Date: 20030821
Docket: IMM-6616-02
Citation: 2003 FC 988
Vancouver, British Columbia, Thursday, the 21st day of August, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
AUGUSTINA CASTELANOS DUARTE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
KELEN J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Refugee Division"), dated November 26, 2002, refusing the applicant's claim for refugee status due to her lack of credibility with respect to her claim of a subjective fear of persecution in her homeland, Cuba.
FACTS
[2] The applicant is a citizen of Cuba who fears persecution from Cuban authorities, who wrongly believe she is a prostitute because of her association with a Canadian citizen by the name of Joseph Pomeroy. During the mid-1990s, Mr. Pomeroy was doing business in Cuba and while there he met the applicant at a restaurant where she worked. After the two began a relationship Mr. Pomerory would send the applicant clothing and occasionally visit her in Cuba. Mr. Pomeroy later gave the applicant money to buy a better house in Cuba for herself and her mother. Cuban authorities were suspicious of the relationship and according to the applicant they arrested her for four days in December 1995 for being a prostitute.
[3] In August 1998 the applicant came to Canada on a visitor's visa to see Mr. Pomeroy. She returned to Cuba in November 1998 to transfer her home to her mother as she claims that Cuban officials confiscate the property of any national who has left the country for an extended period of time. She was again stopped by the police and detained on suspicion of being a prostitute. After this incident, the applicant decided to come to Canada to claim refugee status and using a fraudulent exit visa she returned to Canada in May 1999. In February or April 2000 (the record is not clear on this point), the applicant made a refugee claim.
THE DECISION
[4] After a hearing held on October 22, 2002, the Refugee Division denied the applicant's claim on the ground of credibility, namely that she lacked a subjective fear of persecution. The applicant's decision to return to Cuba in November 1998 and her delay in claiming refugee status in Canada were cited as actions inconsistent with her claim to have a subjective fear of persecution. The panel did not accept the applicant's explanation of having to return to Cuba to transfer her home to her mother as consistent with a credible subjective fear of persecution.
ISSUES
[5] This application for judicial review was commenced in December 2002 and a request was made to the Refugee Division for tapes from the hearing. At that juncture, the Refugee Division discovered that it did not have a tape-recording of the applicant's refugee hearing. The applicant now seeks to have this decision set aside:
(1) because her right to natural justice has been breached by the Refugee Division's failure to provide the Court with a transcript of the hearing;
(2) by the failure of the Refugee Protection Officer ("RPO") to disclose relevant documents within the time limits set by the Refugee Protection Division Rules, SOR/2002-228 (the "Rules"); and
(3) because the Refugee Division erred in its finding concerning the issue of delay.
DISCLOSURE
[6] I will first address the issue of disclosure, over which there seems to be some confusion. The applicant claims the DOS Report 2000, which was relied upon by the panel in its decision, was not disclosed to her until the day after the hearing, depriving her of the opportunity to respond. She argues this does not meet the 20-day requirement established by section 29 of the Rules:
Disclosure of documents by a party
29. (1) If a party wants to use a document at a hearing, the party must provide one copy to any other party and two copies to the Division, unless these Rules require a different number of copies.
Disclosure of documents by the Division
(2) If the Division wants to use a document at a hearing, the Division must provide a copy to each party.
Proof that document was provided
(3) Together with the copies provided to the Division, the party must provide a written statement of how and when a copy was provided to any other party.
Time limit
(4) Documents provided under this rule must be received by the Division or a party, as the case may be, no later than
(a) 20 days before the hearing; or
(b) five days before the hearing if the document is provided to respond to another document provided by a party or the Division.
***
Communication de documents par une partie
29. (1) Pour utiliser un document à l'audience, la partie en transmet une copie à l'autre partie, le cas échéant, et deux copies à la Section, sauf si les présentes règles exigent un nombre différent de copies.
Communication de documents par la Section
(2) Pour utiliser un document à l'audience, la Section en transmet une copie aux parties.
Preuve de transmission
(3) En même temps qu'elle transmet les copies à la Section, la partie lui transmet également une déclaration écrite indiquant à quel moment et de quelle façon elle en a transmis une copie à l'autre partie, le cas échéant.
Délai
(4) Tout document transmis selon la présente règle doit être reçu par son destinataire au plus tard :
a) soit vingt jours avant l'audience;
b) soit, dans le cas où il s'agit d'un document transmis en réponse à un document reçu de l'autre partie ou de la Section, cinq jours avant l'audience.
