Date: 20001027
Docket: IMM-4571-99
Ottawa, Ontario, the 27th day of October, 2000
Present: The Honourable Mr. Justice Pinard
Between:
AYONDU CHIEBUKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision rendered on September 3, 1999 by the Refugee Division of the Immigration and Refugee Board, ruling that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2, is set aside. The matter is consequently sent back to this tribunal for reconsideration by a differently constituted panel.
| J. |
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001027
Docket: IMM-4571-99
Between:
AYONDU CHIEBUKA
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 rendered on September 3, 1999 by the Refugee Division of the Immigration and Refugee Board, ruling that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is a citizen of Nigeria. She left her country on November 25, 1995, stopping in Cameroon, Ghana and the United States before arriving on March 3, 1996 in Canada, where she claimed refugee status four days later. In Nigeria, the applicant was a leading coordinator of the Movement of the Survival of the Ogoni People (MOSOP). In November, 1990, she was arrested, tortured and raped. She was also arrested and held several times in 1993. In May 1994, an arrest warrant was issued in the name of the applicant in her capacity as an executive member of the MOSOP. She went into hiding until November, 1995, when she went to Cameroon.
[3] The decision in question is based on the applicant's lack of credibility, the panel having found that the claimant had not testified directly and frankly, and in particular, the evasive nature of her testimony.
[4] In particular, the applicant criticizes one of the two members of the Refugee Division for the following comments he made during the hearing:
| BY PRESIDING MEMBER (to person concerned) |
| Q. Madame, let me tell you, if I was raped I would not forget. If I was raped twice, I would not forget. And if I was raped... |
| A. I neve... |
| - ... let me continue, madame. |
| A. Okay. |
| - ... I would not be reacting. We see people here who come who were raped. Some of them they have two different attitudes. Some of them are not ready to speak about that at all. This is very painful for them to speak about that. Some of them they just try to forget about it. This is known by psychologists, anyway I am not. Other people speak about that with a lot of emotion. You didn't speak about your alleged rape with emotion at all. First of all. |
| Second thing, you didn't mention in your PIF that you were raped twice. How come one person who was raped could forget about another rape, because it wasn't the biggest. Any rape is tremendous crime, you could not forget about that. |
| A. I didn't forget about it. |
| Q. But you didn't mention it and you didn't... |
| A. I did not forget about it. It's like you said, it's something I don't want to dwell on. I don't want to dwell on it, you know. |
[5] The member's remarks are in my opinion not only sexist, they demonstrate an unacceptable lack of sensitivity and compassion. It ought to be noted that the other panel member formally dissociated himself from these particular comments, although he said he otherwise agreed with his colleague.
[6] For my part, I consider the comments in question, considered in the context reflected by the transcript of the Refugee Division hearing, sufficiently serious to give rise to a reasonable apprehension of bias and to undermine the decision as a whole. "It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear." These words [by Cory J.], quoted by Bastarache J. in Arsenault-Cameron v. P.E.I., [1999] 3 S.C.R. 851, at page 853, in relation to the applicable test for apprehension of bias, seem to me highly relevant to the case at bar.
[7] Accordingly, I think I am justified in intervening to uphold the application for judicial review, quash the decision in question and send the matter back to the Refugee Division for reconsideration by a differently constituted panel.
| J. |
OTTAWA, ONTARIO
October 27, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-4571-99 |
| STYLE: AYONDU CHIEBUKA v. MCI |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: September 12, 2000 |
REASONS FOR ORDER OF PINARD J.
DATED: October 27, 2000
APPEARANCES:
Jean-François Fiset FOR THE APPLICANT
Marie-Claude Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean-François Fiset FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada