Ottawa, Ontario, January 25, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA) for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated January 16, 2006, which determined that the applicant was neither a Convention refugee nor a person in need of protection.
[2] The applicant seeks an order quashing the Board’s decision and remitting the matter for redetermination by a differently constituted panel of the Board.
Background
[3] The applicant, Nalini Devikara Swaminathan, is a forty-nine year old Tamil citizen of Sri Lanka. She alleged having a fear of persecution due to her membership in a particular social group, namely, as a Tamil woman subjected to domestic violence and the wife of an alleged child molester.
[4] The applicant explained the circumstances leading to her claim for asylum in her Personal Information Form (PIF) narrative. The applicant married her husband in 1986 and moved to join him in the United Arab Emirates in 1989. Her husband began taking frequent business trips during which the applicant suspected that he was participating in homosexual relationships. When she complained to her husband about feeling neglected, he threatened to send her back to Sri Lanka. The applicant’s son was born in 1992 and diagnosed with Down syndrome. The applicant claimed that in 2003, her husband began sleeping in the same room as their son and became obsessed with him. The applicant later found out that her son displayed physical signs of sexual abuse. When she confronted her husband, he denied the allegations.
[5] The applicant went to Sri Lanka in July 2004 and told her husband’s family about her son’s sexual abuse. As a result, she was beaten by her husband and verbally abused by his family. The applicant was accused of having psychological problems and was forcibly taken to a psychiatrist. The applicant’s husband eventually left her and their son in Sri Lanka, but kept their passports. The applicant’s husband called her cousin in Sri Lanka and told him that he was hiring a hit man to kill the applicant. In November 2004, the applicant’s husband returned to Sri Lanka and took their son back with him to Dubai. He gave the applicant her passport and told her not to return to Dubai.
[6] Family members advised the applicant to come to Canada and her husband provided her with a visitor’s visa. The applicant left Sri Lanka on November 27, 2004, and travelled to Dubai, where she stayed until December 2, 2004. She arrived in Canada on December 2, 2004, and claimed refugee protection on March 2, 2005. The applicant claimed that she was unable to return to Dubai or Sri Lanka because her husband or his brothers would harm her. In addition, she sought legal status in Canada in order to rescue her son.
[7] Applicant’s counsel requested that the refugee hearing take place in-person in Toronto. The applicant had a videotape supporting her allegations of sexual abuse which could not be used in a video conference. This request was denied and the hearing was held by video conference on November 15, 2005. Applicant’s counsel did not make a motion to vary the order of questioning at the outset of the hearing and the Board questioned the applicant first. The applicant felt that the Board conducted the hearing in an aggressive and intimidating manner. The Board rejected the applicant’s claim by decision dated January 16, 2005, because she failed to provide credible evidence in support of her claim. This is the judicial review of the Board’s decision.
Board’s Reasons
[8] The Board found that the applicant had not met the burden of establishing through credible evidence that she was a Convention refugee or a person in need of protection. The Board acknowledged that statements given under oath are presumed to be true unless there are reasons for doubting their veracity. The Board noted certain problems with the applicant’s testimony which placed her credibility into question:
- She was asked why her husband would tell her cousin that he had hired a hit man. She did not provide a satisfactory answer and did not produce a written statement from her cousin confirming the conversation. She failed to establish that it was unreasonable to expect her to contact her cousin and obtain a document which was central to her alleged fear.
- The applicant stated that she feared being deported to Sri Lanka for raising the issue of her son’s sexual abuse. The Board found it implausible that it would take her husband three years from the time she began accusing him to fulfill this threat.
- She gave unclear testimony about the time she spent in 2004 with her husband’s family in Sri Lanka. The Board noted discrepancies regarding the dates when the applicant claimed to have stopped living with her husband’s family and rented a room in which to live with her son.
- She claimed to fear her husband’s family but testified that from July until November 2004, she had no contact with them. The Board concluded that her husband’s family did not pose a serious risk to the applicant.
