Federal Court Decisions

Date: 20060823

Docket: IMM-6948-05

Citation: 2006 FC 1018

Toronto, Ontario, August 23, 2006

PRESENT:     The Honourable Mr. Justice Hughes

BETWEEN:

BISI YETUNDE AJAYI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               The Applicant Bisi Yetunde Ajayi is a Nigerian woman.  She claims to have been married in Nigeria to a man who was an abusive husband; he beat her on several occasions.  As a result, the Applicant left Nigeria and claimed protection in Canada as a Convention refugee.  The Applicant’s claim was considered at an oral hearing before a Member of the Immigration and Refugee Board.  The Applicant was represented by counsel at that hearing.  That Member, in a written decision dated October 18, 2005, rejected the claim.  Judicial review of that decision by this Court is now sought.

[2]               The Member found that the Applicant’s allegations were not credible, that there was a lack of any supporting evidence, that there was no satisfactory explanation for the lack of supporting documents and that the Applicant had failed to demonstrate an objective fear.  Accordingly, the Member was not persuaded that there existed a serious possibility of persecution, or of a risk to her life, or risk of cruel and unusual punishment or a danger of torture should she return to Nigeria.

[3]               The Applicant raises essentially the following issues:

1.                  The Member ignored or misconstrued the evidence.

2.                  The Member made a palpable error in stating, in the Reasons for Decision, that the Applicant had two and a half years to gather evidence, whereas it was only one year and nine months; and

3.                  The Member should have adjourned the hearing so as to permit the Applicant to gather further evidence and failure to do so was a denial of natural justice.

[4]               The law is clear as to the standard of review to be applied by this Court, on findings of credibility and findings based on the evidence, the standard is that of patent unreasonableness (Canada (MCI) v. Mugesera, 2005 SCC 40 at para 38).  At the hearing before this Court, counsel for both parties acknowledged that this was the correct standard.

[5]               On the other hand, if there is a failure of natural justice, then no deference is to be afforded to the Member’s decision (Canadian Union of Public Employees (CUPE) v. Ontario (Minister of Labour), 2003 SCC 29).

[6]               Turning first to the issue in respect of natural justice.  Section 100(4) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 and Rule 7 under that Act puts the onus on the claimant to provide documents establishing the elements of the claim made; the burden of proving the claim rests with the claimant.  The Claim Information screening form provided to the claimant in this case included a notice that the claimant should file evidence and be prepared to testify with respect to all elements of the claim.  The Applicant was represented by counsel and had ample time to prepare her case.  A review of the transcript at the hearing shows that neither the Applicant nor her counsel requested an adjournment so as to gather further evidence.  There was no denial of natural justice.

[7]               As to the findings of credibility and findings on the evidence a review of the record does not demonstrate that the Member committed any reviewable error.  Whether the Applicant had two and a half years or one year and nine months to prepare her case is immaterial.  The transcript shows, at pages 25 and again at 34, that the Applicant agreed with the Member that more than two years had elapsed since she had been in Canada.  The Applicant had more than ample time to prepare her case.  A review of the Record confirms that no material evidence was ignored or misconstrued by the Member.  The Member addressed the relevant evidence and made no patently unreasonable error in arriving at the findings set out in the Reasons.

[8]               Accordingly, the application will be dismissed.  There is no question for certification.  No order will be made as to costs.

JUDGMENT

UPON application made to this Court on the 23^rd day of August, 2006, for judicial review of a decision of a Member of the Immigration and Refugee Board denying the Applicant’s claim for protection as a Convention Refugee;

            AND UPON reading the Records filed herein and hearing submissions from counsel for the parties;

            AND for the Reasons delivered herewith;

            THIS COURT ADJUDGES that

1.                  The application is dismissed;

2.                  There is no question for certification; and

3.                  There is no order as to costs.

“Roger T. Hughes”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-6948-05

STYLE OF CAUSE:                          Bisi Yetunde Ajayi

                                                            v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      August 23, 2006

REASONS FOR JUDGMENT

AND JUDGMENT:                          HUGHES J.

DATED:                                             August 23, 2006

APPEARANCES:

SOLICITORS OF RECORD: