Bartell v. Canada (Minister of Citizenship and Immigration), 2003 FC 1109

Date: 20030929

Docket: IMM-5425-02

Citation: 2003 FC 1109

Ottawa, Ontario, this 29^th day of September, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                                    CARLOS ALBERTO BARTELL

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 Carlos Alberto Bartell claims to have been threatened by government agents because of his involvement in labour disputes on behalf of his fellow transportation workers in Argentina. A panel of the Immigration and Refugee Board dismissed his application for refugee status. It found his testimony lacking in credibility.

[2]                 The Board, in a one-page decision, gave two reasons why it disbelieved Mr. Bartell. First, he had supplied no documentary evidence of his membership in the union. The Board described his union activities as central to his claim. Second, the Board said that Mr. Bartell gave inconsistent evidence about the date on which he had been threatened.

[3]                 I have reviewed the record carefully and find that the Board erred with respect to both of its grounds for dismissing Mr. Bartell's refugee claim. As such, I must allow his application for judicial review and order a different panel of the Board to reconsider his claim.

[4]                 The Board was wrong to draw a negative inference from Mr. Bartell's failure to produce written proof of his membership in the union. He testified consistently that he was not a union member at the relevant time. He believed that he was perceived by the government to be a union official because he was a spokesman for his co-workers. But he stated repeatedly that he was not a member and, therefore, the Board could not reasonably have expected him to prove otherwise.

[5]                 Mr. Bartell did make an error when he said that he had been assaulted in May 2000. According to his written narrative, the date was actually May 2001. However, Mr. Bartell corrected his testimony spontaneously and almost immediately. As I read the transcript, he made a minor misstatement, insufficient to cause the Board to discount his other evidence.

[6]                 I will, therefore, allow the application for judicial review and order a different panel of the Board to reconsider Mr. Bartell's claim. Neither party proposed a question of general importance for certification, and none is stated.

                                                                        JUDGMENT

IT IS HEREBY ADJUDGED that:

1.          The application for judicial review is allowed.

2.          The applicant is entitled to a new hearing before a different panel of the Board.

3.          No question of general importance is stated.

                                                                                                                                      "James W. O'Reilly"        

                                                                                                                                                               Judge                      

                                                                     FEDERAL COURT

             Names of Counsel and Solicitors of Record

DOCKET:                                             IMM-5425-02

STYLE OF CAUSE:                           CARLOS ALBERTO BARTELL   

                                                                                                                                                         Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                                     Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       WEDNESDAY, SEPTEMBER 3, 2003

REASONS FOR JUDGMENT

AND JUDGMENT BY:                     THE HONOURABLE MR. JUSTICE O'Reilly

DATED:                                                MONDAY, SEPTEMBER 29, 2003

APPEARANCES BY:                        Mr. Mancia

For the Applicant

Mr. Robert Bafaro

For the Respondent

SOLICITORS OF RECORD:          Mr. Mancia

Adelso Mancia Carpio

335 Bay St, Suite 801

Toronto, Ontario M5H 2R3

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent