Docket: IMM-2294-11
Citation: 2011 FC 1324
Ottawa, Ontario, November 18,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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IGOR GUZUN
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Applicant
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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]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated March 8, 2011. The
Board determined that the Applicant was not a Convention refugee or person in
need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
Igor
Guzun, the Applicant, is a 29 year old citizen of Moldova. He fears
persecution if returned to that country based on his sexual orientation.
[4]
The
Applicant claims that as a bisexual male he was harassed while attending the Moldovan Economic Academy. He
also alleges that he was beaten by homophobic co-workers and neighbours and
forced to resign from his job.
II. Decision
under Review
[5]
The
Board initially addressed procedural matters. The hearing had previously been
adjourned for lack of time and counsel was unavailable due to illness. The
Presiding Member was, however, satisfied that the Applicant made an informed
decision to proceed with the hearing without counsel. He informed the Board
that he wished to bring the hearing to a conclusion. After some questions and
discussions about the Applicant’s options, the Presiding Member granted a
recess to allow the Applicant to confer with friends who had accompanied him
for moral support. Following that recess, the Applicant again advised he
wished to proceed rather than postpone.
[6]
In
the course of its assessment, the Board found credibility issues associated
with the Applicant’s claim that he was being targeted because of his
bisexual/homosexual relationships. There were inconsistencies and omissions
related to central aspects of his claim. He also failed to produce some
documentary corroboration that might reasonably be available to him. Some of
the specific issues identified by the Board included that:
• Details
regarding an attack after his graduation ceremony in June 2004 were not in his
Personal Information Form (PIF) and there were no documents, such as a doctor’s
exam or police report, provided in support of this claim
• Due
to inconsistent information, it was unable to conclude the Applicant was forced
to leave his job on account of his sexuality in 2006 and 2007
• A
medical certificate indicating the Applicant was treated for a dislocated
shoulder did not state that it was the result of an attack in March 2007 as he
claimed
• He
could not satisfactorily explain why he returned to Chisinau after he and his
friend Sergey were alleged to have been beaten outside a café in October 2007
• Information
showing he was a currently a member of a Toronto church with
a support group for bisexual and homosexual individuals was not sufficient
III. Issues
[7]
This
application raises the following issues:
(a) Was
it a breach of natural justice or procedural fairness for the Board to proceed
with the hearing despite the absence of the Applicant’s counsel?
(b) Was the Board’s decision
regarding the Applicant’s credibility reasonable?
IV. Standard
of Review
[8]
Questions
of procedural fairness are reviewed on a standard of correctness (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43).
[9]
The
Board’s decision regarding credibility is reviewed based on the reasonableness
standard (Huang v Canada (Minister of
Citizenship and Immigration), 2008 FC 346, 2008 CarswellNat 694 at para
7). As articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47, reasonableness is “concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.”
V. Analysis
Issue A: Was
it a Breach of Natural Justice or Procedural Fairness for the Board to Proceed
with the Hearing Despite the Absence of the Applicant’s Counsel?
[10]
The
Applicant submits that the Board should not have proceeded with the hearing in
the absence of the counsel of record. Due to illness, counsel had passed along
a letter requesting an adjournment that was presented to the Presiding Member. The
Applicant in his written submissions indicated that he was led to believe by
the Member that it would be beneficial to his claim if he proceeded. There is
no merit to this submission and this claim was wisely not pursued during the
hearing of this matter. He claims that he was anxious and confused about this
decision. His English speaking friends advised him during the recess but they
are not legally trained, licensed or knowledgeable in refugee matters. He
proceeded under duress and did not make an informed decision.
[11]
The
Respondent contends that the Board’s decision demonstrates that the Applicant
made an informed decision. He told the Board member that he wished to proceed
“to bring the matter to a conclusion.” There was some discussion surrounding
the issue and a recess provided to confer with friends. The Applicant again
advised that he wished to proceed.
[12]
Based
on a review of the transcript of the hearing, the Board member addressed the
written request for adjournment. She asked questions of the Applicant as to
when it was brought to his attention. It was the Applicant who urged
proceeding with the hearing and reaching a conclusion on that day. He also
hinted at some dissatisfaction with his counsel. The Board member verified if
the Applicant still wished to proceed after giving him a recess to confer with
friends. The record suggests that the Applicant was given the opportunity to
reach an informed decision to proceed in the absence of the counsel and forgo
the request for adjournment.
