Toronto, Ontario, February 16, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ABIGAIL ARIRI (Litigation Guardian)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application is brought by a 16 year old citizen of Nigeria whose claim for protection on the ground of gender persecution is based on a detailed history of physical, emotional and sexual abuse at the hands of her uncle.
[2] In its decision, the Refugee Protection Division ("RPD") states a belief that the Applicant's claim is a fraud. A critical element of the oral reasons given immediately after the hearing is that "there was no evidence of the existence of this uncle" (Decision, p.3). In the reasons, the RPD describes how the uncle's existence could have been proved during the course of the hearing, including from a letter from a pastor who helped the Applicant in Nigeria. The RPD found that the fact that no letter from the pastor was produced "undermines the overall credibility of the claimant" (Decision, p.3).
[3] I find two fundamental errors in the decision under review. First, clearly, the Applicant testified to the existence of the uncle. There are no clear reasons provided in the decision for why the Applicant's evidence with respect to the abuse she suffered was not accepted as credible. And, second, there was no notice given that corroborating evidence would be required.
[4] A perusal of the transcript discloses that fairly early on in the hearing the RPD exposed suspicion about the existence of the uncle (Tribunal Record, p.180), and then proceeded to question the failure to submit the pastor's letter. Having notice of this issue, Counsel for the Applicant expressed in oral argument that, while the issue was not known prior to the commencement of the hearing, if the pastor's letter was considered important it could be produced, and a request was made for an adjournment to produce the letter (Tribunal Record, p.225). This request was not acknowledged by the RPD at that time, or in the reasons provided.
[5] I find that the failure of the RPD to give the Applicant an opportunity to produce the corroborating evidence constitutes a breach of due process.
[6] As a result, I find that the RPD's decision is patently unreasonable.
ORDER
Accordingly, I set the RPD's decision aside and refer the matter back to a differently constituted panel for re-determination.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1356-05
STYLE OF CAUSE: TUOYO ARIRI (a minor) and
ABIGAIL ARIRI (Litigation Guardian)
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 16, 2006
APPEARANCES:
Kingsley Jesuorobo FOR THE APPLICANT
Kristina Dragaitis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H Sims, Q.C
Deputy Attorney General of Canada FOR THE RESPONDENT