Ottawa, Ontario, March 29, 2006
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant is a citizen of Hungary. On August 21, 2003, she arrived in Canada to visit her aunt. One year later, she applied for refugee protection, alleging a well-founded fear of persecution as the victim of two sexual assaults by her former fiancé in 2003.
[2] The Refugee Protection Division determined the applicant is neither a Convention refugee nor a person in need of protection. In so deciding, the member concluded that the applicant's evidence was neither trustworthy nor credible. This proceeding is the application for judicial review of the member's decision.
[3] There was a six-week adjournment between the first and second days of the two-day refugee hearing. Prior to each hearing day, the applicant filed corrected versions of the hospital records she relied upon to support the veracity of the alleged sexual assault of July 20, 2003.
[4] The questions asked by the presiding member and the refugee protection officer challenged the genuineness of the hospital records. The applicant and her counsel had the opportunity to respond on both days of the hearing. The relevant hospital records were collated by the Court from the tribunal record and filed as a separate package of documents in this proceeding during the judicial review hearing.
[5] The member's reasons for decision disclose a thorough analysis of the evidence. The decision seriously questions, in clear and unmistakable terms, the authenticity of the hospital records. Upon a close review of the hearing transcripts and the hospital documentation, I am satisfied that the record discloses no reviewable error concerning this credibility issue, let alone a patently unreasonable one.
[6] However, this does not end the matter. The Court also made available to counsel on the day of the hearing a three-page document, now part of the record in this proceeding, setting out over twenty questions asked by the presiding member and the refugee protection officer. Many of these questions, including those of the refugee protection officer, were irrelevant to the determination of whether the applicant was the victim of one or more sexual assaults. The presiding member's properly expressed concern at the outset of the refugee hearing, for the "delicate nature" of the claim, was not subsequently reflected in the questioning. The language used in the questions and their tenor cannot be condoned. The same tone is found in several questionable paragraphs in the lengthy written reasons.
[7] There is case law that sarcastic comments by the panel during a refugee hearing will not necessarily warrant this Court's intervention: see Varaich v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 336 (T.D.) at paragraphs 12-13; Kankanagme v. Canada (Minister of Citizenship and Immigration), 2004 FC 1451 at paragraphs 18-19. However, in my view, this jurisprudence should find no application in claims raising allegations of gender-based persecution.
[8] The negative credibility finding concerning the hospital records in this case is serious. However, the disconcerting language used in questioning the applicant, even allowing for the questioners' frustration with the credibility issue, cannot be justified. In the circumstances of this gender-based claim, the language used in and the irrelevant issues raised by the questions irreparably tainted the applicant's right to a fair hearing.
[9] Despite the member's negative finding concerning the genuineness of the hospital records, it is not "pointless" (Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (QL) (C.A.) at paragraph 10) to order a new hearing. Indeed, it is necessary to do so. In the words of my colleague, Justice Michel Shore: "Even, if the ultimate conclusion is the same as that of the Board, the means do not necessarily justify the ends and the ends do not necessarily justify the means." (Nahimana v. Canada(Minister of Citizenship and Immigration), 2006 FC 161 at paragraph 35).
[10] The parties are correct in acknowledging that this proceeding raises no serious question for certification.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed.
2. The determination, dated April 29, 2005, by the Refugee Protection Division that the applicant is neither a Convention refugee nor a person in need of protection is set aside and the matter is referred before a differently constituted panel for rehearing and re-determination.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3105-05
STYLE OF CAUSE: JUDIT JONAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: TUESDAY, MARCH 21, 2006
DATED: MARCH 29, 2006
Ms. Siliva Valdman FOR THE APPLICANT
Mr. Richard Casanova FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Silivia Valdman
Barrister and Solicitor
Ottawa, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.c.
Deputy Attorney General of Canada FOR THE RESPONDENT