Date: 20021126
Docket: IMM-5850-01
OTTAWA, Ontario, November 26, 2002
Before: Pinard J.
Between:
Houssainatou DIALLO
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the IRB") on December 7, 2001, that the plaintiff is not a Convention refugee is allowed. The matter is accordingly referred back to a different panel of the IRB for re-hearing and reconsideration.
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"Yvon Pinard"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20021126
Docket: IMM-5850-01
Neutral citation: 2002 FCT 2004
Between:
Houssainatou DIALLO
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the IRB") on December 7, 2001, that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The plaintiff is a citizen of Guinea Conakry. She claimed refugee status on account of membership in a particular social group, namely woman victims of forced marriages.
[3] The IRB refused to grant the plaintiff refugee status, concluding that she was not credible and had not presented sufficient evidence for it to find that there was a "well-founded" of persecution in the event of return to her country. It gave the following reasons in support:
[TRANSLATION]
- The plaintiff's behaviour was not compatible with her story. In that story she said she was a determined and aggressive young woman as she had always been able to assert her rights and ensure they were respected.
- Although she returned to Canada on August 17, 2000, after a brief visit to her country, she did not claim refugee status until February 1, 2001.
- The panel did not believe the explanations given by the plaintiff for the delay, namely that she was entitled to return to Canada on her student visa and was suffering from severe depression.
- When the claimant was asked to describe Mr. Barry, she was very hesitant and vague in her replies. She was unable to give specific details about this man.
[4] The plaintiff argued that since the IRB's decision was silent on the fact that she agreed to proceed before a member sitting alone, the decision is presumed to be unlawful as it was made without jurisdiction, which indicates a lack of competence or at least an error of law subject to sanction. I do not agree.
[5] The Act contains no requirement that the decision should specifically mention a person's agreement to be heard by one member rather than two. The relevant provisions of the Act are as follows:
| 69.1 (7) Subject to subsection (8), two members constitute a quorum of the Refugee Division for the purposes of a hearing under this section. |
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69.1 (7) Le quorum de la section du statut lors d'une audience tenue dans le cadre du présent article est constitué de deux membres. |
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| (8) One member of the Refugee Division may hear and determine a claim under this section if the person making the claim consents thereto, and the provisions of this Part apply in respect of a member so acting as they apply in respect of the Refugee Division, and the disposition of the claim by the member shall be deemed to be the disposition of the Refugee Division. |
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(8) Si l'intéressé y consent, son cas peut être jugé par un seul membre de la section du statut; le cas échéant, les dispositions de la présente partie relatives à la section s'appliquent à ce membre et la décision de celui-ci vaut décision de la section. |
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[6] In the case at bar, as appears from the transcript of the hearing before the member, the plaintiff clearly indicated her consent to proceeding before a single member, making this choice with knowledge of the facts on the advice of her counsel, who was present.
[7] At the same time, I agree with the plaintiff's argument that the tribunal was wrong to base its decision on her lack of credibility.
[8] The IRB's inferences in this regard were based essentially on the inconsistency of the plaintiff's story with her personality, her inability to describe Mr. Barry satisfactorily and the delay in making her refugee status claim.
[9] I do not see how the plaintiff's intelligence, education and determination can adversely affect her testimony here. Further, the transcript indicated that not only were the plaintiff's replies about Mr. Barry not vague, they were quite precise. Finally, the explanations given by the plaintiff about the delay in making the claim were solidly based on evidence and seem quite reasonable to me: she was entitled to be in Canada on her student visa and, as appears from her physician's letter, she was suffering from severe depression. It is true that delay in making the claim can be a relevant factor, but it is not decisive in itself in determining whether there was a valid fear of persecution: the tribunal must consider the explanations offered (see Hue v. Canada (M.E.I.) (March 8, 1988), A-196-87, [1988] F.C.J. No. 283 (C.A.) (QL)).
[10] The IRB's conclusion on credibility seems to me to be supported by the wrong reasons and this Court's intervention is accordingly justified.
[11] Consequently, the application for judicial review is allowed and the matter referred back to an IRB panel of different members for re-hearing and reconsideration.
| "Yvon Pinard"
Judge |
OTTAWA, ONTARIO
November 26, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-5850-01
STYLE OF CAUSE: Houssainatou DIALLO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 22, 2002
REASONS FOR ORDER BY: Pinard J.
DATED: November 26, 2002
APPEARANCES:
Jean-François Fiset FOR THE PLAINTIFF
Caroline Cloutier FOR THE DEFENDANT
SOLICITORS OF RECORD:
Jean-François Fiset, attorney FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario