Federal Court Decisions

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Date: 20050623

Docket: IMM-7210-04

Citation: 2005 FC 892

Toronto, Ontario, June 23rd, 2005

Present:           The Honourable Mr. Justice Campbell                                

BETWEEN:

                                           JUAN DANILO MONTENEGRO LEON

                                               ESPERANZA JUNCA RODRIGUEZ

                                         DAVID SALOMON JUNCA RODRIGUEZ

                                                                                                                                           Applicants

                                                                           and

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                In the present case, the Applicant claims refugee protection based on his subjective and objective fear of persecution from FARC in Columbia. In my opinion, the decision rendered by the Refugee Protection Division (the "RPD") with respect to the Applicants' claim is perverse.

[2]                In the course of the hearing before the RPD, under questioning, first by the RPO, and then by Counsel for the Applicant, the Applicant gave his detailed evidence with respect to his claim. While his evidence was carefully tested by the RPO, with respect to the Applicant's credibility the RPO made the following statement in his written submissions:

The claimant answered all questions clearly and directly and the answers were consistent with his PIF, county conditions and with similarly situated people. The claimant's responses were straightforward and spontaneous and there appeared to be no attempts to embellish his story to improve the claim.

(Tribunal Supplementary Record, p. 151A)

[3]                While the transcript of the hearing before the RPD reflects that the Presiding Member had a number of questions with respect to the details of the Applicant's evidence, at no time was the Applicant confronted with the suggestion that he might be lying about the essential elements of his claim. However, in the decision rendered, the Presiding Member concludes that the Applicant is guilty of fabricating evidence with respect to his claim, and, indeed, the Presiding Member goes even further. With respect to a single incident about which the Applicant's mother made a police report in Columbia, the Presiding Member found that she was, together with her son, part of what I described during the course of the oral hearing as a conspiracy of lies.

[4]                To say the least, I find that the failure to give an opportunity to the Applicant to confront the suspicion, which presumably was in the mind of the Presiding Member during the course of the hearing, is not only unfair, but in the circumstances of the present case, constitutes a breach of natural justice.

[5]                For further well substantiated concerns about the quality of the Presiding Member's decision in the present case, I recommend that interested persons read the Applicant's very well-framed and detailed argument filed in the present Application (Applicant's Memorandum of Argument, Applicant's Application Record, p. 161-175).

                                               ORDER

As a result of the breach of natural justice found in the present case, I set the decision aside and refer the matter back to a differently constituted panel for redetermination.

                                                                         "Douglas R. Campbell"                  

                                                                                                   J.F.C.                               


                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                               IMM-7210-04

STYLE OF CAUSE: JUAN DANILO MONTENEGRO LEON

ESPERANZA JUNCA RODRIGUEZ                                                

DAVID SALOMON JUNCA RODRIGUEZ                                                   Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           JUNE 22, 2005

REASONS FOR ORDER

AND ORDER BY :                CAMPBELL J.

DATED:                                  JUNE 23, 2005

APPEARANCES:

Carole Simone Dahan                FOR THE APPLICANTS

Sharon Stewart Guthrie              FOR THE RESPONDENT

SOLICITORS OF RECORD:

Carole Simone Dahan

Barrister & Solicitor

Refugee Law Office

Toronto, Ontario                                   FOR THE APPLICANTS

John H. Sims, Q.C.

Deputy Attorney General of Canada      FOR THE RESPONDENT


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