Date: 20040805
Docket: IMM-6357-03
Citation: 2004 FC 1079
Montréal, Quebec, August 5, 2004
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
SANDRA PATRICIA ZAVALA SIBAJA
GUILLERMO ARTURO OVALLE ZAVALA
Applicants
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] On July 25, 2003, the Refugee Protection Division (the panel) decided that the applicants, a mother and her minor son, citizens of Mexico, were not refugees or persons in need of protection on the basis that Ms. Sibaja's story of persecution "is a complete fabrication".
[2] Before this Court, the panel's finding against Ms. Sibaja's claim is not challenged and therefore that application for judicial review by her must be dismissed.
[3] What is disputed in this case is the determination on the claim of the minor son who was 14 years old when he testified before the panel.
[4] Two grounds were raised:
(I) There was no designated representative named by the panel as required under subsection 167(2) of the Immigration and Refugee Protection Act (the Act) which reads:
|
(2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules. |
(2) Est commis d'office un représentant à l'intéressé qui n'a pas dix-huit ans ou n'est pas, selon la section, en mesure de comprendre la nature de la procédure. |
(ii) the panel dismissed the minor child's claims without any justification.
[5] In my view, the panel's decision concerning young Guillermo must be set aside for the two grounds raised, but especially because the panel simply did not address his claim.
[6] The young claimant testified before the panel. The panel questioned him about (1) his school, (2) his home, (3) his summer vacation in 2001 with his father, divorced from his mother, (4) why he had not returned to school in September 2001, (5) if he understood the truth, (6) where his father lived.
[7] It was only after all of these questions had been asked that the young claimant was sworn. The panel or the refugee protection officer asked questions on (7) where he was in September and October 2001, (8) when the departure for Canada had been planned, (9) why he wanted to come to Canada (10) who was responsible for the kidnappings at his school and at his cousin's school.
[8] Then Ms. Sibaja testified outside the presence of her son, whom the panel had excluded. The panel wanted to know from Ms. Sibaja if the child had ever been imprisoned with her by her purported agent of persecution during a trip in August 2001. She answered "yes". Afterward, the panel asked her many questions about this imprisonment.
[9] In my opinion, the panel had to make a determination on Guillermo's claim. This is required by the Act and Guideline 3 on children from the Chairperson of the Immigration and Refugee Board. The panel failed to fulfil its duty when it did not analyze the evidence and did not make a determination on the claim.
[10] I do not accept the respondent's arguments on the first ground regarding the designation of a representative for Guillermo.
[11] The respondent submits that Ms. Sibaja was designated as a representative and as evidence he calls my attention to the first page of the decision where Ms. Sibaja's name appears in the space between the typed words "représentant désigné - designated representative".
[12] However, it is obvious that Ms. Sibaja was not designated at the beginning or during the hearing on June 10, 2003; there is no indication of it in the transcript.
[13] Further, it appears that no pre-trial conference was held; often the designation is made during that pre-trial conference.
[14] In my view, additional evidence from the respondent in the form of an affidavit confirming the designation was necessary, which was not done.
[15] The designation of a representative in accordance with subsection 167(2) of the Act is mandatory.
[16] A procedural default before the panel is not excused simply because no objection was raised (see Phillip v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1820 at paragraph 7).
[17] I endorse the following remarks by Rothstein J., then in Trial Division, in Phillip, supra at paragraph 9:
¶ 9 One of the Court's functions is to be a supervisor of the conduct of federal tribunals. When tribunals conduct their proceedings without regard for statutory requirements, the Court will speak out strongly so as to ensure that loud and clear guidance is given for future proceedings. That is what the Court is doing here.
[18] Sharlow J.A., on behalf of the Federal Court of Appeal in Stumf v. Canada (Minister of Citizenship and Immigration) 2002 FCA 148, [2002] F.C.J. No. 590 wrote this about the obligation to name a representative under subsection 69(4) of the former Immigration Act:
¶ 6 It is our view that subsection 69(4) of theImmigration Act imposes on the Board an obligation to designate a representative for any refugee claimant who meets the statutory criteria, and that the obligation arises at the earliest point at which the Board becomes aware of those facts. In this case, the age of the minor claimant was apparent from the outset, and the matter of designating a representative for her should have been considered at least at the point at which abandonment proceedings were in contemplation, and certainly should have been done before the motion to re-open the claim was considered. The failure of the Board to do so was an error that vitiates the decision to refuse the motion.
[19] The respondent claims that the failure to designate a representative does not vitiate the decision in regard to the child's claim.
[20] Assuming without deciding that this argument is a relevant consideration when subsection 167(2) of the Act has been breached, I adopt the conclusion of Dawson J. in Duale v. Canada (Minister of Citizenship and Immigration) 2004 FC 150, [2004] F.C.J. No. 178, at paragraph 20:
¶ 20 In light of the first three findings of the RPD set out above, I am unable to safely conclude that the failure to appoint a designated representative could not have had an adverse effect on the outcome of the claim. A designated representative would have been responsible for assisting Mr. Duale to obtain evidence. The evidence before me supports the inference that the evidence gathering process was not what it could have been. (In fairness, I note that counsel for Mr. Duale in this Court did not represent Mr. Duale before the RPD).
ORDER
Ms. Sibaja's application for judicial review is dismissed. However, that of the minor child is allowed; the panel's decision on his claim is set aside and it must be reconsidered by a differently constituted panel. No question was proposed for certification.
"François Lemieux"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6357-03
STYLE OF CAUSE: SANDRA PATRICIA ZAVALA SIBAJA
GUILLERMO ARTURO OVALLE ZAVALA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 3, 2004
REASONS FOR ORDER AND ORDER: LEMIEUX J.
DATE OF REASONS: August 5, 2004
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Simone Truong FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec