IMM-3650-97
HOIMER DUBAN SIERRA LEON
Applicant
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
HELD AT: Federal Court of Canada
330 University Ave., 8th floor
Courtroom 1
Toronto, Ontario
HELD ON: October 23, 1998
REGISTRAR: Sandra McPherson, Ms.
REPORTER: Robert Dudley, CVR
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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HELD BEFORE: Mr. Justice Muldoon |
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HELD AT: Federal Court of Canada |
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330 University Ave., 8th floor |
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HELD ON: October 23, 1998 |
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REGISTRAR: Sandra McPherson, Ms. |
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REPORTER: Robert Dudley, CVR |
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RICHARD M. ADDINALL, ESQ. -- For the Applicant |
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DAVID TYNDALE, ESQ. -- For the Respondent |
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I N D E X O F P R O C E E D I N G S
Pages
Reasons for Judgment ..................... 1 - 8
--- Upon commencing at 4:20 p.m.
| HIS LORDSHIP: The Court is ready to give its decision now; it will never be in a better position, likely. This is an Application for a Judicial Review of the decision, file number U95-00666 of the Convention Refugee Determination Division, or CRDD, of the Immigration and Refugee Board, dated July 31, 1997, in which the CRDD determined that the applicant is not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act. |
| Leave to commence an application for judicial review was, of course, granted in July, 1988. |
| The applicant, Hoimer Duban Sierra Leon, is a 29 year old citizen of Colombia. He fled his native country and entered Canada illegally, at Niagara Falls, on June 1, 1989. He made his claim for Convention refugee in Toronto on January 5, 1995. |
| It should be noted that the CRDD misstated this latter date in its decision, giving the year as 1996. |
| His claim is based on a well-founded fear of persecution because of his membership in a particular social class; that is landowners in Colombia. |
| The applicant no doubt suffered a great deal in Colombia. His father was murdered by brigands; sometimes called criminals, sometimes called thieves, which may be bandido in Spanish, and sometimes referred to as guerillas. Their patent efforts were directed at shaking down or extorting money from the applicant's class of persons, landowners...peasant farmers, he calls them, but they are really landowners. Peasant farmers are at least one social rank below landowners. |
| He feared for his safety, and was staying with family friends who owned a small farm. After ten months his mother, now a widow, decided that the applicant would be safer if he left the country. |
| He arrived in Niagara Falls; eventually made his way to Brampton, where he lived a quiet existence in Brampton with friends of his mother. |
| He delayed in making his claim to refugee status for over five years because, he says, he feared deportation by the authorities since he was an illegal. |
| Upon learning he could make a refugee claim, he did so. He says that he was informed by his mother's friends with whom he was living that, because he was an illegal, if he should make a refugee claim, he would be deported simply because he was not in the country legally. |
| Now, this is a young man who is 19 years of age, and who had high school education, and some college education in agronomy. |
| He filed several Personal Information Forms. Much was made in the debate between counsel here about findings of credibility and his status as a member of a group of landowners. Also, much was made about the disparities in the names of the bandits or guerillas who were persecuting him, his family and his class in Colombia. They apparently could not expect state protection. |
| When he refers to them as criminals, he is right. When he refers to them as guerillas, he is right. When he refers to them as thieves, he is right. Bandits, he is right in all that. |
| This Court's impression of the particular panel of the CRDD is that they were unrealistically picky. Because we have evidence in the file that the bandits, the guerillas, started out in various cells and organizations under different names, they coalesced, they change names. After an amnesty was declared, they might have surfaced with a different name, but as the applicant testified, they were all related. |
| That aspect of his credibility was regarded too rigidly and inflexibly, in this Court's opinion, by the CRDD. They made a mountain out of a molehill, in this Court's opinion, and findings of credibility, lack of credibility on that basis, were far too scrupulous and not reasonable. |
| But that is not the important part of this claim. The important part of this refugee claim, and what the CRDD had to face was plain and simple delay. The CRDD panel found that his claim was implausible because of the delay. |
| He was an intelligent person. He was not necessarily, anyone might suppose, held in prison or incommunicado, unable to hear television and radio, unable, perhaps, to see the Minister of Immigration and meeting a group of refugee claimants and walking with them toward Ottawa. All of this...and they were illegal. They were people who came from a ship. |
| One may not be quite accurate on the right time there, but much is made in the newspapers of Convention refugee claims by various people, in various plights, and various modes of arrival, and that is just common knowledge. |
| It is incredible that he would believe that he could not make a refugee claim because he was an illegal, that he didn't have a Visa, or whatever. That is incredible. That he would wait five years in that belief, if the belief were true, is even more incredible. |
| One would expect that he would attempt to discover, from all sorts of people, television, newspapers, Spanish-speaking people with whom he would be in touch, many of them immigrants or refugees themselves, what his status would be, what it should be. |
| And so it is true, as the respondent's counsel says, delay affects credibility because it is inconsistent with a well-founded fear of persecution. Anyone who comes to this country with a well-founded fear of persecution, and the Court does not hesitate to say anyone, they are not going to wait around for five years before regularizing his or her status. He has come to this country because he fears the government and the conditions of his own country, or the bandidos whom the government cannot suppress in his own country, and makes a claim for refugee status. |
| In any event, it is not only this Judge who sees it that way, but the jurisprudence is clear, that delay will vitiatethe well-foundedness of the fear necessary to be declared or determined to be a Convention refugee. |
| And the panel was aware of that. It stated that he is educated, literate, has access to Spanish newspapers, as well as the Spanish radio and television programs. |
| The panel also specifically found that the claimant has never produced any documentation supporting his landowner status in Colombia, and then they proceeded assuming that his status could be established. |
| But that is a matter of doubt, too. After one views the delay, one doubts that he really could be part of that class targeted for guerilla or terrorist extortion. |
| All-in-all, on those aspects of the applicant's claim, the CRDD, while its decision, in this Judge's opinion, is not a model of clarity, is correct. The CRDD was correct in finding that there is doubt of his well-founded, objective fear of persecution, and his credibility, because of the delay, so they did not find that his claim was trustworthy. |
| On that basis, the application to quash or set aside the CRDD's decision is dismissed. It is dismissed, and there is no question to certify, in this Court's opinion. It all turns on delay and status, or social group, neither of which leaves the CRDD or this Court in any confidence that the applicant's story is trustworthy. |
| Are there any questions? No? Let the Court say one other thing, then, and that is to say that neither party, and I make special reference to the applicant, ought to be disappointed in the efforts of counsel. The Court's view is that the applicant got the best shake, the best representation he could have got in the circumstances which were of his own making. |
--- Upon adjourning at 4:35 p.m.
| I hereby certify the foregoing to be a true and accurate transcription of the above noted proceedings held before me on the 23rd day of October, 1998 and taken to the best of my skill, ability and understanding. |
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| } _______________________________ |
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| } Certified Verbatim Reporter |
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