Date: 20060125
Docket: IMM-1642-05
Citation: 2006 FC 37
BETWEEN:
SAMNANG CHUOP
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated February 11, 2005, ruling that the applicant, who was not considered credible, was not a “Convention refugee” or a “person in need of protection” within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Samnang Chuop (the applicant), a citizen of Cambodia, alleges that he fears persecution because of his perceived political opinions.
[3] The applicant submits, first, that the IRB erred in criticizing him for having taken more than a week before claiming refugee status when arriving in Canada. In my opinion, the applicant is right, since he had a visa that was valid for six months.
[4] In Houssainatou Diallo v. Minister of Citizenship and Immigration, 2002 FCT 2004, I stated:
[9] . . . 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. . . .
[5] The situation in this case is essentially the same as the one in Diallo. Moreover, the delay of about one week is not in itself an inexcusable delay.
[6] The applicant says the IRB also erred in noting that, since he had had opportunities to travel and had not taken advantage of these to file a claim, the applicant undermined his own credibility concerning his subjective fear of persecution.
[7] But the latter testified that he had decided to leave Cambodia after Som Rathana had threatened him:
Q. What happened that made you decide to leave Cambodia and come to Canada to claim refugee status?
. . .
- (Because my life was threatened.)
Q. Okay, by whom?
R. From Rathana and his group.
Q. And when did they threaten your life?
R. Think it=s 2nd of February 2004... Oh, January, sorry. Because, okay, because I give a speech in public.
[8] The IRB erred, therefore, in criticizing the applicant for having failed to claim during his trips to Sweden in 1998, and Holland in 2000, since his real fear of persecution did not begin until 2004, after Som Rathana uttered his threats.
[9] In my opinion, these two errors related to the assessment of the applicant’s credibility taint the decision as a whole and reduce the weight the IRB may have given to the contradictions and omissions otherwise identified in the applicant’s testimony.
[10] The intervention of this Court is therefore warranted and the application for judicial review is allowed. The matter is returned to the IRB for redetermination by a differently constituted panel.
Yvon Pinard
_________________________________
Judge
OTTAWA, ONTARIO
January 25, 2006
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1642-05
STYLE OF CAUSE: SAMNANG CHUOP v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 13, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Pinard
DATE OF REASONS: January 25, 2006
APPEARANCES:
Éveline Fiset FOR THE APPLICANT
Édith Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Éveline Fiset FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Date: 20060125
Docket: IMM-1642-05
Ottawa, Ontario, the 25th day of January, 2006
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
SAMNANG CHUOP
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated February 11, 2005, ruling that the applicant is not a “Convention refugee” or a “person in need of protection” within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is set aside and the matter is referred back to the IRB for redetermination by a differently constituted panel.
Yvon Pinard
_________________________________
Judge
Certified true translation
François Brunet, LLB, BCL