Date: 20060823
Docket: IMM-6948-05
Citation: 2006 FC 1018
Toronto,
Ontario, August 23,
2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
BISI
YETUNDE AJAYI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Bisi Yetunde Ajayi is a Nigerian woman. She claims to have been
married in Nigeria to a man who
was an abusive husband; he beat her on several occasions. As a result, the
Applicant left Nigeria and claimed protection in Canada as a
Convention refugee. The Applicant’s claim was considered at an oral hearing
before a Member of the Immigration and Refugee Board. The Applicant was
represented by counsel at that hearing. That Member, in a written decision
dated October 18, 2005, rejected the claim. Judicial review of that decision
by this Court is now sought.
[2]
The
Member found that the Applicant’s allegations were not credible, that there was
a lack of any supporting evidence, that there was no satisfactory explanation
for the lack of supporting documents and that the Applicant had failed to
demonstrate an objective fear. Accordingly, the Member was not persuaded that
there existed a serious possibility of persecution, or of a risk to her life,
or risk of cruel and unusual punishment or a danger of torture should she
return to Nigeria.
[3]
The
Applicant raises essentially the following issues:
1.
The Member
ignored or misconstrued the evidence.
2.
The Member
made a palpable error in stating, in the Reasons for Decision, that the Applicant
had two and a half years to gather evidence, whereas it was only one year and
nine months; and
3.
The Member
should have adjourned the hearing so as to permit the Applicant to gather
further evidence and failure to do so was a denial of natural justice.
[4]
The
law is clear as to the standard of review to be applied by this Court, on
findings of credibility and findings based on the evidence, the standard is
that of patent unreasonableness (Canada (MCI) v. Mugesera, 2005 SCC 40
at para 38). At the hearing before this Court, counsel for both parties
acknowledged that this was the correct standard.
[5]
On
the other hand, if there is a failure of natural justice, then no deference is
to be afforded to the Member’s decision (Canadian Union of Public Employees
(CUPE) v. Ontario (Minister of Labour), 2003 SCC 29).
[6]
Turning
first to the issue in respect of natural justice. Section 100(4) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 and Rule 7 under that Act
puts the onus on the claimant to provide documents establishing the elements of
the claim made; the burden of proving the claim rests with the claimant. The
Claim Information screening form provided to the claimant in this case included
a notice that the claimant should file evidence and be prepared to testify with
respect to all elements of the claim. The Applicant was represented by counsel
and had ample time to prepare her case. A review of the transcript at the
hearing shows that neither the Applicant nor her counsel requested an adjournment
so as to gather further evidence. There was no denial of natural justice.
[7]
As
to the findings of credibility and findings on the evidence a review of the
record does not demonstrate that the Member committed any reviewable error.
Whether the Applicant had two and a half years or one year and nine months to
prepare her case is immaterial. The transcript shows, at pages 25 and again at
34, that the Applicant agreed with the Member that more than two years had
elapsed since she had been in Canada. The Applicant had more than ample time
to prepare her case. A review of the Record confirms that no material evidence
was ignored or misconstrued by the Member. The Member addressed the relevant
evidence and made no patently unreasonable error in arriving at the findings
set out in the Reasons.
[8]
Accordingly,
the application will be dismissed. There is no question for certification. No
order will be made as to costs.
JUDGMENT
UPON application
made to this Court on the 23rd day of August, 2006, for judicial review
of a decision of a Member of the Immigration and Refugee Board denying the
Applicant’s claim for protection as a Convention Refugee;
AND UPON reading the
Records filed herein and hearing submissions from counsel for the parties;
AND for the Reasons delivered
herewith;
THIS COURT ADJUDGES that
1.
The
application is dismissed;
2.
There
is no question for certification; and
3.
There
is no order as to costs.
“Roger T. Hughes”
Email this Content