IMM-2676-96
OTTAWA, ONTARIO, the 17th day of October, 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN
ESTEBAN NATAN MUNOZ BURGOS,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
O R D E R
The application for judicial review of the decision rendered on July 17, 1996 by the Refugee Division, ruling that the applicant is not a Convention refugee, is dismissed.
| Yvon Pinard |
| J. |
Certified true translation
Christiane Delon
IMM-2676-96
BETWEEN
ESTEBAN NATAN MUNOZ BURGOS,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER
PINARD J.
This is an application for judicial review of a decision rendered on July 17, 1996 by the Refugee Division, which ruled that the applicant, Esteban Natan Munoz Burgos, is not a Convention refugee as defined in section 2(1) of the Immigration Act.
The applicant says he has been deprived of natural justice because he was not represented before the Refugee Division and the documentation used in that tribunal was not first disclosed to him.
The applicant first appeared before the tribunal on June 13, 1996 when it was observed that he was not represented. The tribunal therefore granted him an adjournment to June 19, 1996 to enable him to obtain the services of a lawyer. When the applicant again appeared without a representative, on June 19, 1996, the tribunal, after questioning him on this matter, suggested that he apply for legal aid. The applicant declined the offer, explaining that he did not want to take advantage of the government, and agreed to proceed alone. In the circumstances, given that the notice to appear was delivered and translated in a timely manner to the applicant, and given the decisions rendered in Vargas v. M.E.I. (1994), 79 F.T.R. 290, Angeles v. M.E.I. (January 10, 1990), 89-T-712 and De Korompay v. Ontario Hydro (July 17, 1990), T-377-88, I am of the opinion, on the issue of lack of representation, that the Refugee Division treated the applicant with complete fairness.
As to the documentation put in evidence before the tribunal, it was sufficient that the list of documents included in the reference file be disclosed in advance to the applicant, as was done. As to the remainder of the documentary evidence, not only did the applicant not complain of its use during the hearing before the tribunal, but the transcript of the recording of the hearing shows that he even responded to it.
In the circumstances, the applicant"s argument based on a denial of natural justice is without merit.
However, the essential contention by the applicant, as it was in Vasquez v. M.C.I. (June 4, 1997), IMM-2667-97, is that the tribunal conducted a superficial and selective analysis of the documentary record in order to reject his otherwise uncontradicted testimony. The tribunal did in fact prefer the documentary evidence indicating that "[Translation ] fundamental and lasting changes have occurred in Chile since 1989" to the testimony of the applicant. The tribunal based its decision on the documentary evidence that the social and political situation had become sufficiently normalized in Chile that the Office of the United Nations High Commissioner for Refugees and the Office français de protection des réfugiés et des apatrides [French Office for the protection of refugees and stateless persons] no longer recognized refugees from Chile. The tribunal found that "[Translation ] these changes make" the applicant"s story "improbable".
In Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, Décary J.A., for the Federal Court of Appeal, described the applicable test for judicial restraint in regard to a finding of credibility by such a tribunal, at page 316:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
In M.E.I. v. Zhou (July 18, 1994), A-492-91, Linden J.A., for the Federal Court of Appeal, confirmed that the tribunal may accord greater weight to the documentary evidence that is submitted than to the applicant"s testimony:
| We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed. |
Noël J. of this Court has rendered two decisions to the same effect, in Victorov v. M.C.I. (June 14, 1995), IMM-5170-94, and Andrade et al. v. M.C.I. (May 5, 1997), IMM-2361-96, the latter decision being quite recent. In Victorov, the Court commented as follows:
| I also reject the applicants' argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did. |
In Andrade, where both the applicants were citizens of Chile, Noël J. wrote:
| The applicants have not questioned the facts as recounted by the tribunal. However, they contend that the tribunal rejected their claims on the sole basis of the documentary evidence. According to the applicants, the tribunal should have accepted the uncontradicted testimony of the principal applicant. |
| I am not of this opinion. The tribunal's decision is not based solely on the documentary evidence. It was the events recounted by the principal applicant, when considered having regard to the documentary evidence, that led the tribunal to conclude that his account was implausible. After considering the testimony of the principal applicant, I conclude that the tribunal was entitled to draw that conclusion. |
| The applicants also contend that the tribunal ignored the documentary evidence that could have confirmed the events they stated they had experienced. I am rather of the view that the tribunal responded to the invitation extended to them by the officer responsible for verification to assess the logic of the principal claimant's account in light of the conditions suggested by the weight of the documentary evidence. There is nothing to suggest that in so doing the tribunal did not lend an attentive ear to all the evidence that was before it. |
In the case at bar, I am of the opinion that the applicant has failed to discharge the onus on him of demonstrating that the inferences drawn by the Refugee Division, a specialized tribunal, could not reasonably be drawn. It is apparent from the evidence as a whole, including the transcript of the hearing before the tribunal, that the tribunal based its decision on significant evidence on the record and that it could therefore reasonably draw the conclusion that it did. Although the documentary evidence as a whole concerning Chile does not always disclose a situation as "rosy" as that emerging from the tribunal"s decision, there was nonetheless sufficiently reliable evidence to sustain the decision.
Accordingly, since the applicant has not persuaded me that the tribunal committed any error that might warrant the intervention of this Court, the application for judicial review is dismissed.
OTTAWA, Ontario
October 17, 1997
| Yvon Pinard |
| J. |
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. IMM-2676-96 |
| STYLE: ESTEBAN NATAN MUNOZ BURGOS et al. v. M.C.I. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 9, 1997 |
REASONS FOR ORDER OF PINARD J.
| DATED: October 17, 1997 |
APPEARANCES:
| MIMI BEAUDRY FOR THE APPLICANT |
| SÉBASTIEN DASYLVA FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| MIMI BEAUDRY FOR THE APPLICANT |
MONTRÉAL, QUEBEC
| GEORGE THOMSON FOR THE RESPONDENT |
DEPUTY ATTORNEY GENERAL
OF CANADA