- She claimed to have no support system in Sri Lanka, however, she had not asked her brother for help on the basis that he had his own problems. The applicant also explained that her family was not as powerful as her husband’s, a fact which was not mentioned in her PIF narrative.
- Her explanation for failing to seek protection from Sri Lankan authorities (because she was scared), lacked credibility since she had a cousin who had helped her and a brother whom she had not approached.
- The applicant did not give a satisfactory answer as to why she did not hide her son in order to protect him from her husband when he returned to Sri Lanka in November 2004.
- The applicant testified that her husband threatened her with death upon his return to Sri Lanka. She also testified that she had stayed with her husband in Dubai for four days prior to her arrival in Canada and explained that she wanted to see her children. The Board did not find these actions consistent with her allegation of having been threatened with death. Her PIF narrative did not mention that her husband had threatened her life in November 2004.
- The applicant did not obtain a sworn statement from her cousin in Canada, upon whom she was counting for help. She gave the unsatisfactory explanation that she did not want anyone to get involved.
[9] The Board considered documentary evidence regarding state protection in Sri Lanka which indicated that in 2002, the police opened an office to help the National Child Protection Authority with child abuse investigations. In addition, Sri Lankan law defined child abuse as including acts of sexual violence against children. The Board noted that the applicant had a videotape of her son’s injuries, but found that she had not established that she could not have reasonably expected to receive protection for her son in Sri Lanka. Also, her PIF narrative did not refer to connections between her husband’s family and the police.
[10] The Board concluded that the applicant had not established that she had been threatened by her husband or was endangered by his family. In any case, the Board did not believe that there was more than a mere possibility that she would face a risk to her safety if returned to Sri Lanka. The Board noted its consideration of the Gender Guidelines but did not find that they changed the outcome of the decision, since the applicant had not come to Canada for the reasons alleged. The Board noted that the applicant’s husband allowed her to speak to her children every week and that this was inconsistent with the allegations she had made against him. The applicant’s claim was therefore rejected.
Issues
[11] I would rephrase the issues submitted for consideration by the applicant as follows:
1. Did the Board breach the principles of procedural fairness?
2. Was the Board’s credibility finding patently unreasonable?
Applicant’s Submissions
[12] The applicant submitted that the Board’s findings of fact are reviewable if made in a perverse or capricious manner, or without regard to the material (see Federal Courts Act, R.S.C. 1985, c. F-7, as amended., subsection 18.1(4)). It was submitted that errors of law are reviewable on a correctness standard (see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193).
[13] The applicant submitted that pursuant to Chairperson’s Guideline 7, the Board cross-examined the applicant before she presented her case through counsel, which may have affected the fairness of the hearing. In Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 168, 2006 FC 16, the Court held that this practice breached the applicant’s right to procedural fairness. The applicant noted that guidelines are not legally binding and that the Board fetters its discretion by following them automatically. The applicant submitted that counsel’s failure to object to the order of questioning at the hearing did not waive her right to raise the issue on judicial review (see Ganji v. Canada (Minister of Citizenship and Immigration) (1997), 135 F.T.R. 283, 40 Imm.L.R. (2d) 95).
[14] The applicant submitted that the Board member breached his oath of office and violated Rule 8 of the IRB Code of Conduct by proceeding to cross-examine her first and failing to ask questions in a neutral manner. It was submitted that pursuant to this rule, Board members who question claimants except for the purpose of clarification are in violation of their oath and their decisions are void ab initio. The applicant submitted that she was denied a fair hearing due to the Board’s abusive conduct. Her affidavit indicated that the Board’s questioning was aggressive and frightening. In Ritchie v. Canada (Minister of Citizenship and Immigration) (2006), 146 A.C.W.S. (3d) 331, 2006 FC 99, the Court held that posing insensitive questions, using inflammatory language and asking unanswerable questions, amounts to a denial of natural justice.
[15] The applicant submitted that the Board’s failure to consider the Gender Guidelines constituted a breach of natural justice. It was submitted that the Board committed an error in circular reasoning in finding that credibility concerns pre-empt the application of the Gender Guidelines. In Ritchie above, the Court stated that while the Guidelines are not law, they should be followed in order to ensure a fair hearing in gender-based protection claims. The Court held that the Board committed a breach of natural justice in failing to mention or apply the Guidelines.
