Date: 20080630
Docket: IMM-4908-07
Citation: 2008 FC 818
Ottawa, Ontario, June 30, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
DMYTRO MATVISYK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Dmytro
Matvisyk is the applicant in this judicial review application. He is a citizen
of the Ukraine whose claim
for refugee protection was rejected by the Refugee Protection Division (the
tribunal or the RPD) on October 30, 2007.
[2]
The
tribunal found “that with respect to the material elements of the story, the
claimant’s testimony was not credible”. It further held that it “does not find
his documents credible”.
[3]
The
applicant’s challenge to the tribunal’s decision is based on two grounds:
- He was denied a
fair hearing when the tribunal failed to pursue an acquisition to
information request (AIF) to obtain copies of a Ukrainian court
case and the tribunal’s subsequent conclusion his documentation was not
genuine;
- The tribunal’s
credibility findings were without regard to the evidence and/or based on
irrelevant considerations.
Facts
[4]
The
applicant fled the Ukraine to arrive in Canada on September
23, 2004. He fears persecution by a gang of drug dealers and says he is without
protection from the police who have links to the drug dealers. While studying
at the university, he was asked by Ivan, the leader of the gang, to assist them
in pushing drugs on the campus; he refused. He alleges he was attacked three
times for his lack of cooperation:
- On October 10,
2003 for the first time; he was taken for treatment at a hospital and
was released that same day. He says the doctor at the hospital called the
police who took a report “but did not provide any help”;
- On December 24,
2003, he was attacked a second time by gang members who “beat me up
severely and left me bleeding on the ground”. He was hospitalized for
eight days and then released. He writes in his personal information form
(PIF) the doctor called the police who took a report and left and “like
before, the police did nothing”;
- On April 16,
2004, he was attacked a third time; he asserts he was beaten to
unconsciousness and awoke in the hospital. He was there for two weeks. He
says: “The doctor called the police but they didn’t do anything”.
[5]
In
his PIF, he writes of another incident which happened on April 4, 2004
when he attended a party at the university. He writes he was approached by Ivan
and three other persons who had participated in a previous beating. He was
beaten again. He writes: “They left me a bag of pills and told me if I don’t
sell these and show up with the money in a few days your life is over.” He took
the pills to the police station. They took the drugs and took his report and
said that they would contact him after they finished their investigation but “I
never heard from them thereafter.”
The previous hearing
[6]
The
applicant’s refugee claim was heard by two tribunals. The first tribunal
began its hearings on October 6, 2005. It received the following
documentary evidence from the applicant:
- A certificate
issued to the applicant by the Municipal Clinical Hospital for Emergency Aid
in the city of Lviv confirming that on October 10, 2003 he was
treated at the trauma department and referred to further treatment in out
patient care (certified tribunal record (CTR), volume 1, page 153);
- An extract from the
medical records of the Regional Clinical Hospital in Lviv stating the
applicant had been admitted on April 16, 2004 suffering from “a
brain concussion, bruises and scratches to the head, pierced wounds and
haematomas of the bodily parts especially pronounced in the abdomen area” and
was released on April 29, 2004 (CTR, volume 1, page 155);
- A letter dated October
17, 2003 from the District Police Office on Horodotska Street in the city
of Lviv to the effect the police had reviewed his complaint with respect
to the injuries on October 10, 2005 and since it was impossible to
identify the perpetrators they were unable to open a criminal
investigation into the matter (CTR, volume 1, page 161); and
- A letter from that
same District Police Office dated March 2, 2004 in response to his
complaint dated December 25, 2003 taken in the Emergency
Clinical Hospital with respect to an assault by a group
of individuals on December 24, 2003 resulting in heavy bodily
injuries. The applicant was advised it had been impossible to open a
criminal investigation into the matter due to inadequate information
regarding the fact of the wrongdoing and its perpetrators. It was signed
by an officer named G.D. Ponomarenko (CTR, volume 1, 159).
[7]
At
this hearing on October 6, 2005, an issue arose as to the authenticity of these
documents. With the concurrence of counsel for the applicant and the Refugee Protection
Officer (RPO), the tribunal made an acquisition of information request (AIF)
to the Immigration and Refugee Board’s Specific Information Research Unit
(SIRU).
[8]
The
SIRU then asked by request dated November 21, 2005 the Canadian Embassy
in Kiev (the
Embassy) to make appropriate inquiries. The SIRU received three responses from
the Embassy in January and February, 2006 which it communicated to the RPO who
then transmitted a copy of the information to counsel for the applicant.
[9]
The
Embassy advised the hospitals, mentioned in the applicant’s documentary
evidence, had informed it the documents said to be from them were false as they
had no record of the applicant having received medical assistance from their
establishments.
[10]
The
Embassy also advised on the authenticity of the letters from the Police District
Office on Horodotska
Street
in the city of Lviv which the applicant had tendered in evidence. It
advised one of its officials had contacted the police station on a no names
basis; the address of the police station was correct but the telephone number was
not. Furthermore, with respect to the complaint of the December 24, 2003 attack,
they was no police officer at that District Office named G.D. Ponomarenko.
Moreover, the police indicated to the Embassy that: “It looks like the
certificates are false [because] there were no special outgoing markings etc.
present.”
[11]
The
tribunal resumed its hearing of the applicant’s claim on May 11, 2006.
The applicant was confronted about the information received from the SIRU/Embassy.
He testified the police had seen his father at his house on January 5, 2006
inquiring about the applicant; they (the police) seemed to be aware the
hospital reports he had tendered to the tribunal as confirmation of his
hospitalizations had been sent to the Ukraine for verification. He
testified the police had pressured the hospitals to make false reports he had
never received treatment from those establishments (CTR, volume 2, page 203)
and their motive for pressuring the hospitals give false information was
because they were associated with the drug dealers (CTR, volume 2, pages 309
and 310).
[12]
He
was asked about the incorrect telephone number for the District Police Office.
He answered he had searched the Internet, found the website for the Municipality
and downloaded the telephone number of the District Police Office which revealed
his document contained the correct telephone number for the police station.
[13]
At
the May 11, 2006 hearing, the applicant was also asked about the significance
of another document he had tendered, namely, two extracts: one dated October
23, 2003 and the other dated April 16, 2004 from his medical book
(CTR, volume 2, page 203). The applicant testified his medical book issued in
1982 at his birth contained all of the medical treatment he had ever received.
He confirmed these extracts were filled in by his family doctor and not by
the doctors who treated him in the two hospitals referred to in his documents.
[14]
The
applicant was then asked whether he had any information on the doctors who had
treated him. At CTR, volume 2, page 314, he testified his father had contacted the
doctor who had treated him in October 2003 and asked him why the hospital would
write he had not treated his son. He testified the doctor told his father the
information from the hospital was incorrect and that, in fact, he had treated
his son. He testified the doctor had challenged the hospital about its false
report and was fired for it and had sued the hospital for unjust dismissal. He
testified he could obtain information about the court case within a month
because the doctor had indicated to his father he would be willing to provide
those court documents. He also testified the doctor had later informed his
father the Court had reached a decision in his favour.
[15]
After
discussion with the applicant and the RPO, the tribunal agreed the matter of
access to the court documents should be pursued and adjourned its hearing on
the applicant’s claim to September 7, 2006.
[16]
Prior
to the resumption of the September 7, 2006 hearing, counsel for the applicant
advised the RPO the applicant had told him the doctor concerned was afraid to
send the recent court judgment fearing reprisals. Counsel suggested an attempt
be made to obtain the court judgment through other means including directly
through the Court in the Ukraine or through the
applicant’s father’s further efforts or by means of a second AIF.
[17]
The
September hearing centered on the need to obtain the Ukrainian court decision.
The tribunal expressed its scepticism the court order would include any information
about the applicant’s hospitalization to which counsel for the applicant
responded it was likely to contain some reference to the applicant because the
doctor had been fired when he had challenged the hospital’s statement he had
never treated the applicant. The tribunal remained sceptical whether obtaining
the court order could assist the tribunal. Counsel for the applicant admitted
he was speculating about what the court order might say. The RPO indicated
credibility was the main issue in the case before the tribunal and while
stating that nobody really knew what the court document might ultimately say he
was of the view this was the claimant’s opportunity to present evidence and added
the issue of his credibility would be greatly affected by such document. He
suggested, recognizing there were no guarantees on what it would contain and
might involve much more time to obtain it without guarantees, it might be in
the claimant’s best interest to be provided with this opportunity (certified
tribunal record, pages 349 through 351).
[18]
After
considering the matter, the tribunal despite having reservations about what the
court document might contain, stated at CTR, volume 2, page 353: “But given the
seriousness of the issue that we are dealing with here, that is the issue of
credibility, if it is possible, I think we should at least make one more
attempt to get this information.” The hearing was adjourned to December
4, 2006.
[19]
The
December 4, 2006 hearing was brief because the Ukrainian court document
was still not available to the tribunal. Discussion took place why the
applicant’s father could not obtain that document. At CTR, volume 2, page 378,
the RPO confirmed a process had been agreed to which was that the tribunal
would first obtain an answer from counsel for the applicant whether the
document could be obtained through efforts from his side and, in default, the
second AIF would go out. On December 4, 2006, the presiding
member signed the second AIF dated that day to the SIRU requesting it “to
obtain the court order issued in August 2006 from the … court concerning Dr. … suing
for wrongful dismissal against Lviv City Council Health Care Department …”.
[20]
At
that hearing, the tribunal stressed it was important to obtain the results of
the second AIF as quickly as possible because her appointment with the
Immigration and Refugee Board would end on January 19, 2007. The hearing then
adjourned to January 15, 2007; counsel and the RPO asked to advise on
developments in the interim.
[21]
The
second AIF was sent to the Embassy in Kiev who advised, shortly
thereafter, the request for the Ukrainian court order would needed to be made
through the Ministry of Foreign Affairs of Ukraine because “Courts will not
disclose information to third parties”.
[22]
The
tribunal reconvened on January 15, 2007. At that hearing, the RPO raised
the issue whether “it may not be a reasonable exercise to continue with this
research” for three reasons: The Court judgment may not mention the applicant’s
circumstances; it appears the judgment has been appealed and it may take a long
time to get a response. On the other hand, he suggested it also might be
reasonable to keep going because new research had discovered the judge’s name
and the court file number which might speed up matters. The RPO, in this connection,
stressed credibility was a major issue.
[23]
Counsel
for the applicant, at the January 15, 2007 hearing, agreed the matter should be
pursued. He submitted the material from the SIRU was extremely prejudicial yet
there were some indications that information may be tainted and that, in the
circumstances, the applicant should have an opportunity to respond or obtain
additional information (CTR, volume 2, pages 398 to 401).
[24]
The
tribunal agreed the next step should be to send the Ukrainian Court file number
to the SIRU and, if there was a response “presumably this would provide
enough information for another member then to determine at what point that
enough effort had been given to acquire as much information as we can, and then
to proceed with making a decision”. [Emphasis mine.]
The second tribunal
[25]
The
new tribunal convened on August 1, 2007 as an administrative de novo.
It proceeded first in a pre-hearing conference phase with a new RPO and counsel
for the applicant present and, at its conclusion to convene in a hearing phase
to hear the applicant’s testimony.
[26]
At
the pre-hearing phase, the new tribunal verified the state of the documentary
evidence and whether what it had in its possession was complete.
[27]
At
that point, counsel for the applicant inquired of the new tribunal whether a
request had been made by the first tribunal to have a verification performed on
the extracts from the applicant’s medical book tendered into evidence.
