Date:
20060727
Docket:
IMM-7630-05
Citation:
2006 FC 927
Ottawa,
Ontario, July 27, 2006
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
EDISON COLORADO TORRES
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HARRINGTON J.
[1]
Edison
Colorado Torres fled from Columbia because he feared persecution
from a group of paramilitary forces. At a private party, which he attended with
his two cousins, he defended his cousin’s girlfriend when a member of the
paramilitary forces treated her with disrespect.
[2]
The next
day, a group of paramilitaries showed up at the applicant’s residence. They
told his mother that they wanted to kill not only him, but also his cousins.
The paramilitaries also went to the home of one of his cousins to make death threats
against him as well.
[3]
Colorado
Torres and his two cousins left Columbia
for Venezuela. They lived there for
approximately four months. The applicant subsequently stowed away on ship bound
for the USA. His cousins returned to Columbia and were apparently killed by
paramilitaries. Colorado Torres remained in the USA for two years. His mother advised him
that the paramilitaries were still looking for him. He then left the USA for Canada on November 30, 2004. He claimed refugee
protection on the same day.
[4]
The Board
determined that the applicant was not a member of a social group within the
meaning of the Convention but that he had problems with personal vendettas.
[5]
At the
hearing, there was considerable confusion caused by, on the one hand, the
applicant and, on the other, by the Board’s questions, concerning the identity
of the persons the applicant feared, that is, the paramilitaries, the Fuerzas
Armadas Revolucionarias de Colombia (FARC) or “guerrillas”. In any event,
the Board concluded that the applicant’s behaviour was inconsistent with that
of a person who fears persecution. He remained in Venezuela for approximately four months and in the
United States for more than two years without
having claimed protection of any kind. The applicant explained that he did not
claim protection in Venezuela, which is a signatory to the United
Nations Convention Relating to the Status of Refugees, because he entered
this country without identification papers and was afraid of being removed. The
Board was of the view that the applicant’s explanations were unacceptable.
ISSUES
[6]
The issues
are as follows:
- What is the standard of review
applicable in this case?
- Is the Board’s decision patently
unreasonable?
- Was there a breach of the principles
of natural justice at the applicant’s hearing because of the application
of Guideline 7, which provides that, at a hearing, counsel for the claimant
will generally question the claimant last?
ANALYSIS
Standard of review
[7]
It is
trite law that the standard of review applicable to matters of credibility is
that of patent unreasonableness: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100
at paragraph 38; Aguebor v. Minister of Employment and Immigration (1993),
160 N.R. 315 at paragraph 4.
Credibility
[8]
Although
there is some confusion about the precise identity of the group the applicant
feared, about his knowledge concerning this group and whether with his nine years
of schooling he should be expected to know all the distinctions between the
FARC, the paramilitaries and the “guerrillas”, the Board’s conclusion to the
effect that the applicant did not have any subjective fear is unimpeachable. He
had ample opportunity to claim protection in Venezuela and in the United States. He did not offer any objective reason
for believing that he would be pursued in Venezuela because of the country’s proximity to Columbia, not to mention his stay in
the United States, which is much farther away. The
Board was entitled to reject his explanation to the effect that he was afraid
of claiming protection in the United
States.
Guideline 7
[9]
In the
recent decision in Hossain v. The Minister of Citizenship and Immigration,
2006 FC 892, I summarized the current situation of Guideline 7, as
well as the recent case law in which it has been considered. In short, in Thamotharem
v. Canada, 2006 FC 16, [2006] F.C.J. No. 8 (QL), Mr. Justice Blanchard
stated that, in certain circumstances, the reverse order of questioning and
more specifically Guideline 7 had the effect of hindering the Board’s
discretionary power and was an infringement of the principles of natural
justice. After Thamotharem, supra, Mr. Justice Mosely
heard several applications for judicial review concerning Guideline 7. In an
order rendered in Benitez v. Canada (Minister of Citizenship and
Immigration),
2006 FC 461, [2006] F.C.J. No. 631 (QL), he concluded that there
was no infringement of natural justice if counsel for the claimant does not
have the opportunity to ask questions first.
[10]
The
Minister submits that the applicant waived the opportunity to contest the order
of examination, since the only objections made came after the hearing in the
application for leave and the application for judicial review.
[11]
In Benitez,
supra, Mosley J. wrote the following at paragraph 237:
The common law principle of waiver
requires that an applicant must raise an allegation of bias or a violation of
natural justice before the tribunal at the earliest practical opportunity. If
counsel were of the view that the application of Guideline 7 in a particular
case would result in a denial of their client's right to a fair hearing, the
earliest practical opportunity to raise an objection and to seek an exception
from the standard order of questioning would have been in advance of each
scheduled hearing, in accordance with Rules 43 and 44, or orally, at the
hearing itself. A failure to object at the hearing must be taken as an
implied waiver of any perceived unfairness resulting from the application of
the Guideline itself. If the objection was made in a timely manner at or before
the hearing, the applicants are entitled to raise it as a ground for judicial
review in their applications for leave. If the applicants failed to cite a
denial of procedural fairness in their applications for leave, judicial review
of the applications should be confined to the grounds on which leave was
sought.
[Emphasis added]
[12]
In
deciding this case, it is not necessary for me to identify the precise moment
when it became too late to complain about the order of questioning specified in
Guideline 7 and request that counsel for the claimant be the first to ask questions.
It suffices to say that I agree with Mosley J. that the failure to raise
this issue within the proper time limit or before the hearing constituted a waiver.
For these reasons, the application for judicial review must be dismissed.
QUESTION CERTIFIED
[13]
The
applicant suggested five questions to be certified. I note that they are
similar if not identical to the questions certified by Mosley J. in Benitez,
supra, and by Blanchard J. in Thamotharem, supra. It
is perfectly permissible to certify the same questions that were certified in
preceding cases. Having said this, taking into consideration my conclusion to
the effect that the failure to raise the issue of Guideline 7 at or before
the hearing constituted a waiver of the right to raise it now, I will not
certify the suggested questions.
JUDGMENT
THE COURT ORDERS THAT:
1.
The
application for judicial review of the IRB’s decision dated November 30,
2005, be dismissed.
2.
No
question will be certified.
“Sean
Harrington”
Certified
true translation
Michael
Palles
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