[16] The applicant submitted that the Board committed a reviewable error in failing to consider her post-hearing submissions (see Avci v. Canada (Minister of citizenship and Immigration) (2003), 313 N.R. 307, 2003 FCA 359). These submissions included relevant case law which, if considered, would have provided the Board with the proper context in which to make the decision.
[17] The applicant submitted that the Board’s negative credibility determination was based upon two findings: (1) the implausibility of the three-year delay before her husband acted upon his threat to send her to Sri Lanka for having accused him of sexual abuse; and (2) her failure to produce corroborating evidence that her husband wished to harm her. It was submitted that the Board did not make a clear credibility finding. The applicant submitted that the Board’s implausibility finding was directed at her husband’s behaviour and not her own. It was submitted that the passage of time after her initial accusation made his actions plausible.
[18] The applicant submitted that the Board did not notify the applicant that she should bring corroborating evidence to the hearing. The applicant submitted that the Board could have alerted her to the possibility of producing such evidence through the File Screening Form. It was noted that affidavit evidence is generally seen as self-serving when filed in refugee hearings. The applicant submitted that the videotape, her best piece of evidence, was dismissed at the beginning of the hearing. It was therefore unreasonable to blame her for failing to produce additional affidavits, the need for which she could not have foreseen without proper notice (see T. A. v. Canada (Minister of Citizenship and Immigration) (2006), 53 Imm.L.R. (3d) 132, 2006 FC 212). The applicant submitted that the Board’s credibility finding is therefore reviewable by the Court.
Respondent’s Submissions
[19] The Board found that the applicant’s story included several discrepancies and implausibilities, and that she failed to provide credible evidence in support of her claim. The respondent submitted that the Board has expertise in the determination of questions of fact and that the Court should not interfere with its conclusions merely because it disagrees (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.)). The respondent submitted that a refugee claimant must provide credible evidence, including corroborating documentation, in support of their claim (see Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739, 93 D.L.R. (4th) 144 (F.C.A.)). It was submitted that the applicable standard of review was patent unreasonableness and that the applicant had failed to point to a conclusion that was not supportable on the evidence (see Sinan v. Canada (Minister of Citizenship and Immigration) (2004), 128 A.C.W.S. (3d) 1173, 2004 FC 87).
[20] In light of documentary evidence regarding child protection efforts in Sri Lanka, the Board found the applicant’s explanation for failing to approach the authorities objectively unreasonable. It was submitted that given the lack of credible and objective evidence supporting the applicant’s alleged fear, the Board properly determined that her claim was not well-founded.
[21] The respondent submitted that the applicant failed to establish that the hearing did not comply with natural justice. Counsel did not formally object to the order of questioning at the hearing and therefore cannot allege that the Board fettered its discretion (see Refugee Protection Division Rules, S.O.R./2002-228, Rules 43 and 44). The respondent submitted that in Thamotharem above, the Court concluded that the principles of natural justice do not require an examination-in-chief by counsel. In addition, there is case law stating that Guideline 7 incorporates a flexible approach (see Benitez v. Canada (Minister of Citizenship and Immigration) (2006), 40 Admin.L.R. (4th) 159, 2006 FC 461). Nonetheless, it was submitted that the applicant was precluded from challenging the order of questioning since counsel failed to bring a formal motion before the Board and the right to raise the issue on judicial review was thus waived (see Yassine v. Canada (Minister of Citizenship and Immigration) (1994), 172 N.R. 308, 27 Imm.L.R. (2d) 135 (F.C.A.)).
[22] The respondent submitted that the Board considered the Gender Guidelines and properly concluded that they would not have changed the outcome of the decision, since the applicant did not come to Canada for the reasons alleged. It was submitted that the Gender Guidelines were neither intended to cure deficiencies in a claim nor create new grounds for finding someone to be a victim of persecution (see Newton v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 294, 97 A.C.W.S. (3d) 736).
