Docket: IMM-6992-10
Citation: 2011 FC 849
Ottawa, Ontario, July 8,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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YOANY ALEXANDER ROJAS
YOWELL MARIETY ZARATE GRANDA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants seek an order setting aside a November 3, 2010 decision of the
Refugee Protection Division of the Immigration Refugee Board of Canada (the
Board), which found the applicants to be neither Convention refugees nor
persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA).
For the reasons that follow, the application for judicial review is granted.
[2]
It is
well established that findings of fact and findings of credibility are the
domain of administrative tribunals. It is the tribunal members who hear
the witnesses and observe their demeanor when testifying. They gauge
their reaction to questions on cross-examination and they hear their
explanations when confronted with implausibilities or inconsistencies.
These factors constitute, in part, the rationale for a reasonableness standard
in respect of judicial review of administrative bodies and the deference to be
accorded their decisions in these areas: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. The threshold
that must be crossed before a court will interfere is thus high.
[3]
In
this case, the reasons for the decision do not meet the threshold. The Board
found the applicants not to be credible. The Board based this
finding in part, on the "utter lack of corroborating documents”.
There was evidence on the record of corroborating documents, including a declaration
from the principal applicant’s (Yoany Alexander Rojas – “the applicant”)
employer, his mother, a friend and his brother. While they may
be given lesser weight given their provenance, they were nonetheless
corroborative of the applicant’s testimony. The Board does not specify what
corroborating evidence was missing, nor did it confront the applicant as to
concerns with respect to the content of the corroborative evidence (raising a
concern of procedural fairness to which I will turn shortly) or at any time ask
for an explanation as to why certain documents which the Board might consider
to be corroborative were not produced.
[4]
It
is useful to contrast what transpired in this case with the situation
considered by Justice Roger Hughes in Reyna Flores v Canada (Citizenship and
Immigration), 2010 FC 874 where he wrote:
As to the first matter raised, confronting the applicant, I
have reviewed the Tribunal Record including in particular the transcript of the
hearing. I find that the applicant was given ample opportunity to explain his
testimony and was questioned by the Member on the relevant points of his
evidence such that an ample opportunity was given for any explanation. As to
corroboration, it is argued that, particularly since the new Act in 2001,
corroboration may not be essential however where there is doubt as to the
evidence given it is not improper for the Board to ask for corroboration or to
take lack of corroboration into account where assessing credibility. I find
that the Board made no reviewable error in handling the evidence as it did and
that the conclusions which it reached were reasonable.
[5]
The
same cannot be said here. There was little examination, if any on the
provenance of the documents, the applicant’s involvement in their preparation
or the implications of their content.
[6]
Negative
inferences cannot be drawn solely from the failure to produce corroborating
documents: Amarapala v Canada (Minister of Citizenship and Immigration), 2004 FC 12. While
it is possible that the Board sought to frame its analysis within the exception
to this principle, namely that a failure to produce corroborative documentation
is a proper consideration where it does not accept the applicant’s
explanation for failing to produce that evidence when it would reasonably be expected
to be available. If that was the case, precision was required as to
the nature of the documentation expected and a finding made to that effect.
[7]
The Board
also rejected a document, submitted by the female applicant,
emanating from the Attorney General’s office as a document of convenience
and concluded that it was a fabrication “to simply further her claim
but not based on truth.” These concerns were not put to the
witness, which again raises a concern as to procedural fairness. It
is however, sufficient for the purposes of these reasons to note that that
there is nothing in the record, nor on the face of the document that would give
rise to a doubt as to its integrity. Nor was any explanation given as to how
the conclusion was reached that the documentation was a fabrication and
that, in consequence, the female applicant was not credible.
[8]
Finally,
the Board concluded that the applicant was not credible because “nothing
had happened to the applicant’s family in Columbia since his departure.” This is not in
accordance with the evidence. The applicant testified that his mother had
been contacted and threatened while in Medellín. Again, as this finding
formed, in part, the foundation for the determination that the applicant was
not credible, the finding on credibility is not supported by the evidence.
[9]
This
application for judicial review is granted and the matter remitted to a
differently constituted panel of the Board’s Refugee Protection Division.
[10]
There
is no question to be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The
matter is referred back to the Immigration Refugee Board for reconsideration
before a differently constituted panel of the Board’s Refugee Protection
Division. No question for certification has been proposed and the Court finds
that none arises.
"Donald
J. Rennie"
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