He indicated the previous tribunal had kept in her possession the applicant’s
medical book: “That’s why the member kept it. Because we were certainly
contemplating having the book verified.” (CTR, volume 2, page 416) to which the
presiding member stated: “The onus is on the claimant to present his case and
its not, I don’t think we are, the board is an investigation sort of a board to
do that. I think the member had some concerns on some documents. They were
sent. We have, we have a response for those documents already. And I think the
claimant’s answer came from that as to, this was done, so if, at many points in
the hearing. So perhaps we can clarify as to what his position is at this
moment. He has been in this country now for almost three years. And what fear
he has at this point of returning to Ukraine.” The tribunal asked whether
counsel for the applicant had anything else they would like to address to which
he stated the only concern he had is the status of the request for the court
order to which the tribunal responded: “Well I don’t intend to postpone to
wait for that request to come in. So far I have not seen it come in.” The
RPO responded by stating she was not “too sure how material it is to this
claimant’s case. I mean, if the doctor were here [sic] making a refugee
claim it would be central, but it’s pretty peripheral to the applicant, I think.”
to which counsel for the applicant stated: “I don’t agree with that.” (CTR,
volume 2, page 417).
[28]
The
tribunal completed the pre-hearing conference by repeating: “ … the board is
not an investigative forum. The only thing I need to look at is, has the
claimant established his claim, and what fear he has at this point of return,
and that is, has he established all parts of his claim, and established his
fear of return. Having said that, of course you can explore with you, with the
claimant, these issues. But I think the matter has been on the books for quite
a while. I think he probably would want a closure as well, to see what happens.
So I think perhaps we can bring them in.” (CTR, volume 2, page 418).
[29]
The
tribunal began its hearing phase by informing the applicant what happened at
the pre-hearing conference. The tribunal mentioned the request for information
and the specific request for the Court documents which the tribunal stated: “As
far as I know, there is no response back. However, there were matters discussed
of previous information and confirmation that was sent to Ukraine and which
was discussed and you were asked questions about it in, by the previous member.
I know that, because I have a transcript which I have read …” (CTR, volume 2,
page 420).
[30]
She
stated at the same page of the transcript “we are going to proceed. And the
question remains, or the issues remain, and the onus is on you to establish
your claim as to what your circumstances were in relation to criminality,
corruption, or being a victim of a crime in the Ukraine. And what
fear you have at this point of time, or what harm will come to you if you
return to Ukraine. So in order
to do that I have your testimonies from previous and you will be given the
opportunity to give your explanation and answer more questions today and
instead of waiting for any responses, it would be better to finalize this
because you would want closure, you would want an answer on what’s happening to
your claim. So the determinative factor here is credibility, and whether or not
you would be harmed if you go back, and the credibility of the documents that
you presented. In order to do that we give an opportunity to answer questions.”
[31]
Two
pages later into the transcript, the tribunal again stressed credibility, she
identified the credibility of the applicant’s document and speaking to the
applicant said: “it is important that I believe you.”
[32]
The
hearing then proceeded with the RPO asking several questions (CTR, volume 2,
pages 423 to 454) covering such issues as his fear of harm if he returned to
the Ukraine today; whether the medical reports identified the causes of his
injuries; why there were certain omissions from his PIF, for example, why he
did not say the police were behind Ivan; his expectations of the police since
he did not know Ivan’s last name; the impact of his name being disclosed to the
authorities to which he answered he was not sure it was a leak by the Embassy;
an apparent contradiction in his testimony on that point; his many trips
outside the Ukraine; his seeing Ivan twice at his employer’s premises, but his
not warning his employer about Ivan being a drug dealer; the omission in his
PIF he feared his employer; his father’s second wife’s sponsorship to Canada of
his father and the applicant’s brother; the plausibility why would the doctor
fear reprisal and not be willing to send him the Court documents.
