refugee" defined in section 96 or as a "person in need of protection" defined in section 97.
[2] In this case, there is no issue of credibility. It was rather the applicant's conduct which the panel found was in no way compatible with that of a person with a well-founded fear of persecution (page 6 of the decision).
[3] Applicant's counsel persuaded the Court that the panel made several determinative factual errors. For example, it is stated on two occasions that the applicant is a citizen of Venezuela when in reality he is a Peruvian national. If there had only been that error, it would not be subject to review. However, there is much more. At page 4 of the decision, the panel states that the applicant fled his country for the United States, leaving behind his wife and children who were targeted by the same death threats as he was. The stenographer's notes state the contrary.
[4] At the third paragraph of page 4 of the decision, another error in the date was noted. Instead of August 2002, it was August 2000, which the respondent acknowledges. At page 5, the panel writes ". . . Note that he made his first attempt when he went to the US in 1998, subsequently returning to Venezuela because his daughter was ill. He could easily have returned to the US, since he had a valid US visa, but he did not do so. . . ." The stenographer's notes (page 967) state that even with his valid visa, he was "turned back" towards Peru.
[5] The glaring errors pointed out are worthy of the Court's intervention and warrant a referral for reconsideration of the evidence.
[6] The parties declined to submit questions for certification. This case does not raise any.
ORDER
THE COURT ORDERS that:
The application for judicial review be allowed and the matter be referred to a differently constituted panel.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4302-04
STYLE OF CAUSE: JUAN PORTOCARRERO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 19, 2005
REASONS FOR ORDER AND ORDER: MR. JUSTICE BEAUDRY
DATE OF REASONS: January 19, 2005
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Caroline Doyon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
LaSalle, Quebec
John H. Sims FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec