Date: 20080516
Docket: IMM-1882-07
Citation: 2008 FC 617
Ottawa, Ontario, May 16,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
NICOLAS
JOSE QUIMBAY DIAZGRANADOS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a Columbian citizen who claims to fear persecution at the hands of
the FARC guerrillas. He alleges a series of contacts between 1997 and 2005 from
FARC members demanding money and the contribution of his professional services
as a software engineer. He states that he was forced to move with his wife and
son several times within Columbia to get away from their
demands. Mr. Diazgranados came to Canada on a visitor’s visa on
April 11, 2005.
[2]
During his two week planned stay
in Canada, he phoned his parents and learned that they had been approached in
Bogotá and told that FARC would find and kill him wherever he was. The
applicant’s mother reported this threat to police. Mr. Diazgranados made the
decision to seek refugee protection and filed his claim on April 26, 2005.
Impugned
Decision
[3]
In an oral decision at the close
of the hearing, the Refugee Protection Division (RPD) member found several
points of the applicant’s story implausible and thus dismissed his claim. The
Panel noted the lack of evidence from his parents or wife. The Panel also held
that Mr. Diazgranados could not adequately explain how the incident which he
claims caused him to seek refugee protection was different from those previous,
which had not caused him to flee Columbia. He had reavailed himself of Columbia’s
protection after a prolonged stay in Peru. The Panel also found it implausible that the
applicant would not apply for visas for his wife and child to go to Canada with him
if he believed that they were at risk.
[4]
Finally, the RPD found that the
applicant separated from his wife in March 2005 and left the country a few
weeks later. He found that the separation was the reason the applicant was in Canada.
Issue
[5]
The
only issue is whether the RPD member erred in his assessment of the applicant’s
credibility or came to an unreasonable decision on the evidence.
Standard of
Review
[6]
In the aftermath of Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, decisions on matters
other than pure questions of law outside the central jurisdiction of a tribunal
are to be assessed on a standard of reasonableness. The question of reasonableness of a federal tribunal’s
decision on credibility and other factual findings is constrained by the
statutory requirements of paragraph 18.1(4)(d) of the Federal Courts
Act, R.S., 1985, c. F-7. The Court may intervene where findings of fact have
been made which are perverse or capricious or without regard to the material
before the tribunal.
Analysis
[7]
The
applicant submits that the RPD member was perverse in drawing a negative
inference from his failure to provide evidence from his parents and wife in
spite of his testimony that he felt that objective evidence would carry more
weight. He noted that the member did not attack the credibility of any of his
evidence. He also noted several points at which he claimed that the member
mischaracterized the evidence. Finally, the applicant submits that the RPD
member was perverse in finding that that
the applicant was separated from his wife and that that separation was the
impetus for his choice to claim status in Canada.
[8]
The
respondent counters that the weighing of evidence is central to the
jurisdiction and expertise of the RPD and that the member did not make any
decisions which were not open to him on the evidence.
[9]
I
would agree that the RPD member was entitled to draw an adverse inference from
the failure of the applicant to provide evidence from his family members in
support of his claim of persecution. While Mr. Diazgranados is correct that the
member did not question the validity of his mother’s denunciation of the threat
against him allegedly made to his parents while he was in Canada, it remained
open to the member to draw the inference he did. He addressed the issue with
the applicant and gave him the opportunity to respond to his concerns. The
inference drawn was within the range of reasonable findings which could have
resulted and this Court will not put it aside.
[10]
The
member’s finding on the issue of Mr. Diazgranados’ separation from his wife was
similarly open to him. While the applicant had submitted an amended Personal
Information Form to delete a reference to separation from the description of
his marital status, in testimony he stated that he was separated from his wife,
although not legally. The RPD member noted that there was no evidence from Mr.
Diazgranados’ wife corroborating his statements about the status of their
relationship. The member assessed the evidence as a whole and came to the
conclusion that the timing of the separation and subsequent departure for Canada and request
for protection was not indicative of a person who fears serious harm. Such a
conclusion was available to him on the evidence before him and the Court will
not intervene.
[11]
The
application is dismissed. No questions of general importance were submitted by
the parties, and I find none on the facts of this case.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application for
judicial review is dismissed. No questions are certified.
“Richard
G. Mosley”
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