Date: 20060925
Docket: IMM-667-06
Citation: 2006 FC 1111
BETWEEN:
SOUDY BAKARY
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PINARD J.
[1]
This is an application for judicial review of a decision by the Refugee
Protection Division of the Immigration and Refugee Board (IRB) dated January
12, 2006, that the applicant is neither a “Convention refugee” nor a “person in
need of protection” under the definitions in sections 96 and 97,
respectively, of the Immigration and Refugee Protection Act, S.C. (2001,
c. 27).
[2]
Soudy Bakary (the applicant), a citizen of the Republic of Chad, fears
returning to his country because his family is targeted by those in power and
also because of his political activity.
[3]
The IRB found that the applicant was not credible and that his testimony
was not trustworthy.
[4]
As one of his preliminary objections, the respondent first maintains
that the affidavit filed by the applicant does not comply with paragraph 10(2)(d)
of the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22, as amended, which reads as follows:
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10. (2) The
applicant shall serve on every respondent who has filed and served a notice
of appearance, a record containing the following, on consecutively numbered
pages, and in the following order
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10. (2) Le demandeur signifie à chacun des
défendeurs qui a déposé et signifié un avis de comparution un dossier composé
des pièces suivantes, disposées dans l’ordre suivant sur des pages numérotées
consécutivement:
|
|
. . .
|
[…]
|
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(d) one or more supporting affidavits verifying the facts
relied on by the applicant in support of the application, and
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d) un ou plusieurs affidavits établissant
les faits invoqués à l’appui de sa demande,
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|
. . .
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[…]
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and file it, together with proof of
service.
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et
le dépose avec la preuve de la signification.
|
[5]
The respondent submits that paragraphs
8, 17, 48 and 51 of the applicant’s affidavit on his application for leave
consist of conclusions and arguments as to the merits of the IRB’s decision
instead of facts and, accordingly, these statements are inadmissible. I agree
with the respondent.
[6]
Next, the respondent argues that the Court should disregard exhibit B to
the applicant’s affidavit because this document was not in evidence before the
IRB. In fact, it is an affidavit signed by the applicant’s brother and is
clearly dated after the decision by the IRB. It is well established that fresh
evidence that was not before the IRB or did not exist at the time of its
decision must be rejected by this Court (Asafov v. Minister of Employment
and Immigration, [1994] F.C.J. No. 713 (F.C.T.D.) (QL) and Hermas v.
Minister of Citizenship and Immigration, 2005 FC 1649). Reference should
also be made to what the Court stated in 594872 Ontario Inc. v. Canada,
[1992] F.C.J. No. 253 (F.C.T.D.) (QL):
In any event, I find counsel for the Respondent's
argument persuasive. The Sebold affidavit which is produced as an
attachment to Mr. Kimball's affidavit has the same status as any other
attachment to an affidavit. It does not have an independent status
as an affidavit served in these proceedings on which cross-examination pursuant
to Rule 332.1 applies.
[7]
Moreover, in Zaman v. Minister
of Citizenship and Immigration, [1997] F.C.J. No. 646 (F.C.T.D.)
(QL), my colleague, Justice Gibson, cited 594872 Ontario Inc. and
then stated:
The applicant's affidavit is not "purely
formal" and is sworn by a person having extensive knowledge of the issues
in this matter. Thus, his affidavit cannot be said to have
"little or no weight" on the other hand, the applicant has
effectively shielded the affiants of the two affidavits annexed to his
affidavit from cross-examination. In the circumstances, I am not
prepared to accord those affidavits any weight in this matter.
[8]
In my view, the result in this
case should be the same as in Zaman, and the affidavit of Bello Bakary,
which is an exhibit to an affidavit, should be given no weight.
[9]
As for the respondent’s
submissions, he first criticizes the IRB for failing to analyze the criterion
of membership in a particular social group, i.e. the family. According to him,
the IRB’s analysis did not dispute that he is a member of the Bakary family
which, according to the evidence, has suffered persecution: several members of
his family have had to seek refuge abroad, and a number of them have been
received in Canada as refugees.
[10]
In my view, however, a simple
reading of the decision discloses that the IRB clearly considered and analyzed
the applicant’s claim on the basis of his alleged membership in the particular
social class of his family. Moreover, a large number of cases decided by this
Court have established that the IRB is not bound by the result in another
claim, even if the claim involves a relative, because refugee status is determined
on a case by case basis, and because it is possible that the other decision was
incorrect (see, inter alia, Rahmatizadeh v Minister of Employment and
Immigration, [1994] F.C.J. No. 578 (F.C.T.D.) (QL); Museghe v. Minister
of Citizenship and Immigration, 2001 FCT 1117; Singh v. Minister of
Citizenship and Immigration, 2002 FCT 1013; Matlija v. Minister of
Citizenship and Immigration, 2003 FCT 704; Gjergo v. Minister of
Citizenship and Immigration, 2004 FC 303 and Bromberg v. Minister of
Citizenship and Immigration, 2002 FCT 939). Therefore, in my view, the IRB
did not fail to consider the criterion of membership in the particular social
group of his family.
[11]
The applicant also takes issue
with the assessment of the facts by the IRB. After reviewing the evidence, I am
of the view that the panel provided clear and unequivocal reasons regarding the
lack of credibility of the applicant’s story and the rejection of his claim for
refugee protection. Generally, the decision of the IRB is based on the evidence
adduced, draws reasonable inferences from it and respects the relevant legal
principles. None of the applicant’s submissions establish that the IRB made a
patently unreasonable error, or made erroneous or arbitrary findings of fact or
disregarded the evidence before it. Therefore, the intervention of this Court
is not warranted.
[12]
Accordingly, the application for
judicial review is dismissed.
Ottawa, Ontario
September 25, 2006
Certified true translation
Mary Jo Egan, LLB
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