[13]
There
is no absolute right to counsel in immigration and refugee proceedings. Where
the absence of counsel deprives an individual of the right to a fair hearing,
however, judicial review must be granted (see the summary of jurisprudence
provided by Justice Sean Harrington in Mervilus v Canada (Minister of
Citizenship and Immigration), 2004 FC 1206, [2004] FCJ no 1460 at paras
17-22).
[14]
In
Nemeth v Canada (Minister of Citizenship and Immigration), 2003 FCT 590,
28 Imm LR (3d) 262, this Court addressed a situation where refugee claimants
waived their right to counsel because that counsel could not be present on the
date scheduled for the hearing. Since the claimants chose to proceed, this did
not in itself breach the duty of fairness. Nevertheless, the Court determined
fairness issues arose during the hearing. The Court noted that the Board
should have been “alive to the risk that the claimants were ill-prepared to
represent themselves” and that the “Board’s freedom to proceed in the absence
of counsel obviously does not absolve it of the overarching obligation to
ensure a fair hearing.” In that instance, the claimants were found not to have
been able to assert their rights as part of the refugee claim.
[15]
Having
made the decision to proceed in this instance, however, I do not find that the
Applicant was deprived of his right to a fair hearing. He was given the
opportunity to present the remainder of his case in response to the questions
of the Board member who seemed “alive to the risk” that he was “ill-prepared to
represent” himself. As an example, the Board member expressly explained to the
Applicant that he had an opportunity at the end of the hearing to present final
submissions, noting that if counsel was present he would be advised
accordingly. The member asked the Applicant if he had any further information
to provide to the Board.
[16]
Since
the Applicant made an informed decision to proceed and was able to assert his
rights, unfairness did not result from the Board continuing despite the absence
of counsel.
Issue
B: Was the Board’s Decision Regarding the Applicant’s Credibility Reasonable?
[17]
The
Applicant disputes the Board’s negative credibility findings on two bases. First,
it was unreasonable for the Board to question his credibility claiming that
there were inconsistencies and omissions in the PIF, particularly since the
purpose of the oral hearing is to permit the Applicant to elaborate further in
support of his claim. Second, the Applicant insists that it was unreasonable
to characterize the absence of some documents as a failure to produce
documentary corroboration. He notes that a power of attorney to obtain
documents from Moldova, medical documentation and supporting letters
from the LGBT community were provided to the Board.
[18]
I
acknowledge that the Board should not be concerned with minor inconsistencies
or elaborations based on the PIF (see Feradov v Canada (Minister of
Citizenship and Immigration), 2007 FC 101, 2007 CarswellNat 180 at
paras 18-19; Mohacsi v Canada (Minister of
Citizenship and Immigration), 2003 FCT 429, 2003 CarswellNat 941 at
para 20). However, the omission of a significant or important fact from the
claimant’s PIF can serve as a basis for a negative credibility finding (see Akhigbe
v Canada (Minister of Citizenship and Immigration), 2002 FCT 249, 2002
CarswellNat 498 at para 12; Khalifa v Canada (Minister of
Citizenship and Immigration), 2004 FC 369, 2004 CarswellNat 649 at para
18).
[19]
In
this case, it was reasonably open to the Board to reach an adverse credibility
finding based on the omissions and inconsistencies with the PIF described. These
were related to central aspects of the Applicant’s claim that he was persecuted
in Moldova because of
his bisexual relationships. This included details related to the attacks, why
he left his employment, when his family knew about his relationships and why he
responded as he did in returning to a location where he was attacked. The
Board Member in some instances seemed overzealous in considering some of the
inconsistencies; however, taken as a whole the Board’s negative credibility
finding fell within the range of acceptable outcomes.
[20]
With
respect to the documentary evidence, it is open to the Board to give certain
documents limited weight (see for example Dzey v Canada (Minister of
Citizenship and Immigration), 2004 FC 167, [2004] FCJ no 181). It
is not unreasonable to require documentary corroboration of critical aspects of
the Applicant’s claim, including additional information related to the attacks
he claimed to have been subjected to and the issues associated with his
employment.
[21]
Based
on the PIF inconsistencies and lack of corroborating documentary evidence of
what it considered critical aspects of the Applicant’s claim, the Board’s
negative credibility finding was within the range of possible, acceptable
outcomes.
VI. Conclusion
[22]
Given
that the Applicant made an informed decision, the Board did not commit a breach
of natural justice by proceeding without his counsel of record. In addition,
the credibility findings related to inconsistencies in the PIF and
corroborating documentation were reasonable in the circumstances as they
related to material aspects of the Applicant’s claim.
[23]
Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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