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.

Davis—failure to assess hardship, ignoring psychological evidence

Davis v. Canada (Citizenship and Immigration), 2011 FC 97 (CanLII)

Judge: Justice Mactavish

Date heard: January 26, 2011

Date decided: January 27, 2011

Counsel for Davis: Michael Crane

Counsel for Minister: Laoura Christodoulides

Place of Hearing: Toronto, Ontario

The Applicant was a failed refugee claimant from St. Vincent; the RPD did not take issue with the history she presented of “significant physical and sexual abuse as a young child” (paras. 1-4). Her H&C/PRRA, which included psychological reports, argued that she would suffer a deterioration of her mental health if removed and if separated from her father who lives in Canada.

A previous application had been denied, and that decision was overturned on judicial review in 2009 (paras. 5-7). That decision was overturned because the officer had relied on a WHO document not put to the Applicant.

In this second decision, the new officer “committed precisely the same error as the first Officer” (para. 9). The second officer relied on a different report, this one from the Pan American Health Organization, which was sufficiently detailed and technical that it ought to have been put to the Applicant (paras. 8-10). This was implicitly contrasted with human rights reports which are general and do not need to be put to the applicant.

Furthermore, the Applicant had put evidence before the PRRA officer which was both more recent and more direct, as it came from the St. Vincent government (paras. 10-14).

Furthermore, the officer ignored evidence of the Applicant’s emotional dependence on her father, drawing conclusions in direct opposition to the psychological evidence (paras. 15-17).

Finally, the officer erred in focusing on the availability of mental health care in St. Vincent, without assessing “whether requiring Ms. Davis to return to St. Vincent to access that care would amount to undue, undeserved or disproportionate hardship.” (paras. 18-19)

JUDICIAL REVIEW ALLOWED

Mings-Edwards—PRRA officer ignored one of two grounds of risk presented

Mings-Edwards v. Canada (Citizenship and Immigration), 2011 FC 90(CanLII)

Mings-Edwards v. Canada (Citizenship and Immigration), 2011 FC 91 (CanLII)

Judge: Justice Mactavish

Date heard: Januray 25, 2011

Date decided: January 26, 2011

Counsel for Mings-Edwards: Aadil Mangalji

Counsel for Minister: Kareena Wilding

Place of Hearing: Toronto, Ontario

The Applicant filed a pre-removal risk assessment on the basis of two grounds: fear of her abusive spouse, and her status as an HIV+ woman (para. 1).

The PRRA officer focused on the availability of state protection in Jamaica; Justice Mactavish found that this unreasonably ignored the second ground (para. 2).

The PRRA officer disregarded the single personal document attesting to the difficulty the Applicant would face as an HIV+ woman in Jamaica, stating that it was uncorroborated and speculative; he ignored the large volume of general country conditions evidence presented which corroborated her evidence (paras. 3-7). The officer wrongly disregarded this country conditions evidence as “generalized” (para. 7). The officer failed to address whether the discrimination described amounts to persecution or cruel and unusual treatment or punishment (para. 8).

Furthermore, the officer stated that there was state protection in Jamaica, but the entire analysis of state protection referred to the domestic violence ground and not the HIV status ground (para. 9).

JUDICIAL REVIEW ALLOWED