[33]
At
page 454, the presiding member asked a few questions specifically about his
father’s wife being in Canada and sponsored his father and brother.
[34]
He
was specifically asked by the presiding member: “Now, there were a lot of
questions in regards to the extracts of the medical book in the last sitting.
And the response that we received. Do you have anything else to add? I’m going
to give you an opportunity at this moment to do that” to which the applicant
stated. “No, everything I could I have added already” adding: “the only thing,
I just hope that it would somehow be checked about the hearing of my doctor in Ukraine.” I
reproduce the presiding member’s response to that comment at CTR, volume 2,
page 459:
“Sir, I just want to make you aware that
our (inaudible) our organization which I believe was explained to you, how they
make their inquiries in other countries. They’re very confidential. And at this
point, all, the onus is on you to present your claim and for me to see what
fear you have at this point of returning. And given, give you the opportunity
to explain, give your reasons. And the court document that you’re referring to,
sir, even if they are checked, how would one be able to say that they were,
that these things transpired because of any investigation that was made
earlier. And as is said that this Board is not an investigation unit. But I
will take into consideration everything that you’ve said in the previous
sittings, today. All the documents before me. But at this time I have to give
counsel opportunity to give, to ask his re-direct questions. Okay?
[35]
His
counsel first exhibited to the applicant his medical book. He asked the
applicant what information it contained to which he answered his entire medical
history. He confirmed only two extracts had been translated; the October 23,
2003 entry and the April 16, 2004. He was asked how his family doctor would
know what to write to which the applicant stated his family doctor would have called
the hospital; he confirmed no request had been made to have the medical book
independently verified.
[36]
He
was asked by his counsel if he could provide a physical description of Ivan; he
said he was tall and then said he provided the police with his description, who
his associates were.
[37]
He
told his counsel his father received anonymous calls recently; one time, they
asked about him, the other times they phoned and then hung up. He thinks the
callers are people looking for him because he is a carrier of information
having seen cases being unloaded at his employer’s premises suspecting the
cases contained drugs.
[38]
He
said “no” to his counsel’s question “Do you think you could protection [sic]
from anyone in the Ukraine today, if you go back.
[39]
In
argument before the tribunal, at page 466 of CTR, Volume 2, counsel for the
applicant commented on the credibility of the documents. He submitted the
claimant had produced evidence which cast considerable doubt on the SIRU
findings particularly on the wrong telephone number issue. He suggested this
factor plus his testimony the police had gone to his father’s house after the
verification request had been made to the Embassy in Kiev influenced the
first tribunal to seek information that the claimant received medical
attention. He suggested the applicant had done everything he could to assist
even to go as far as obtain the court docket no. and the litigants’ names. He
said the information about the Court action was important. He stressed the
refugee test is forward looking and that his evidence established another
element of his fear – the fear of the police which took place after the
claimant had left the Ukraine and after his PIF was
prepared.
[40]
He
submitted the claimant had a legitimate expectation the documents and the
information he provided would be verified, as it was the panel itself that
began the process. He submitted he had produced his medical book, a very
reliable piece of evidence relied upon by other panels showing all his medical
history independent of any refugee claim. There were notations for October 2003
and April 2004 and his counsel submitted he had met his onus that he sought
medical attention on these occasions; further adding doubts to the SIRU
findings.
[41]
He
argued Mr. Matvisyk had provided credible evidence he was injured; the injuries
were consistent with someone who was beaten and the Canadian doctor’s report
gives credence to that testimony.
[42]
He
pointed to the country conditions in the Ukraine: police are
often involved and paid off which is what the claimant alleged. He has an
objective basis for his fear.
The tribunal’s decision
[43]
The
tribunal stated the determinative issues were credibility and state protection.
.
