Date: 20040317
Docket: IMM-4982-03
OTTAWA, Ontario, this 17th day of March, 2004.
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
WILSON MEDINA CASTILLO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ( the "Board"), dated June 9, 2003, which found the applicant not to be a Convention refugee or a person in need of protection.
[2] The Board held that the doctrine of res judicata did not apply to the United Nations High Commissioner for Refugees' (UNHCR) recognition of the applicant as a Convention refugee in 1982, and disagreed that it was barred by res judicta from making a determination with respect to the applicant's 2003 claim against Colombia. At page 4 of its reasons the Board states:
The panel has read Hamdan and does not find it [sic] to deal with the question at issue. The panel proceeded to hear the claim against Colombia. We did so based on the following [sic]. Before the panel was an undated letter from the UNHCR branch office in Canada responding to a query as to the claimant's refugee status. The letter reads, in part,
Mr. Wilson Medina Castillo's father, Floresmiro Medina Santos, was recognized as a refugee in October 1981. Mr. Wilson Medina Castillo (the claimant) was also recognized as a refugee since the recognition was extended to the family and he was a minor child at the time.
Based on the manner in which the refugee protection afforded his father was extended to the claimant, at the time still a child, the panel cannot find that the matter of the claimant's situation in Colombia as an adult is res judica [sic]. Further the claimant, assisted by counsel, when preparing his Personal Information Form (PIF) stated in answer to question 13, that he feared persecution in Colombia and Mexico.
[3] At the hearing, counsel for the applicant conceded that the doctrine of res judicata did not apply to the UNHCR's 1982 recognition of the applicant as a Convention refugee. However, the applicant submitted that the Board erred in law by failing to give this prior refugee status proper weight. The Court's jurisprudence requires only that the Board make reference and consider the prior refugee status. The Board did this, and reasonably dismissed the relevance of this status based on the changed circumstances since 1982 when the applicant was a young boy in Mexico, and obtained refugee status because his father was fleeing persecution in Columbia due to union activities. Accordingly, the Court is satisfied that the Board did not err in failing to grant the applicant refugee status in Canada on this basis.
[4] The Board found that the applicant had travelled to Colombia in 1995 to visit relatives, and had not encountered any problems. His father had also returned to Colombia in 1992 or 1993 and travelled throughout Colombia visiting relatives, without encountering any problems. The applicant testified that none of his father's family in Colombia had experienced problems with the Colombian government or its agents. The Board found the applicant had deliberately attempted to conceal his visit to Colombia by omitting to mention it in his PIF or other immigration documents. The Board concluded that there was insufficient credible evidence to support the applicant's claims. At page 7 the Board held:
The panel lacks credible evidence that the claimant has any political profile in Colombia [...] The claimant spoke about the armed struggle between the guerrillas, paramilitaries and armed forces in Colombia that leaves Colombians living in an unsafe country. The panel accepts that there is much armed violence in that country given the ongoing civil war there. But, given the claimant's lack of involvement with any of the parties in that conflict, given his lack of political profile in Colombia, given his own experiences there in 1995, and given the situation in which the father's family continue to live in Colombia, the panel finds that that to which he may be vulnerable is the generalized violence to which all citizens of that country are vulnerable.
[5] The Court finds that the applicant has not demonstrated that the Board made any unreasonable finding of fact or plausibility in concluding that there is no subjective or objective well-founded fear of persecution or need of protection for the applicant upon returning to Columbia.
[6] For these reasons, this application must be denied.
[7] Neither counsel or the Court consider that this case raises a question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4982-03
STYLE OF CAUSE: WILSON MEDINA CASTILLO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 10, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: March 17, 2004
APPEARANCES:
Mr. Terry Guerriero FOR APPLICANT
Ms. Alexis Singer FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Terry Guerriero FOR APPLICANT
Barrister & Solicitor
London, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto Ontario
FEDERAL COURT
Date: 20040317
Docket: IMM-4982-03
BETWEEN:
WILSON MEDINA CASTILLO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER