Date: 20050809
Docket: IMM-6197-04
Citation: 2005 FC 1081
Ottawa, Ontario, the 9th day of August 2005
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
HEBERT JARAMILLO DIAZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. This is an application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated June 21, 2004 wherein the Applicant was found not to be a "Convention refugee" or a "person in need of protection" pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
2. The central issue in this case is one of credibility. The Board simply did not believe that the Applicant would be at risk should he return to Colombia, or that he would be at risk of cruel and unusual treatment, beyond the risk faced generally by all persons in Colombia in light of the random violence of the continuing civil war there.
3. Besides the written arguments exposed in his Application Record (page 90), I have considered the written comments on the impugned decision, dated July 11, 2004, and translated in English, made by the Applicant (Application Record, pages 84-86). In a nutshell, the Applicant submits that the interpreter made translation mistakes at the hearing before the Board. Moreover, the Applicant questions the correctness of certain factual findings. He also provides explanations for the delay it took him to obtain business documents asked by the Board. At the hearing before this Court, the Applicant also submitted that the Board member who rendered the impugned decision did not have a clear understanding of the conditions particular to Columbia (notably with respect to business documents) and the region where he comes from (which is controlled by guerrilla groups), neither did she have a fair understanding of his experience and involvement as a mechanical engineer.
4. Despite the noble efforts made by the Applicant himself, I am not satisfied that the Board made an error of law or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it. I entirely accept the arguments made in this regard by the Respondent in his memorandum of argument. I will therefore limit myself to the following observations.
5. First, while the Applicant disagrees with the result and factual findings made by the Board or has explanations to provide in this regard, it is not the role of this Court to re-assess the evidence and substitute its opinion to that of the Board. This is not an appeal but a judicial review process. Taking into consideration the Applicant's arguments and explanations, I am unable to find any reviewable error and, as a whole, the impugned decision is not patently unreasonable in my opinion.
6. Second, from a reading of the Board's reasons, I am unable to conclude that the Board member did not have a clear or fair understanding of the conditions particular to Columbia or this particular region. The reprisals made by the Applicant concerning the Board's understanding of certain technical aspects of his work, even if well-founded (a point that I do not need to decide here), are not determinative. It is manifest that the impugned decision is based on the evidence on record.
7. Third, in its written reasons, the Board indicated in clear and unmistakable terms why it did not believe the Applicant. The negative inferences drawn by the Board are based on a number of inconsistencies between the Applicant's statement in the narrative of his Personal Information Form (PIF), the Applicant's business documents and the Applicant's testimony which relate to essential elements of this claim. On this matter, the Board was entitled to take into account the inconsistencies with respect to whether the Applicant actually built (or designed) either machinery or a hydro-electrical plant, his ownership of shares in Colombian companies and his financial status.
8. Four, the Board found it implausible that the Applicant would have sought and met with a Revolutionary Armed Forces of Colombia (FARC) commander after being notified that he was considered a military target by the FARC. In addition, the Board found it implausible that the FARC did not communicate with the Applicant to get further instructions as to the logistics in connection with the building of a hydroelectric power generating machine. Furthermore, considering the extent of the presence and influence of the FARC in Cali, the Board also found it implausible that the Applicant would have a well-founded fear of the FARC if he permitted his wife and children to return to Cali because the children were attending private school and because it was cheaper to live in Colombia. The Board also found that there was nothing to link the murders of the Applicant's brothers with his claim. Consequently, it found it implausible that the said murders would be related tot the Applicant's claim. In my view, based on common sense and rationality, such findings were reasonably open to the Board.
9. Five, the Board was entitled to evaluate the Applicant's demeanor. The Board explained that getting detailed information from the Applicant on material elements was so difficult that it seemed like the answers were being created at the hearing, and were not a recall of events that had occurred. The Board could also draw an adverse inference from the Applicant's reluctance to provide his business documents. Such findings are unassailable on judicial review in the absence of perverseness, which is not the case here.
10. Six, even if I accepted the Applicant's submission that certain translation mistakes occurred at the hearing, they would not, in my view, be sufficient to overturn the Board's overall credibility finding.
11. Consequently, I find that the Board's decision is not patently unreasonable. No question of general importance has been submitted by the parties and none shall be certified.
ORDER
THIS COURT ORDERS that the present application for judicial review be dismissed.
"Luc Martineau"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6197-04
STYLE OF CAUSE: Hebert Jaramillo Diaz v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 4, 2005
REASONS FOR ORDER BY: MARTINEAU J.
DATED: August 9, 2005
APPEARANCES BY:
Mr. Hebert Jaramillo Diaz For the Applicant
Ms. Sharon Stewart Guthrie For the Respondent
SOLICITORS OF RECORD:
Mr. Hebert Jaramillo Diaz For the Applicant
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
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