Date: 199990805
Docket: IMM-5802-98
Between:
SUBRAMANIAM THAMBITHURAI,
Plaintiff,
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
Judicial review of the decision on October 19, 1998 by Messrs. Giuseppe Manno and Léon Graub of the Refugee Division of the Immigration and Refugee Board in respect of case No. M97-03055.
[Section 82.1 of the Immigration Act]
ORDER AND REASONS FOR ORDER
NADON J.
[1] The application for judicial review is dismissed. As I indicated to counsel for the plaintiff at the hearing, I cannot, with respect, understand why leave was given by a judge of this Court.
[2] The plaintiff"s memorandum filed in support of the application for judicial review is devoid of content. In his memorandum the plaintiff does not explain, and in fact makes no attempt to explain, why the subject decision should be set aside. The memorandum only contains general allegations and statements made against the Refugee Division and the Federal Court.
[3] The following are a few examples which, in my opinion, indicate the nature of the memorandum. In paragraphs 14, 15, 17, 18, 19, 25, 26, 27, 30, 31, 32, 33, 35 and 36 of the plaintiff"s memorandum the following appears:
[TRANSLATION]
| 14. The panel then sets out certain points on which it does not believe the plaintiff. |
| 14. The decisions of this honourable Court have established that analysis of a claimant's credibility must be undertaken with circumspection. |
. . . . .
| 17. The panel should not exaggerate the scope of a few apparent inaccuracies and thereby treat the entire testimony as that of a liar: |
| Djama v. M.E.I., A-738-90, June 5, 1992 (Marceau, MacGuigan and Décary JJ.A.) |
| 18. The plaintiff alleges that the panel members made an obvious error in deciding that his testimony was not credible. |
| 19. The decision as a whole indicates that the panel members paid no attention to the plaintiff's testimony, which is an obvious error and merits intervention by this Court. |
. . . . .
| 25. We consider that the concept of credibility is a matter of interpretation. |
| 26. In our opinion, the same event can be seen in different ways which are all equally reasonable. |
| 27. It is paradoxical that the members of the Refugee Division, in cases where they reject a claimant on the basis that his testimony is not credible, always choose an interpretation of the facts which they say contradicts that given by the person before them. |
. . . . .
| 30. We consider that panel members always analyse the events described by the plaintiff according to their own preconceptions, according to what they would have done in the same circumstances. |
| 31. How can they judge a particular attitude since they did not experience the events in question? |
| 32. The panel members' versions may all be regarded as reasonable by them and by this Court, since it is always a question of interpretation. |
| 33. Having said that, we feel, with respect for this Court, that the existing precedents on the concept of credibility and judicial restraint regarding them makes s. 82.1 of the Immigration Act, providing for the possibility for filing an application for leave to file a judicial review against such decisions, inoperative. |
. . . . .
| 35. In our opinion, the existing precedents deny the plaintiff's right to attempt to show that a decision is patently unreasonable. |
| 36. It is well known that the members of the Refugee Division do as they like since they are well aware that the chances of being rebuked by this Court are nil. |
[4] The plaintiff made no effort to show why the subject decision was unreasonable based on the evidence. The plaintiff made no reference to the evidence before the Division.
[5] For these reasons, I have come to the conclusion that the applicant should be dismissed. Mr. Gagnon, counsel for the plaintiff at the hearing, tried to make a connection between the allegations in the memorandum and the evidence. The Minister"s representative objected, and I allowed the objection. In my opinion, what Mr. Gagnon was trying to do was to amend the memorandum filed by the plaintiff.
| Marc Nadon Judge |
MONTRÉAL, QUEBEC
August 5, 1999
Certified true translation
Bernard Olivier, LL. B.
| FEDERAL COURT OF CANADA TRIAL DIVISION Date: 19990805 Docket: IMM-5802-98 Between: SUBRAMANIAM THAMBITHURAI, Plaintiff, AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Defendant. ORDER AND REASONS FOR ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-5802-98 |
| STYLE OF CAUSE: SUBRAMANIAM THAMBITHURAI, |
Plaintiff,
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
PLACE OF HEARING: MONTRÉAL, QUEBEC
| DATE OF HEARING: AUGUST 5, 1999 |
ORDER AND REASONS FOR ORDER BY:
NADON J.
DATED: AUGUST 5, 1999
APPEARANCES:
| Claudia Gagnon for the plaintiff |
| Michel Synnott for the defendant |
SOLICITORS OF RECORD:
| Joseph W. Allen & Associés for the plaintiff |
Montréal, Quebec
Morris Rosenberg for the defendant
Deputy Attorney General of Canada
Federal Department of Justice
Montréal, Quebec