Digests

Duale v. Canada (Minister of Citizenship and Immigration)

IMM-6712-02

2004 FC 150, Dawson J.

30/1/04

11 pp.

Judicial review of Refugee Protection Division's (RPD) decision denying applicant's Convention refugee claim--In Stumf v. Canada (Minister of Citizenship and Immigration), 2002 FCA 148, Federal Court of Appeal holding former Immigration Act, s. 69(4) imposing obligation on Immigration and Refugee Board to designate representative for any refugee claimant meeting statutory criteria as soon as aware of facts revealing necessity for appointment of designated representative--Whether Stumf principles applicable to Immigration and Refugee Protection Act (Act)--Act, s. 167(2) together with Refugee Protection Division Rules (Rules), s. 15(1), clearly reflect obligation to designate representative for minor claimant or claimant otherwise unable to appreciate nature of proceedings at earliest point in time at which RPD becomes aware of facts which reveal need for designated representative--Further, need for designation of representative applies to entirety of proceedings in respect of refugee claim and not just to actual hearing of claim before RPD--Applicant 16 years old when claimed refugee status-- Went through each stage of proceeding, except for actual hearing, without assistance designated representative intended to provide--In particular, applicant did not have benefit of any assistance from designated representative in gathering evidence to support claim--Contrary to intent and scheme of Act and Rules, and contrary to Guidelines concerning Child Refugee Claimants: Procedural and Evidentiary Issues (Guidelines)--As to effect of failure to comply with legislation and Guidelines upon claim, RPD commenting on lack of identity documents, finding story not credible--In light of such findings, failure to appoint designated representa-tive could have had adverse effect on outcome of claim-- Designated representative would have been responsible for assisting applicant to obtain evidence--Evidence supporting inference evidence-gathering process not what it could have been--As Sharlow J. said in Stumf, "the designation of a representative in this case could have affected the outcome"-- While applicant not minor at time of hearing, he turned 18 only nine days before hearing and was 16 when preparing Personal Information File (PIF)--Reasons of RPD not expressly referring to applicant's age, notwithstanding particularly minute examination of applicant's PIF--Failure to expressly acknowledge applicant's age and impact age may have had on completion of PIF, his testimony and assessment of testimony, while perhaps by itself not reviewable error, does not enhance credibility findings--Application allowed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 167(2)--Refugee Protection Division Rules, SOR/2002-228, s. 15(1).