Ottawa, Ontario, February 26, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
OFELIA ROSA GOMEZ POSADA de UPEGUI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Ofelia Rosa Gomez de Upegui is a 73 year old citizen of Colombia who worked at a retirement home in Medellin, Colombia as a nurse/caregiver. She testified before the Refugee Protection Division of the Immigration and Refugee Board (Board) that she fled Colombia as a result of her fear of the Fuerzas Armadas Revolucionarias de Columbia (FARC). On one occasion, a gentleman identified himself as a FARC guerrilla and demanded that she provide the FARC with a list of the residents of the retirement home. On a second occasion the same man, along with two others, approached Ms. Gomez, advising that it was time for her to cooperate with the FARC by providing the list of residents as well as the electronic door code for the retirement home. She was warned that if she did anything foolish she would be killed.
[2] While the Board was satisfied that Ms. Gomez is a citizen of Columbia, it did not find her testimony to be credible. Throughout its reasons, the Board referred to Ms. Gomez as being confused and frequently readjusting her testimony. Accordingly, Ms. Gomez’s claim to refugee protection was dismissed.
[3] The Board’s credibility findings can only be interfered with if they are patently unreasonable. For the following reasons I have determined that a number of the Board’s credibility findings were patently unreasonable. In view of the number of errors that go to the heart of Ms. Gomez’s claim and the Board’s conclusion that Ms. Gomez’s testimony was adjusted because she was incredible, this application for judicial review is allowed.
[4] The following are examples of credibility findings that are patently unreasonable:
1. The Board stated that Ms. Gomez could not give the address of the retirement home where she had worked. In the Board’s words, “She said the home was situated in the neighborhood of Buenos Aires but could not give the address.” In fact, the applicant testified that the retirement home was on a street “called Ayacoucho (phonetic) and it ended in a part called Las Mellizas” [page 93 tribunal record].
2. The Board drew an adverse inference from the fact that initially Ms. Gomez said her supervisor was an administrator who was a nurse, but later Ms. Gomez said her supervisor was a manager and not a nurse. This inference is patently unreasonable because when Ms. Gomez’s testimony is read in context, nothing she said precluded the supervisor from being both a nurse and a manager.
3. The Board gave no weight to a letter confirming Ms. Gomez’s work experience because the Board found that it contradicted Ms. Gomez’s testimony that she believed that the retirement home had closed as a result of actions of the FARC. The letter simply stated that the new owners of the building did not know why the retirement home had closed. This does not contradict Ms. Gomez’s evidence.
[5] In its reasons, the Board referred to Ms. Gomez as being “visibly nervous” while testifying and it “found her attitude disconcerting.” A review of the transcript shows that Ms. Gomez was confused and agitated while giving her testimony. The hearing was not assisted by the fact that it was held by videoconference. Nor was the hearing assisted by the very frequent interjections of the interpreter who, in addition to seeking various clarifications from counsel and the presiding member, thought it necessary to provide a running commentary to the presiding member, noting at one point that Ms. Gomez was crying and at another point volunteering:
I must say for the record, Madame Member, that claimant at times is doing faces as she assumes I don’t know if it’s the interpreter or all of us that she would understand what she means without herself even saying. I don’t know how to put it exactly, but I should, I think say that for the record. Even I sense some surprise on the part of claimant that she’s being asked questions as if things should be so evident that there should be no questions. Something like that, Madame Member.
[6] In the circumstances of this case, in my view, it was unreasonable for the Board, for the reasons it gave, to conclude that Ms. Gomez’s testimony was adjusted because she was lying. It was equally likely that factors such as Ms. Gomez’s nervousness, her age, the dynamic of the hearing, the presence of the interpreter and the frequent interventions by both the presiding member and the interpreter while Ms. Gomez was being questioned by her lawyer, led to her confused, often disjointed and sometimes evolving answers.
[7] For these reasons, the application for judicial review will be allowed. Counsel posed no question for certification and I agree that no question arises on this record.
[8] In the very unique and special circumstances of this case, the Court requests that the Board make every effort to see that the redetermination hearing is not held by video conference.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division dated February 20, 2006 is hereby set aside.
2. This matter is remitted for redetermination by a differently constituted panel of the Refugee Protection Division that has never presided over a hearing in respect of the applicant.
3. In the very unique and special circumstances of this case, the Court requests that the Board make every effort to see that the redetermination hearing is not held by video conference.
4. In view of the errors contained therein, the reasons given by the Refugee Protection Division in support of its decision of February 20, 2006 are not to be provided to the panel that hears the redetermination of this claim.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1372-06
STYLE OF CAUSE: OFELIA ROSA GOMEZ POSADA de UPEGUI
v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 31, 2007
APPEARANCES:
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Mr. Terry Guerriero
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Ms. Vanita Goela
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SOLICITORS OF RECORD:
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Terry Guerriero Barrister & Solicitor London, Ontario
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John H. Simms, Q.C, Deputy Attorney General of Canada
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