[23] The respondent noted that the Board has found that in view of adverse findings of credibility, it is unnecessary to consider the Guidelines. In Gunel v. Canada (Minister of Citizenship and Immigration) Docket IMM-8526-03, 6 October, 2004, the Court held that it was not necessary to consider the Guidelines when the applicant had failed to point to a finding made by the Board in contravention of them. It was submitted that this reasoning applies to the case at hand. The Guidelines state that a female refugee claimant must demonstrate that the harm feared amounts to persecution. It was submitted that the applicant failed to provide credible evidence of the accusations of child molestation allegedly made against her husband.
[24] The respondent submitted that the applicant failed to demonstrate that the Board’s questions unduly interfered with the proceeding or amounted to bias. The respondent noted that the Board is entitled to ask questions during the hearing (see Quiroa v. Canada (Minister of Citizenship and Immigration) (2005), 30 Admin.L.R. (4th) 316, 2005 FC 271). It was submitted that the transcript of the hearing did not support the allegation that the Board’s questioning was aggressive, but rather that questions were asked in order to clarify the applicant’s evasive answers (see Mahendran v. Canada (Minister of Employment and Immigration) (1991), 14 Imm. L. R. (2d) 30 , 134 N.R. 316 (F.C.A.)).
[25] In response to counsel’s allegation of bias, the Board explained that his tone reflected his frustration with the applicant’s confusing testimony and that the applicant did not appear to be intimidated by his tone. The respondent submitted that the Board asked questions in order to grant the applicant an opportunity to respond to concerns, and did not breach natural justice. The respondent submitted that the applicant failed to provide substantial grounds for establishing an apprehension of bias on the part of the Board (see R. v. R.D.S., [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193).
[26] The respondent submitted that unless the contrary is shown, the Board is presumed to have taken all of the evidence before it into consideration, whether or not this is indicated in its reasons (see Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635 (F.C.A.)). The respondent also submitted that the Board had valid reasons for refusing to consider the videotape evidence, as it had not been submitted to the Board and there were problems with its reliability and probative value.
Analysis and Decision
Standard of Review
[27] A potential breach of procedural fairness is reviewed upon a correctness standard. The Board’s credibility findings are reviewed on a standard of patent unreasonableness and are therefore accorded a high level of deference (see Juan v. Canada (Minister of Citizenship and Immigration), 2006 FC 809 at paragraph 2).
[28] Issue 1
Did the Board breach the principles of procedural fairness?
Aggressive Questioning
[29] The applicant submitted that the Board’s aggressive questioning was intimidating and resulted in an unfair hearing. The respondent submitted that the Board was entitled to ask questions and that its conduct did not give rise to a reasonable apprehension of bias nor breach natural justice. I have reviewed the hearing transcript and believe that at times, the Board’s manner of questioning was adversarial. For example, at pages 22 to 24 of the hearing transcript:
BY PRESIDING MEMBER (to person concerned)
. . .
- Madam, I’m talking about your son. I’m talking about the contrast between the pictures that have been created by different pieces of evidence here. Your oral testimony says that there was no marriage for all intent and purpose. For eighteen years you lived a lie.
…
- And then three years ago you accused him of being paedophile, and now he’s gonna travel on a vacation to Canada with you. It doesn’t make sense, madame.
A. I didn’t know that he was travelling. I didn’t know…
- Well, even if I would believe…
A. …till I got the passport.
Q. Even if I were to believe that, and I’m not sure I do, but even if I were to believe that, what possible logic is there in bringing you to Canada when he has no desire to be with you? He brought you in (inaudible) in Sri Lanka, why in hell would he be applying for a visitor visa for you to come to Canada?
A. I don’t know. I don’t know why, what’s the reason, and I never came with him to Canada. We never came together to Canada.
- That’s not the point.
…
Q. I’m asking you to tell me what happened in November 2004, madame?
…
A. He came. He came and he took my son and he gave the passport and he said you’re not coming back to Dubai. You go to Canada, and come back to Sri Lanka. That’s the time when he gave me the passport only I knew that I had a visa to Canada. Till then I didn’t know.