[7] A review of the record reveals that the DOS Report 2000 was provided to the applicant as part of the initial disclosure package dated March 26, 2001. It is not disputed that she received this package more than 20 days prior to the hearing. The supplementary package received by the applicant the day after the hearing contained a copy of the 2001 version of that report (erroneously referred to as the 2002 report in the document index); however, neither the 2001 report nor any of the other documents contained in the supplementary package were relied upon by the Refugee Division in its decision. Therefore, any breach of the Rules that may have occurred was inconsequential to the outcome of the hearing and is not a sufficient basis upon which to allow this application.
BREACH OF THE RULES OF NATURAL JUSTICE DUE TO THE ABSENCE OF A TRANSCRIPT
[8] The next issue is the absence of a recording of the hearing. The Refugee Division is not required by the Rules to provide applicants with a recording of the hearing and the absence of a recording alone is not a sufficient basis to allow the application: Kandiah v. Canada (Minister of Employment and Immigration) (1992), 141 N.R. 232 (F.C.A.). In situations where there is no statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at paras. 72-87. The applicant must demonstrate there is a "serious possibility" of an error on the record or that the absence of a recording will deprive him or her of grounds for review: Shergill v. Canada (Minister of Citizenship and Immigration), 2003 FCT 24.
[9] The Refugee Division found that the applicant did not have a credible subjective fear of persecution for the following reasons:
1. she would not have returned to Cuba to transfer the deed to her house to her mother if she had a real fear of persecution; and
2. the applicant would not have waited almost a year after arriving in Canada before making a refugee claim if she had a real fear of returning to Cuba.
[10] The applicant submits that her testimony at the hearing gave a reasonable explanation why she returned to Cuba (to transfer the deed to her house), and why she delayed 11 months in making her refugee claim. Without the transcript, the applicant submits that this Court cannot review these explanations to determine if the Refugee Division's finding with respect to a lack of subjective fear is supported by the evidence and is reasonable.
[11] For the purpose of this judicial review, I have accepted that the applicant's testimony at the hearing was exactly as she states in her affidavit. I note that there is no explanation in the affidavit which conflicts with any of the facts relied upon by the Refugee Division.
[12] On this basis, I have reviewed the Refugee Division's finding that the applicant did not have a subjective fear of persecution and find that there is no explanation provided by the applicant in her affidavit evidence which shows that the decision was not reasonably open to the Refugee Division. It is reasonably open to the Refugee Division to find that a person who claims to have a real fear of persecution if returned to their homeland would not risk their safety for the sake of transferring a piece of real estate. Similarly, a person who has a bona fide subjective fear of being returned to their homeland would not wait 11 months before making a refugee claim.
[13] Accordingly, the Court finds that there was a reasonable basis for the Refugee Division's finding that the applicant did not have a credible subjective fear of persecution assuming that the applicant's testimony was as stated in her affidavit. As such, the applicant has not demonstrated that there is a "serious possibility" that the absence of a transcript will deprive the applicant of a ground for judicial review.
DELAY
[14] The applicant submits that the Refugee Division erred in its finding concerning the issue of delay. While there are several cases where the court has stated that while delay in making a claim is an important factor to consider, delay is not decisive: Hue v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 283 (QL) (C.A.); Saez v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 317; Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.); and Papsouev v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 99. The legal proposition to draw from this jurisprudence is that the presence of delay does not mandate the dismissal of a claim as a claimant may have a reasonable explanation for the delay. Nonetheless, delay may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim. It will ultimately depend upon the facts of each claim.
[15] In this case, the applicant's explanation for the delay was not acceptable as a reasonable explanation by the Refugee Division. There is no evidence presented by the applicant in her affidavit which conflicts with any of the facts relied upon by the Refugee Division in this regard. Accordingly, the Refugee Division did not err in considering delay as a factor in assessing the applicant's credibility with respect to her claim of a subjective fear of persecution if forced to return to Cuba.
[16] For these reasons, this application for judicial review must be dismissed. Neither counsel posed a question for certification. The Court agrees that this application does not raise a serious question which warrants certification.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed.
(Sgd.) "Michael E. Kelen"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6616-02
STYLE OF CAUSE: AGUSTINA CASTELLANOS DUARTE v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: August 19, 2003
REASONS FOR ORDER AND ORDER: KELEN J.
APPEARANCES:
Ms. Nicole Hainer For the Applicant
Mr. Peter Bell For the Respondent
SOLICITORS OF RECORD:
Elgin, Cannon & Associates For the Applicant
Vancouver, BC
Morris Rosenberg For the Respondent
Deputy Attorney General of Canada