BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
INTRODUCTION
[1] The Applicant is a citizen of Columbia. He fled that country for the United States on the 20th of April, 1999, alleging that he was in fear for his life at the hands of the ELN, a guerrilla organization in Columbia. He sojourned in the United States until the 27th of August, 2004. During his sojourn in the United States, the Applicant made an unsuccessful asylum claim and was ordered to leave that country on the 25th of September, 2003. Some months beyond the date on which he was required to leave the United States, and while he was still there illegally, he alleges he was first advised of Canada's Convention refugee programme. He alleges that his loss of status in the United States, his fear of return to Columbia and his new knowledge of Canada's refugee programme led him to come here. On the 27th of August, 2004, he arrived in Canada and asserted a Convention refugee claim or a claim for like protection.
[2] By decision dated the 12th of April, 2005, the Applicant's claim to Canada's protection was rejected by the Refugee Protection Division (the "Board") of the Immigration and Refugee Board. These reasons follow the hearing of a portion of his application for judicial review of the Board's decision.
BACKGROUND
[3] The Applicant was a business person in Columbia. Through an organization called the Friends of the Center of Manufacturing and Design, he supported the mayoral candidacy of one Juan Carlos Mocado in elections scheduled to be held in October of 1995. His objective and that of the organization to which he belonged was, through their political intervention, to improve the violent social conditions that affected the Columbian business environment. The Applicant attests that late in April of 1995, when his political involvement had become public knowledge, he received a telephone call from an individual who identified himself as a member of the ELN. The caller alleged that the Applicant was supporting a "corrupt candidate". For that reason, the caller demanded the Applicant make a substantial payment to the ELN in support of their opposing candidate.
[4] The Applicant alleges that, while he was never confronted face to face by members of the ELN, threats against him escalated to the point where he felt compelled to leave Columbia for fear for his life.
THE DECISION UNDER REVIEW
[5] The Board set forth its conclusion with regard to the Applicant's claim in the following terms:
I find that there is insufficient credible or trustworthy evidence to support the allegations that the claimant has put forward to advance his claim. In particular, I do not believe that the claimant is of interest to the ELN or that he would be at risk if he were to return to Columbia. My findings that the ELN had no interest in the claimant are supported by several factors.[1]
[6] The Board found the Applicant's evidence not to be credible or trustworthy, based largely on implausibilities in his evidence. Secondly, it found the Applicant's three departures from Colombia after the alleged first contact from the ELN and before his eventual departure in April of 1999, followed in each case by a return to Columbia, to be inconsistent with a genuine subjective fear of persecution. Thirdly, in light of its finding regarding the Applicant's own credibility, it determined not to give any weight to claim-specific documentation provided by the Applicant in support of his claim, including a psychologist's report where it accepted the diagnosis but rejected its link to the same story that the Board itself saw fit to reject. Finally, the Board determined the Applicant's delay in coming to Canada from the United Statesafter his asylum claim there was rejected, was not consistent with a genuine fear of persecution.
THE ISSUES
[7] At the opening of the hearing before the Court, counsel for the Applicant sought leave to present a novel issue regarding standard of review which, he acknowledged, was not raised in his written materials before the Court. Counsel for the Respondent urged the Court not to consider the issue. In Arora v. Canada(Minister of Citizenship and Immigration)[2], I wrote at paragraphs 8 and 9 of my reasons:
...Neither on the face of the application for judicial review nor in the applicant's affidavit which would appear to have been sworn and filed well after the Tribunal Record had been received by counsel for the applicant, is the failure to assess the applicant in respect of his second identified occupation noted to be an issue. ...
...If, as here, the applicant were able to invoke new grounds of review in his memorandum of argument, the respondent would conceivably be prejudice[d] through failure to have an opportunity to address the new ground in her affidavit or, once again as here, to at least consider filing an affidavit to address the new issue. ...
The same might be said here. Indeed, the new issue that counsel for the Applicant proposed to bring forward at the hearing before the Court, was not even identified in the Applicant's written Memorandum of Argument. Thus, the potential prejudice to the Respondent, and further, to a fair disposition of the application for judicial review was, I am satisfied, substantial.
[8] In the result, I determined not to hear argument on the additional issue proposed.
[9] Procedural issues surrounding "reverse-order questioning" or the Chairperson's Guideline 7 were raised on behalf of the Applicant. Those issues were bifurcated from the substantive issues on this application for judicial review and were heard by a different judge. They will be the subject of separate reasons and a separate order.
[10] The issues then remaining before me are an alleged denial of natural justice through failure to allow the Applicant's counsel to intervene during the course of questioning of the Applicant by the presiding Board Member, reliance on plausibility findings alone to support a negative determination in respect of the Applicant's credibility and therefore the well-foundedness of his fear, and finally, failure on the part of the Board to give any weight to the Applicant's case-specific supporting documentation.
ANALYSIS
a) Standard of Review
[11] A pragmatic and functional analysis to determine the standard of review is not applicable in respect of a natural justice or procedural fairness issue. In Shaker v. Canada(Minister of Citizenship and Immigration[3], my colleague, Justice Beaudry, by reference to Canadian Union of Public Employees v. Ontario(Minister of Labour)[4] wrote:
When the Court is assessing allegations of procedural fairness, it is not necessary for the Court to conduct a pragmatic and functional analysis and determine the appropriate standard of review... . If the Court concludes that there has been a breach of procedural fairness, no deference is due and it will set aside the decision.
[citation omitted]
[12] The Board's determinations regarding the Applicant's credibility and thus the well-foundedness of his claim, and regarding the weight to be given to the Applicant's case-specific documentation are, I am satisfied, determinations to which great deference should be given. Thus, the appropriate standard of review is patent unreasonableness.[5]
b) The natural justice or procedural fairness issue
[13] During the course of the hearing before the Board and during the questioning of the Applicant by the presiding member, counsel for the Applicant, who was the same counsel who appeared before me, attempted to intervene to, in his word, "clarify" the situation where he perceived the claimant, here the Applicant, was misunderstanding the presiding member's questioning. The situation became somewhat confused with the interpreter who was present at the hearing also intervening. At one point, the presiding member, addressing counsel, stated:
And so I just want to talk, I just want the claimant to answer the questions. If you could reserve your comments, then I would really appreciate that.
The situation did not immediately improve. Very shortly thereafter, the presiding member again took the initiative. He is recorded as saying:
Counsel. Counsel. Could you please let me proceed with this? I have got this page. I have got it here. I do, I do prepare my cases quite well. I read almost every page. So I just wanted to ask the claimant. If there are any comments you want to make, Counsel, you will do it later, when your time comes. Thank you.[6]
[14] The Applicant apparently found the exchange upsetting. In his affidavit that is before the Court, he attests:
When the Panel Member began to ask me questions he asked when I had made my refugee claim, whether it was when I came into Canada at the port of entry or later. I answered that it was 28 days later. By this I meant that I had filed the Personal Information Form (PIF) which contained the details of my case, with the Refugee Board 28 days after being issued it by Citizenship and Immigration Canada (CIC), as this is the deadline to file the PIF. My counsel interjected and pointed out to the Panel that in fact I had claimed at the port of entry and this was recorded in the PIF and was also shown on the Certificate of Eligibility that CIC issued to me when I made my claim. The Panel became quite agitated by my counsel's comments, and asked my counsel in a loud and stern voice to not interrupt him any more. I was quite alarmed at this exchange. I felt very intimidated being questioned by the person who was the judge in my case and this feeling became heightened when it appeared to me that the judge was angry. For the rest of the hearing I was feeling very nervous because I believed the judge was angry with me and with my lawyer. I was also very surprised that the person who was the judge in my case would also be the one who questioned me about my case and that my lawyer who I had retained to represent me was unable to assist me through the course of the Panel's questioning as he had been told to remain quiet by the Panel. ...[7]
[15] Only the transcript and the Applicant's affidavit were referred to before the Court. It was, thus, impossible for the Court, at hearing, to assess the tone of the exchange in question. That being said, on the basis of the transcript, the exchange appeared to be entirely civil and, indeed, when the dust settled, the outcome of the presiding member's immediate line of questioning was favourable to the Applicant. Late-filing of the Applicant's claim in Canada ceased to be an issue before the Board since the Applicant's claim to protection was asserted at the port of entry and that had become clear.
[16] There are circumstances where intervention of a judge or tribunal member during questioning by counsel and, during questioning by a board member, as here, by counsel, can prove to be truly helpful in promoting understanding or clarifying a situation. That being said, intervention during another's questioning is a delicate issue and interventions should be made very carefully or "judiciously". On the material before the Court, I cannot conclude that any breach of natural justice or procedural fairness occurred in the course of the hearing of this matter before the Board that would warrant the intervention of this Court.
c) The Applicant's credibility and the well-foundedness of his fear - implausibility findings
[17] While the reasons of the Board in this subject area are not framed in terms of implausibilities, I am satisfied that the Board simply found the Applicant's story to be implausible in the light of country conditions in Columbia at the relevant time and, in particular, in light of the profile of the ELN in Columbia. Similarly, the Board found the Applicant's actions in leaving from and returning to Columbia on three (3) separate occasions during the period of his alleged intimidation by the ELN to contribute to the implausibility of his story. In Divsalar v. Canada(Minister of Citizenship and Immigration)[8], my colleague Justice Blanchard wrote at paragraph 24 of his reasons:
Further, it is accepted that a tribunal rendering a decision based on a lack of plausibility must proceed with caution. I find it useful to reproduce the following passage from L. Waldman, Immigration Law and Practice, ... which deals with plausibility findings and the impact of documentary evidence that may be before the tribunal:
...Plausibility findings should only be made in the clearest of cases where the facts as presented are either so far outside the realm of what could reasonably be expected that the trier of fact can reasonably find that it could not possibly have happened, or where the documentary evidence before the tribunal demonstrates that the events could not have happened in the manner asserted by the claimant. Plausibility findings should therefore be "nourished" by reference to the documentary evidence. Moreover, a tribunal rendering a decision based on lack of plausibility must proceed cautiously, especially when one considers that refugee claimants come from diverse cultures, so that actions which might appear implausible if judged by Canadian standards might be plausible when considered within the context of the claimant's background.
[citation omitted]
[18] Against the foregoing, and on reviewing the documentary evidence regarding country conditions that was before the Board, the Applicant's narrative forming part of his Personal Information Form and his testimony, I am satisfied that the documentary evidence in fact "nourishes" the Board's determination and that this is indeed one of the "clearest of cases" where the facts as presented by the Applicant are "...so far outside the realm of what could reasonably be expected..." that the Board could reasonably find that the Applicant's experiences could not have transpired in the manner asserted by him. Thus, against a standard of review of patent unreasonableness, the Board made no reviewable error in deciding as it did in respect of the Applicant's credibility and the well-foundedness of his fear.
d) Failure to give weight to the Applicant's case specific documentation
[19] In this regard, the Tribunal wrote:
The claimant submitted documents in support of his claim, however, because I now have the claimant in front of me and I have tested the truth of the story and found it lacking credibility, therefore, I do not give any weight to a document that relies on that same story I have found not credible. With regard to the psychologist's report, I accept the doctor's report, however, given that the psychological report is based on the claimant's story, which I found not credible, I put no weight on the report.[9]
[20] During the hearing before the Board, the presiding member questioned the Applicant about the most significant of the Applicant's documents, including the psychologist's report. The documents in issue were all solicited by the Applicant. The providers of the documents had no first hand knowledge of the Applicant's experience with the ELN in Columbia, rather, they relied on the Applicant for their knowledge. In the circumstances, where the Board chose not to believe the Applicant's story, and I have concluded that that choice by the Board was open to it, I am satisfied that it follows that it was equally open to the Board, once again against a standard of review of patent unreasonableness, to reject the Applicant's documentary evidence from sources that derived their knowledge of the Applicant's alleged difficulties from the Applicant himself.
CONCLUSION
[21] In the result, this application for judicial review will be dismissed, to the extent that it is based on issues other than those related to "reverse order questioning" or Chairperson's Guideline 7. At the close of hearing, when consulted, neither counsel recommended certification of a question. I am satisfied that this matter turns on its own particular facts. No question will be certified.
"Frederick E. Gibson"
Judge
Ottawa, Ontario
April 10, 2006.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2709-05
STYLE OF CAUSE: GUILLERMO GUTIERREZ TRUJILLO
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 15, 2006
REASONS FOR ORDER: GIBSON J.
DATED: April 10, 2006
APPEARANCES:
Matthew Jeffery for the Applicant
John Provart for the Respondent
SOLICITORS OF RECORD:
Matthew Jeffery for the Applicant
Barrister & Solicitor
Toronto, Ontario
John H. Sims, Q.C. for the Respondent
Deputy Attorney General of Canada
Toronto, Ontario
[1] Tribunal Record, page 6.
[2] [2001] F.C.J. No. 24 (QL).
[3] 2006 FC 185, February 10, 2006, [2006] F.C.J. No. 201.
[4] [2003] 1 S.C.R. 539.
[5] See : Chowdhury v. Minister of Citizenship and Immigration, 2006 FC 139 at paragraph [12], February 7, 2006, [2006] F.C.J. No. 187.
[6] Tribunal Record, pages 184 and 185.
[7] Application Record, page 17.
[8] 2002 FCT 653, June 10, 2002, [2002] F.C.J. No. 875.
[9] Tribunal Record, page 11.