- Madame, I’m sorry, I don’t understand that. The man comes back. He gives you his passport, gives you your passport, says you’re not coming back to Dubai. Go to Canada and come back to Sri Lanka.
Q. What does that mean? What is all that about?
A. I don’t know what motive he had, he has.
- Madam, you’re gonna have to do better than this, because this is…you’re gonna have to give me some kind of an understanding because none of this makes sense to me. You can’t put everything off on your husband, madame. You’re gonna have to tell me what’s going on here.
And at page 27 of the transcript:
- Madam, this isn’t about the communication between you and your husband, as much as it’s just about you, I mean you do have some education, madame.
A. I do.
Q. And with the level of education. You have a secondary school education, why you would not ask the question why are you sending me to Canada, what am I supposed to do there? Why would I go there and come back. You’re telling me you didn’t even ask that question, madame. That doesn’t make sense to me.
A. I didn’t, yeah. I didn’t ask him like that.
Q. So you got on a plane and travelled ten-thousand miles around the world and you didn’t know why you were doing it?
A. My state of mind was like that with the stress and the sufferings I have gone through.
And again at page 35 of the transcript:
Q. What is it you fear is gonna happen to you in Sri Lanka?
A. I have no help there. I have no one to protect me. I need help and protection.
- Madam, that is not…that sounds more like somebody coaching you, telling you to answer. That sounds like a pat answer.
[30] I would note that counsel raised the issue of the Board’s intimidating tone of questioning during the hearing. The Board responded as follows (see pages 39 to 41 of the hearing transcript):
[…] I understand that some of my questions have been emphatic. You know, I’m,…well, it’s been a while since we’ve worked today, but I will remind you that I’m not a poker player, that if I feel it, I’ve got to share it because I want the claimant to have an opportunity to address it. The intention is not to intimidate anyone. The intention basically is to tell the claimant, look, I’ve got trouble with this. There’s conflicting evidence before me and you need to give me some kind of an explanation because this is clearly not a cut and dry case.
…
Okay. I didn’t pick up that she was too intimidated. She was frustrated because there were some answers that weren’t there and she probably doesn’t want to hear the panel member say this doesn’t make sense to me. I know that’s not a pleasant thing to hear. I wish I wasn’t saying it. I wish everything was perfectly clear. Makes my day a whole lot more enjoyable. But when it’s not, my preference. Some of my colleagues are a lot better or a lot different in their approach. They may not say what they’re thinking. I choose to put it out on the table. If I do it forcefully, then your perfectly right to remind me that I shouldn’t be doing it quite a forcefully. My preference would still be to put it on the table that there are issues that…need to be clarified.[…]
[31] In her affidavit, the applicant stated that she was intimidated by the Board’s aggressive tone of questioning. She stated that the Board member shouted loudly and frightened her. The applicant also provided affidavit evidence from Bahee Sriskanda, who listened to an audio recording of the hearing and observed the following:
As evident from the audio disk, the Board Member’s line of questioning was very aggressive, rude and sometimes outside the scope of inquiry. At some points during tape, he was shouting very loudly. It appeared that the Member had assumed an adversarial role and his tone was intimidating the claimant…
I am advised by counsel that at times the Member pushed himself toward the table from the chair, pushing his chest in front and fired questions in a loud voice. At these times, the claimant’s reply was hardly audible as she seemed to be frightened by the tone of the Member. Many times the claimant was sighing “Oh my God”.
[32] I would note that although the affidavit of Bahee Sriskanda does contain some opinions, it also contains descriptions of the Board member’s manner of questioning.
[33] The respondent urged upon me that the Board member’s questioning resulted from the vague and contradictory answers given by the applicant in response to questions. From a review of the transcript, I cannot agree.
[34] In my view, the type of questioning which occurred in this matter is similar to that discussed by Mr. Justice Campbell in Ritchie, above.
[35] I am of the opinion that the type of questioning used by the member in this case resulted in an unfair hearing and a denial of natural justice for the applicant.
[36] Consequently, the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
[37] Because of my finding on this issue, I need not deal with the other issues raised by the applicant.