[44]
It
dismissed his claim for protection under section 96 of IRPA as a Convention
Refugee. It found there was no nexus between the five Convention grounds and
his fear from criminal gangs. The tribunal ruled it was assessing the
applicant’s claim under section 97 of IRPA. The tribunal’s finding on
the unavailability of section 96 was not challenged by the applicant’s counsel.
[45]
The
tribunal began its credibility assessment by signalling on what basis it would ground
its finding the applicant’s documents and testimony were not credible. It
stated as follows:
The panel considered the
claimant’s testimony in its entirety and also took into consideration the
claimant’s age, education, cultural differences and the stress of the hearing room
setting that might have impacted on how his testimony was given.
The panel does not find his
testimony credible and does not find his documents credible.
Documents
The first panel sent the
medical extracts to be verified and the information received shows that the
hospital letter is false. The claimant then provided an alleged medical book.
In his testimony, the claimant also testified that the doctor was fired and
that there were court documents, which the first panel wanted verified.
The decision of the first
panel to verify the alleged court documents is not binding on this panel.
However, the onus is on the claimant to present all aspects of his claim.
There were omissions and
inconsistencies, which were not adequately explained.
[46]
Under
the heading “Harm in the Ukraine”, the tribunal stated “The panel finds that
the evidence presented in support of the claimant’s allegations are not
credible and does not establish that the claimant would be subject to harm if
he returns to the Ukraine.”
[47]
To
substantiate that finding, the tribunal canvassed the weaknesses in his
evidence. I note the following in particular:
- He was sure that
the police were supporting the criminal group in February 2004 yet did not
mention this fact in his PIF to which the applicant answered he forgot but
now he thinks it was important to have mentioned it;
- When asked if he
mentioned Ivan’s name to the police, he first said he could not remember;
then testified he recalled telling the police the first name in October
2004 but when asked whether he was sure, he said he was not sure but it
could have been in 2003;
- He said he provided
the police with the doctor’s report to substantiate his complaint; it was
pointed out to the applicant the doctor’s report did not say who was
responsible for the injuries. The tribunal said the claimant did not
answer the question and when asked to answer it, he replied it does not
say so;
- When asked why he
suspected the police, he said they had done nothing about his reports and
had threatened his father when the police came to visit his father after
the verification was launched;
- The tribunal noted
in his answers he kept on expanding the list of persons he feared doing so
not spontaneously but through probing questions by the RPO.
[48]
The
tribunal drew on other elements of his case to enable it to draw an adverse
inference from the omissions in his PIF and inconsistency in his testimony
“which negates his overall credibility”.
[49]
A
few examples suffice:
- The confused
answers he gave as to whether the police learned about him being in Canada due to
the Embassy’s verification;
- Omission from his
PIF it was well known police and businesses cooperated with drug dealers;
- Omission from his
PIF the director of the company he worked for may be involved with the
drug dealers.
[50]
The
tribunal drew an implausibility his friends living in the city with him did not
know Ivan was threatening him.
[51]
Under
the heading Medical Report, the tribunal wrote in part:
The claimant testified that
when he informed his father that the response of the medical report came back
false, his father decided to find the doctor and ask him if he could provide
some documents. The claimant testified that the doctor had been fired and there
had been a court case and the court was already settled. His testimony was that
his father had informed him after March 2006 and by August 2006, it was
finalized.
The last panel member had
requested that the claimant present court documents, but counsel had written
that the claimant’s family was not able to get the court documents and had
asked the Board to acquire them.
The panel finds that the onus
is on the claimant to present all aspects of his claim. The Board is not an
investigative body to go and dig up aspects of the claim and the decision of
the previous member is not binding on this panel.
[52]
It
then discussed the assessment from his doctor in Canada but did not
give it any weight because it was based on the facts found not to be credible.
[53]
The
tribunal then discussed the fact the applicant had not listed his many trips to
Poland and his return.
Some trips were in March 2003, others in March 2004 and in September 2004. His
explanation was that he could not remember as he was under stress. The tribunal
found his explanations unsatisfactory and drew an adverse inference from all
the omissions.
