Date:
20051205
Docket: IMM-3519-05
Citation: 2005 FC 1643
Ottawa, Ontario,
December 5, 2005
PRESENT: THE HONOURABLE
MR. JUSTICE HARRINGTON
BETWEEN:
ANDREA QUIROZ TRUJILLO
SERGIO ALBERTO MESA OSORIO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER AND ORDER
HARRINGTON J.
[1]
The events
that took place on January 26, 2001 are of paramount importance in this case.
Andrea Quiroz Trujillo is from Colombia; she was not granted refugee status.
Accordingly, this Court must rule on the application for judicial review filed
by the applicants, who are husband and wife.
[2]
Over the
course of several years, the applicant’s family – especially her father – was
targeted by the Revolutionary Armed Forces of Colombia (FARC) to the point that
the father left the house in order to hide from them. This case deals with
extortion accompanied by threats of death and bodily harm, among other things.
During this period, Andrea had left to study at the University, but had come
back home in the meantime. On January 26, 2001, there was a telephone call for
her father. As her father was absent, she took the call for him. The caller,
who was probably a member of FARC, threatened the applicant’s father and
suggested that he should leave. Andrea got hold of her father, and they went to
the police station, where Andrea signed a written complaint.
[3]
The panel
determined that Andrea was not credible, focusing particularly on the evidence
of her written complaint. The panel noted that the complaint did not bear the
official seal, and said that it had doubts regarding the contents of the
complaint.
[4]
As regards
the seal, the report had been stamped by a police officer. Andrea said that the
copy she submitted to the panel was the copy she had received, and that she did
not have another copy. She stated that, if the panel had doubts about the
authenticity of the document, it could verify the truth of her claim with the
police.
[5]
As regards
the contents of the complaint, the panel was concerned with the fact that the
applicant’s father’s presence at the police station had not been noted in the
complaint, and that the father had not signed his daughter’s complaint. The
Court wonders how the father could have signed a document testifying to a
telephone call he had not witnessed. Why then should the report note his
presence at the police station?
[6]
The
panel’s decision to reject the applicant’s claim was based on the fact that it
did not believe the applicants’ allegations. Although the panel determined that
the applicant’s testimony contained contradictions, other than those concerning
the complaint to the police, that adversely affected her credibility, in
justifying a determination of lack of credibility those contradictions cannot
be separated from the incident that took place on January 26, 2001.
[7]
In
justifying the rejection of the claim, the panel based its decision on the
Federal Court of Appeal ruling Sheikh v. Canada (Minister of Employment and
Immigration), [1990] F.C.J. No. 604; [1990] 3 F.C. 238 (C.A.).
This decision refers to the old Immigration Act,
R.S., 1985, c. I-12. At the time, the Convention Refugee
Determination Division included first-level and second-level panels. Applicants
had to establish that their claims were credible at the first level before
proceeding to the second level. If they did not, their claims could be
dismissed. In writing for the Court, Mr. Justice MacGuigan states in paragraphs
7 and 8:
¶ 7
The concept of “credible evidence” is not, of course, the same as that of the
credibility of the applicant, but it is obvious that where the only evidence
before a tribunal linking the applicant to his claim is that of the applicant
himself (in addition, perhaps, to “country reports” from which nothing about
the applicant’s claim can be directly deduced), a tribunal’s perception that he
is not a credible witness effectively amounts to finding that there is no
credible evidence on which the second-level tribunal could allow his claim.
¶ 8
I would add that in my view, even without disbelieving every word an applicant
has uttered, a first-level panel may reasonably find him so lacking in
credibility that it concludes there is no credible evidence relevant to his
claim on which a second-level panel could uphold that claim. In other words, a
general finding of a lack of credibility on the part of the applicant may
conceivably extend to all relevant evidence emanating from his testimony. Of
course, since an applicant has to establish that all the elements of the
definition of Convention refugee are verified in his case, a first-level
panel’s conclusion that there is no credible basis for any element of his claim
is insufficient.
[8]
While the
principle asserted by Mr. Justice MacGuigan was noted and discussed by
Mr. Justice Denault in Foyer v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1591 (QL) and Mr. Justice Evans of the
Federal Court of Appeal in Rahaman v. Canada (Minister of Citizenship and
Immigration), [2002] 3 F.C. 537; 2002 FCA 89, it is still important to consider
the context of a decision. We should note that the facts in this case are
different. The reasoning in the above-mentioned decisions does not apply,
because the applicant’s credibility did not rest solely on her testimony and
the conditions in the country. Despite its interpretation of her testimony, the
panel had before it extrinsic evidence in the form of the police report, which
enabled it to launch an in-depth investigation into the application.
[9]
As the
panel suggested that the documents were fraudulent, it had the burden of
investigating this matter. There is a rebuttable presumption that such
documents are valid (Osipenkov v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 59 (QL); 2003 FCT 56.
Accordingly, it would have been appropriate for the panel to conduct an
investigation to this effect (see Sitoo v. Canada (Minister of Citizenship
and Immigration), [2004] F.C.J. No. 1850 (QL);
2004 FC 1513, Quintero v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 686 (QL); 2004 FC 565).
[10]
It may be
that the police report is not credible. However, there are no facts before this
Court supporting such an allegation. It may also be that Andrea never received
a phone call on
January 26, 2001. However, it is irrational to come to such a conclusion simply
because her father did not sign the complaint at the police station. In the
circumstances surrounding this case, the panel’s decision is patently
unreasonable.
[11]
Although
the applicants raised a question for certification at the hearing, that
question must be supported when it is under appeal. As the application is
allowed, it is not necessary to certify a question in this case.
ORDER
1.
The
application for judicial review is allowed.
2.
The matter
is sent back to a differently constituted panel of the Immigration and Refugee
Board for rehearing and redetermination on the merits of the applicants’
refugee claim.
“Sean Harrington”
Certified
true translation
Magda
Hentel
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3519-05
STYLE OF CAUSE: ANDREA QUIROZ TRUJILLO AND
SERGIO ALBERTO MESA OSORIO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: November
23, 2005
REASONS
FOR ORDER: The
Honourable Mr. Justice Harrington
DATED: December
5, 2005
APPEARANCES:
Michel Le Brun FOR
THE APPLICANTS
Marie-Claude Paquette FOR
THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR
THE APPLICANTS
Counsel
Montréal, Quebec
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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