Date: 20081215
Docket: IMM-2804-08
Citation: 2008 FC 1377
Toronto, Ontario, December 15, 2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
DIEGO
ALEJANDRO GIRON
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult male citizen of Colombia. His claim for refugee
protection was rejected in a written decision of a member of the Immigration
and Refugee Board dated June 2, 2008. The Applicant seeks judicial review of
that decision. For the Reasons that follow, I find that the application is
dismissed.
[2]
The
Applicant’s claim is based on his fear of FARC guerrillas in Colombia. He claims
to have been a sports educator in Colombia and that he had been
kidnapped by the FARC while travelling from one city to another in Colombia. At that
time, he claims that the FARC were not entirely clear what they wanted of him
but that they seemed to want him to collaborate with them while he was
otherwise doing his educational work. He claims to have been specifically
targeted by FARC on subsequent occasions during which times he and three
children living with him were threatened. He claims to have reported these
incidents to a Public Ministry but nothing came of it.
[3]
The
Member rejected the claim with brief reasons stating that the determinative
issue was credibility. The Member found that, on a balance of probability, the
Applicant had not provided persuasive evidence that the incidents with FARC
took place or that FARC are still interested in him.
[4]
The
Applicants challenges the Members determination on two grounds. The first
challenge is as to the finding of credibility; the second is that it is argued
that the Member gave insufficient weight to the documentary evidence before him
that was favourable to the Applicant.
[5]
At
the outset of the hearing, counsel for the Applicant stated that he wished to
raise a further argument. One business day before the hearing, Counsel advised
the Court and Counsel for the Respondent in a letter that he wished to do so.
[6]
Normally
a Court will be reluctant to receive argument not made in a party’s Memorandum
and where only short notice was given (e.g. Radha v. Canada (MCI), 2003
FC 1040 at paras. 13 ff). However I permitted Counsel to make the argument
which was one of failure of natural justice. Counsel pointed to the transcript
of the hearing where there was a brief exchange between the Member and
claimant’s Counsel in which the Member concluded “…you have no questions at
all, counsel.” Counsel made no verbal response.
[7]
In
this Court the Applicant’s Counsel (who was not Counsel at the hearing) argued
that if the Member had any concerns as to the claimant’s credibility the Member
was under a positive duty to raise them with Counsel at the hearing. Applicant’s
Counsel relied on cases such as Sathasivam v. Canada (MCI), May 23,
1997, IMM-2549-96 where the Court said that the Member should have advised the
claimant as to credibility concerns; however it appears that case that the
Board had said to the claimant that it was satisfied with the claimant’s
story. This case and others like it cited by Counsel are directed to a
situation where the Board or a Member clearly stated one thing and then, in the
Reasons, did another. I find that the brief exchange relied upon here cannot
be construed as the Member taking a position that would have mislead Counsel.
There is no evidence here that Counsel was misled. I find that Applicant’s
Counsel here is placing a very strained interpretation on this exchange. I find
that there is no reasonable interpretation as would give rise to grounds for
review based on natural justice.
[8]
The
Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008]
S.C.R. 190 has established that in matters not pertaining to legal questions but
to matters where discretion and weighing evidence is concerned, a standard of
reasonableness is to be applied, with deference being given to tribunals whose
expertise lie in the subject matter under review. This is such a matter.
[9]
Where
the conclusions reached are reasonably open to a Member of the Board in
reaching a decision such as this, the Court should not interfere (Aguebor v.
Canada (MCI) (1993), 160 N.R. 315 (FCA)). This is such a circumstance.
The Applicant is simply asking this Court to reweigh the evidence given by the
Applicant and come to a different conclusion.
[10]
Applicant’s
Counsel argued that the Member overlooked documents that supported the
Applicant’s claim. One such document was a survey of general country
conditions in Colombia. Others
were certificates from the mayor of a town in Colombia and from a
Municipal Prosecutor. Both certificates simply recite what the persons signing
them were told by the claimant. While hearsay evidence can be accepted into
evidence its weight is to be determined by the Member.
[11]
A
Member in giving reasons is not obligated to mention every document put into
evidence. General country conditions must be linked to specific harm likely to
be suffered by the claimant (Waheed v. Canada (MCI), 2003 FCT 329 at
paragraph 43). Documents that are reflective only of statements made by a
claimant may not be given such probative value once a negative credibility
finding has been made. At paragraph 21 of Hamid v. Canada (MEI) (1995),
58 A.C.W.S. (3d) 469, Nadon J. (as he then was) wrote:
21 Consequently, in my opinion, the
applicant's assertion that the Board is bound to analyze the documentary
evidence "independently from the applicant's testimony" must be
examined in the context of the informal proceedings which prevail before the
Board. Once a Board, as the present Board did, comes to the conclusion that an
applicant is not credible, in most cases, it will necessarily follow that the
Board will not give that applicant's documents much probative value, unless the
applicant has been able to prove satisfactorily that the documents in question
are truly genuine. In the present case, the Board was not satisfied with the
applicant's proof and refused to give the documents at issue any probative
value. Put another way, where the Board is of the view, like here, that the
applicant is not credible, it will not be sufficient for the applicant to file
a document and affirm that it is genuine and that the information contained
therein is true. Some form of corroboration or independent proof will be
required to "offset" the Board's negative conclusion on credibility.
[12]
I
am satisfied that, given the record before him, the Member arrived at a
reasonable determination and that no relevant matter was overlooked.
[13]
The
issues raised in the application are purely factual. Neither counsel sought
certification. No question will be certified. There are no special reasons
for awarding cost.
JUDGMENT
For the Reasons given:
- The application is
dismissed;
- There is no question
for certification;
- No Order as to
costs.
"Roger
T. Hughes"
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