Analysis
(a) The Standard of Review
[54]
It
is settled law questions of procedural fairness are not subject to a pragmatic
and functional analysis. Generally, they are questions of law and the standard
of review is correctness. See GRK Fasteners v. Leland Industries Inc.,
2006 FCA 118.
[55]
Counsel
for the applicant’s other argument is that the tribunal’s credibility findings
were unsupported by the evidence and/or based on irrelevant considerations.
Once again it is settled law that the RPD’s credibility findings are findings
of fact which are reviewable under section 18.1(4)(d) of the Federal Courts
Act which provides this Court “may grant relief … if it is satisfied that
the federal board, commission or other tribunal based its decision or order on
an erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it.”
[56]
The
Supreme Court of Canada said the following about this provision in Mugesera
v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 100, at paragraph 38:
38 On questions of fact, the
reviewing court can intervene only if it considers that the IAD "based its
decision or order on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it" (Federal
Court Act, s. 18.1(4)(d)). The IAD is entitled to base its decision on
evidence adduced in the proceedings which it considers credible and trustworthy
in the circumstances: s. 69.4(3) of the Immigration Act. Its findings are
entitled to great deference by the reviewing court. Indeed, the FCA itself has
held that the standard of review as regards issues of credibility and relevance
of evidence is patent unreasonableness: Aguebor v. Minister of Employment
& Immigration (1993), 160 N.R. 315, at para. 4.
[57]
Recently,
the Supreme Court of Canada reformed the law surrounding the standards of
review. In Dunsmuir v. New Brunswick, 2008 SCC 9, it
collapsed the patently unreasonable standard into the reasonableness standard. Dunsmuir
dealt with a provincially constituted administrative tribunal, not a federal
tribunal which is the status of the RPD. The Supreme Court of Canada has yet to
rule on what impact its reform will have, if any, on the statutory provision of
section 18.1(4)(d) of the Federal Courts Act. I hold the view that a
breach of this statutory provision renders a decision unreasonable.
(b) Discussion and conclusions
[58]
Counsel
for the applicant argued the tribunal breached natural justice when it “failed
to pursue the second AIF to obtain copies of the Ukrainian court case.” He
argues the tribunal erred in the reason it expressed for not doing so – that it
was not an inquisitorial body. He relies on the Federal Court of Appeal’s
recent judgment in the Minister of Citizenship and Immigration v. Daniel
Thamotharem, 2007 FCA 198, at paragraphs 43 to 46.
[59]
With
respect, I do not read those paragraphs to sustain the view Justice Evans
expressed on behalf of the Federal Court of Appeal, the RPD’s process is
inquisitorial. The view he expressed in those paragraphs is more nuanced than
counsel states.
[60]
In
any event, that is not the nub of the tribunal’s ruling. Examining the
tribunal’s ruling as a whole what the tribunal ruled is that it was not going
to grant another adjournment to await the results of the second AIF. While not
specifically referring to section 48 of the RPD’s Rules of procedure, the
substance of her ruling shows the tribunal considered relevant factors. I see
no error in the tribunal’s findings. The onus is on the applicant to provide
credible evidence to support his claim; he cannot delay proceedings for two
years to produce that evidence. In addition, the first tribunal specifically
ruled it was the responsibility of the second tribunal to decide whether to
carry on.
[61]
The
second point argued by the applicant’s counsel also fails. As the Supreme Court
of Canada has held the RPD is owed “great deference” on its findings of fact.
The tribunal grounded its credibility findings on a great number of omissions
and inconsistencies. It assessed the quality of the applicant’s testimony and
found it wanting. I grant that on one or two points the tribunal may have
slipped but taken as a whole that decision could not be said to be clearly
irrational or unsupported by the evidence.
[62]
For
these reasons, this application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed; no certified questions were proposed.
“François Lemieux”
___________________________
Judge
Email this Content