Citation: 2004 FC 1037
Toronto, Ontario, July 26th, 2004
Present: The Honourable Madam Justice Snider
BETWEEN:
JORGE ALBERTO RODRIGUEZ COITINHO
MARIA CHRISTINA SANCHEZ GONZALEZ
BARRIOS SANCHEZ ALDO ISMAEL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Jorge Alberto Rodriguez Coitinho, the principal Applicant, is a 40 year old citizen of Uruguay. He came to Canada in 2001 with his wife, adult son and five minor children. The Applicants claim to have a well-founded fear of persecution in Uruguay because of the principal Applicant's and the adult son's perceived political opinion and union membership. The perceived agents of persecution are fellow members of the SUNCA union (Sindicato de la Construccion) who allegedly resorted to extraordinary means to force its members to vote for a political party that was not supported by the principal Applicant and his son.
[2] In its decision dated June 23, 2003, the Immigration and Refugee Board, Refugee Protection Division (the "Board") rejected the claims of the Applicants on the basis that they had "not discharged the onus of providing clear and convincing proof of the state's inability or unwillingness to protect them".
[3] The Applicants seek judicial review of this decision.
Issues
[4] The sole and determinative issue is the following:
1. Did the Board err by ignoring relevant evidence, misconstruing the evidence before it or making patently unreasonable findings of fact in determining that state protection was available to the Applicants?
Analysis
[5] According to the Board, state protection was the determinative issue in the Applicants' claim. The Respondent submits that the Board's decision contains no reviewable error. The Respondent rightly asserts that the Board was entitled to prefer the documentary evidence to that of the Applicants' (Zhou v. Canada (Minister of Employment and Immmigration), [1994] F.C.J. No. 1087 (F.C.A.) (QL) and that the presumption of a claimant's veracity can be rebutted by documentary evidence that fails to contain any mention of what one would normally expect it to mention (Adu v. Minister of Employment and Immigration, [1995] F.C.J. No. 114 (F.C.A.) (QL). However, in my view, the reasons of the Board reveal at least two reviewable errors.
[6] The first of the errors arises when the Board misconstrued the investigative work done by the Ministry of Labour. It is clear from reading the documentary evidence that cases of union discrimination that the Ministry has investigated concerned employer discrimination against a union employee - not political corruption within unions themselves. Reliance on this misconstrued evidence to support a finding of state protection is, therefore, erroneous.
[7] The Board goes on to make a most disturbing finding. In the absence of stating that the Applicants' evidence is not credible, the Board concludes that it "gives more weight to the documentary evidence because it comes for (sic) reputable, knowledgeable sources, none of whom have any interest in the outcome of this particular refugee hearing". This statement is tantamount to stating that documentary evidence should always be preferred to that of a refugee claimant's because the latter is interested in the outcome of the hearing. If permitted, such reasoning would always defeat a claimant's evidence. The Board's decision in this case does not inform the reader why the Applicants' evidence, when supposed to be presumed true (Adu, supra), was considered suspect. Further, this reasoning cannot even stand on the facts of this case.
[8] The documentary evidence that the Board suggests is neutral includes statements made by the SUNCA union President and Secretary-General - leaders of the union whose members the Applicants claim threatened and persecuted them. How can the Board suggest that the SUNCA President and Secretary-General are disinterested in the subject matter of the hearing? On what basis could the Board member imply that these individuals are able to comment objectively and dispassionately on serious allegations against members of the union they represent? When this evidence was put to the principal Applicant at the hearing, he replied: "Well, of course they're not going to accept saying they are threatening." This explanation was not considered and ought to have been if the Board intended to place so much weight on this evidence.
[9] In summary, the Board misconstrued evidence. It also provided no intelligible reason for preferring the documentary evidence from the SUNCA officials to that of the Applicants. These errors render the decision patently unreasonable. Accordingly, the decision cannot stand.
[10] In a constitutional, multi-party democracy such as Uruguay, it is difficult to believe that state protection would not be available to the Applicants. However, such a conclusion can only be made after a careful consideration of the evidence; that was not done in this case. Accordingly, the application for judicial review will be allowed and the matter sent back to the Board for redetermination.
[11] Neither party requested that a question of general importance be certified. None will be certified.
ORDER
THIS COURT ORDERS that:
1. The application is allowed;
2. The matter is sent back to a different panel of the Board for re-consideration; and
3. There is no question for certification.
"Judith A. Snider"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5710-03
STYLE OF CAUSE: JORGE ALBERTO RODRIGUEZ COITINHO
MARIA CHRISTINA SANCHEZ GONZALEZ
BARRIOS SANCHEZ ALDO ISMAEL
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 26, 2004
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
APPEARANCES BY:
J. Byron M. Thomas For the Applicants
Stephen H. Gold For the Respondent
SOLICITORS OF RECORD:
Byron M. Thomas
Barrister & Solicitor
Toronto, Ontario For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040726
Docket: IMM-5710-03
BETWEEN:
JORGE ALBERTO RODRIGUEZ COITINHO
MARIA CHRISTINA SANCHEZ GONZALEZ
BARRIOS SANCHEZ ALDO ISMAEL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER