Ottawa, Ontario, July 25, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LEONOR STELLA MERIZALDE BARRETO
LAURA CRISTINA BERMUDEZ MERIZALDE
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant and her minor daughter had their refugee claim dismissed by the Immigration and Refugee Board (Board). Their claim was based on their Columbian citizenship and alleged fear of persecution from the FARC, a guerrilla terrorist organization. This is the judicial review of the Board's decision.
II. Facts
[2] The principal Applicant claimed that she had been raped in August 1992 by the FARC. In the face of alleged threats by that organization, she made a public denunciation of the event. The principal Applicant claimed that she had been threatened by the FARC via letters and telephone calls subsequent to her assault and denunciation.
[3] In late 1992 the Applicants fled to the United States where their claim for asylum was denied. They remained in the United States hoping for an amnesty but eventually fled to Canada in 2004 to seek refugee protection.
[4] The Board did not accept the claim for refugee protection for the following reasons, all of which touch on credibility:
· the principal Applicant omitted from her PIF a material allegation to which she now testified;
· the principal Applicant's story contained material inconsistencies; and
· there were significant discrepancies between the principal Applicant's evidence given to U.S. authorities and the evidence adduced before the Board.
[5] At issue in this judicial review is the decision of the Board to give no weight to letters alleged to have come from the FARC. In so doing, the Board relied on its experience from other cases to conclude that the FARC materials may not have come from the FARC.
[6] The Applicants challenged the Board's negative credibility findings and further contend that the Board's rejection of the FARC letters was a breach of the requirements of natural justice.
III. Analysis
[7] The Applicants' principal argument in respect of the credibility findings is that the Board applied the wrong legal test. This argument turns on the following excerpt:
... even applying the relatively low threshold of probability set down by the Court in Adjei, the claimant would not face a serious possibility of harm thirteen years after she was the victim of a random rape.
[8] The Applicants seize on the phrase "low threshold of probability" to argue that the wrong legal test was applied. The legal test for whether there is a basis for a refugee claim is the "reasonable" or "serious possibility of harm" should an applicant be returned to their home country.
[9] The Applicants' argument is not persuasive. The argument ignores the whole of the quote and, most particularly, its operative conclusion of "not face a serious possibility of harm ...". This is the very test in Adjei v. Canada(Minister of Employment and Immigration), [1989] F.C.J. No. 67 (QL), [1989] 2 F.C. 680.
[10] With regard to the submission that there was a denial of natural justice in giving no weight to the alleged FARC letters, the Applicants argue that the Board failed to follow Rule 18 of the Refugee Protection Division Rules which read:
| 18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to (a) make representations on the reliability and use of the information or opinion; and (b) give evidence in support of their representations. |
18. Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la personne protégée et le ministre -- si celui-ci est présent à l'audience -- et leur donne la possibilité de : a) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion; b) fournir des éléments de preuve à l'appui de leurs observations. |
[11] A review of the transcript (pages 262-263) shows that the Board notified the Applicants that it had doubts about the FARC letters, the reasons for the Board's doubts, the specialized knowledge being used, and that counsel was permitted an opportunity to respond (counsel admitted that he "may [choose] not" to respond).
[12] It is difficult to see what more the Board could have done, regardless of Rule 18. The Board certainly complied with Rule 18.
[13] There is an issue of whether, since the Board gave the letters no weight, the Board had "used" its specialized knowledge (see Qu v. Canada(Minister of Citizenship and Immigration), [2006] F.C.J. No. 124 (QL), 2006 FC 107). I need not decide that issue here because, if specialized knowledge was used, it was used in a manner consistent with Rule 18 and with the principles of natural justice.
IV. Conclusion
[14] For these reasons, this judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4381-05
STYLE OF CAUSE: LEONOR STELLA MERIZALDE BARRETO
LAURA CRISTINA BERMUDEZ MERIZALDE
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
| Mr. Jack C. Martin
|
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| Ms. Asha Gafar
|
SOLICITORS OF RECORD:
| JACK C. MARTIN Barrister & Solicitor Toronto, Ontario
|
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| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|