[38] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[39] IT IS ORDERED that the application for judicial review is allowed, the decision of the Board is set aside and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, are set out in this section.
|
18.1 . . .
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law. |
18.1 . . .
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi. |
The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c.27 state as follows:
|
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 97.(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
153.(1) The Chairperson and members of the Refugee Protection Division, Refugee Appeal Division and Immigration Appeal Division
. . .
(b) shall swear the oath or give the solemn affirmation of office set out in the rules of the Board;
. . . |
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée: a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
153.(1) Pour ce qui est du président et des commissaires de la Section de la protection des réfugiés, de la Section d’appel des réfugiés et de la Section d’appel de l’immigration:
. . .
b) ils prêtent le serment professionnel ou la déclaration dont le texte figure aux règles de la Commission;
. . . |
The relevant provisions of Chairperson's Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division state as follows:
The relevant provisions of the Refugee Protection Division Rules, S.O.R./2002-228 state as follows:
|
43. Unless these Rules provide otherwise
(a) a party who wants the Division to make a decision on any matter in a proceeding, including the procedure to be followed, must make an application to the Division under rule 44;
(b) a party who wants to respond to the application must respond under rule 45; and
(c) a party who wants to reply to a response must reply under rule 46.
44.(1) Unless these Rules provide otherwise, an application must be made in writing and without delay. The Division may allow a party to make an application orally at a proceeding if the party with reasonable effort could not have made a written application before the proceeding. (2) Unless these Rules provide otherwise, in a written application the party must
(a) state what decision the party wants the Division to make;
(b) give reasons why the Division should make that decision; and
(c) if there is another party and the views of that party are known, state whether the other party agrees to the application.
(3) Unless these Rules provide otherwise, any evidence that the party wants the Division to consider with a written application must be given in an affidavit or statutory declaration that accompanies the application.
(4) A party who makes a written application must provide
(a) to any other party, a copy of the application and any affidavit or statutory declaration; and
(b) to the Division, the original application and any affidavit or statutory declaration, together with a written statement of how and when the party provided the copy to any other party.
|
43. Sauf indication contraire des présentes règles:
a) la partie qui veut que la Section statue sur toute question soulevée dans le cadre d'une procédure, notamment sur le déroulement de celle-ci, lui en fait la demande selon la règle 44;
b) celle qui veut répondre à la demande le fait selon la règle 45;
c) celle qui veut répliquer à la réponse le fait selon la règle 46.
44.(1) Sauf indication contraire des présentes règles, toute demande est faite sans délai par écrit. La Section peut permettre que la demande soit faite oralement pendant une procédure si la partie n'aurait pu, malgré des efforts raisonnables, le faire par écrit avant la procédure.
(2) Dans sa demande écrite, sauf indication contraire des présentes règles, la partie:
a) énonce la décision recherchée;
b) énonce les raisons pour lesquelles la Section devrait rendre cette décision;
c) indique si l'autre partie, le cas échéant, consent à la demande, dans le cas où elle connaît l'opinion de cette autre partie.
(3) Sauf indication contraire des présentes règles, la partie énonce dans un affidavit ou une déclaration solennelle qu'elle joint à sa demande écrite tout élément de preuve qu'elle veut soumettre à l'examen de la Section. (4) La partie qui fait une demande par écrit transmet:
a) à l'autre partie, le cas échéant, une copie de la demande et, selon le cas, de l'affidavit ou de la déclaration solennelle;
b) à la Section, l'original de la demande et, selon le cas, de l'affidavit ou de la déclaration solennelle, ainsi qu'une déclaration écrite indiquant à quel moment et de quelle façon une copie de ces documents a été transmise à l'autre partie, le cas échéant.
|
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-729-06
STYLE OF CAUSE: NALINI DEVIKARA SWAMINATHAN
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 16, 2007
APPEARANCES:
Mr. Kumar S. Sriskanda FOR APPLICANT
Ms. Anshumala Juyal FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Kumar S. Sriskanda
Scarborough, Ontario FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT