Date: 20050623
Docket: IMM-7210-04
Citation: 2005 FC 892
Toronto, Ontario, June 23rd, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
JUAN DANILO MONTENEGRO LEON
ESPERANZA JUNCA RODRIGUEZ
DAVID SALOMON JUNCA RODRIGUEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant claims refugee protection based on his subjective and objective fear of persecution from FARC in Columbia. In my opinion, the decision rendered by the Refugee Protection Division (the "RPD") with respect to the Applicants' claim is perverse.
[2] In the course of the hearing before the RPD, under questioning, first by the RPO, and then by Counsel for the Applicant, the Applicant gave his detailed evidence with respect to his claim. While his evidence was carefully tested by the RPO, with respect to the Applicant's credibility the RPO made the following statement in his written submissions:
The claimant answered all questions clearly and directly and the answers were consistent with his PIF, county conditions and with similarly situated people. The claimant's responses were straightforward and spontaneous and there appeared to be no attempts to embellish his story to improve the claim.
(Tribunal Supplementary Record, p. 151A)
[3] While the transcript of the hearing before the RPD reflects that the Presiding Member had a number of questions with respect to the details of the Applicant's evidence, at no time was the Applicant confronted with the suggestion that he might be lying about the essential elements of his claim. However, in the decision rendered, the Presiding Member concludes that the Applicant is guilty of fabricating evidence with respect to his claim, and, indeed, the Presiding Member goes even further. With respect to a single incident about which the Applicant's mother made a police report in Columbia, the Presiding Member found that she was, together with her son, part of what I described during the course of the oral hearing as a conspiracy of lies.
[4] To say the least, I find that the failure to give an opportunity to the Applicant to confront the suspicion, which presumably was in the mind of the Presiding Member during the course of the hearing, is not only unfair, but in the circumstances of the present case, constitutes a breach of natural justice.
[5] For further well substantiated concerns about the quality of the Presiding Member's decision in the present case, I recommend that interested persons read the Applicant's very well-framed and detailed argument filed in the present Application (Applicant's Memorandum of Argument, Applicant's Application Record, p. 161-175).
ORDER
As a result of the breach of natural justice found in the present case, I set the decision aside and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7210-04
STYLE OF CAUSE: JUAN DANILO MONTENEGRO LEON
ESPERANZA JUNCA RODRIGUEZ
DAVID SALOMON JUNCA RODRIGUEZ Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 22, 2005
REASONS FOR ORDER
AND ORDER BY : CAMPBELL J.
DATED: JUNE 23, 2005
APPEARANCES:
Carole Simone Dahan FOR THE APPLICANTS
Sharon Stewart Guthrie FOR THE RESPONDENT
SOLICITORS OF RECORD:
Carole Simone Dahan
Barrister & Solicitor
Refugee Law Office
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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