Monday, December 19, 2016

Varga v. Canada (Citizenship and Immigration), 2013 FC 494

Varga v. Canada (Citizenship and Immigration), 2013 FC 494 

May 10, 2013, Justice Rennie

This case includes helpful analysis on two main points: ignoring grounds (including standard of review) and dealing with a hostile decision maker. There is also a comment on when it is innappropriate to impugn a failure to produce corroborating evidence.

Ignoring Grounds

The Applicants were a Roma woman and children. Their evidence including mention of domestic problems. Rennie J. found the RPD ought to have considered domestic violence as a ground:
[5] Refugee claims involve fundamental human rights. Accordingly, it is critical that the Board consider any ground raised by the evidence even if not specifically identified by the claimant: Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689; Viafara v. Canada (Minister of Citizenship and Immigration), 2006 FC 1526 (CanLII), para. 13. It is, in most circumstances, a serious and potentially fatal error to ignore part of a refugee claim: Mersini v. Canada (Minister of Citizenship and Immigration), 2004 FC 1088 (CanLII), para. 6.
[6] The failure of the Board to address a ground of persecution, raised on the face of the record, is a breach of procedural fairness, reviewable on a correctness standard. Reasonableness and deference can have no role when there is no assessment of the evidence.

Hostile Decision Maker

Rennie J. also commented:
[11] Finally, while the Board must test a claimant’s credibility, and do so at times vigorously, this must be done with sensitivity, professionalism and an open mind. In this case, the Board member’s manner of questioning fell far short of this standard.
[13] ...A Board member may not “egg a witness on,” or pepper his questioning with sarcastic remarks. 
In the decision, examples are given (at paras. 12-13) of challenging both the claimant and her children on their answers in a belligerent manner, e.g. "It’s not so easy now." and "It’s not so funny now, is it?  I didn’t think so." The Member also questioned the claimant aggressively, asking her irrelevant questions (e.g. did he look Roma), not letting her answer and challenging her answers before she had completed them (paras. 14-20).

Corroborating Evidence

The decision also notes that it is unreasonable to fault a claimant or applicant for a failure to produce corroborating documents where the evidence indicates that none would exist:

[9] Portions of the reasons given in support of the refusal have no relationship to the evidence. For example, the Board faulted the applicant for not producing supporting documentation to corroborate her attempts to seek state protection. This is difficult to understand in light of the applicant’s evidence that she did not seek protection. The Board stated that supporting evidence was required “[i]n light of the finding that many aspects of the applicant’s claim were not credible.” However, the Board did not indicate that it disbelieved any aspect of the applicant’s testimony. 
[10] The Board also stated that the applicant “had sufficient time to obtain the documents needed to substantiate her claim,” referring to the lack of police reports. The applicant did not go to the police and obviously could not obtain non-existent police reports.

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