Date: 20021002
Docket: IMM-5324-01
Ottawa, Ontario, October 2, 2002
Before: Pinard J.
Between:
Selliah GNANASEHARAN
Nirmala GNANASEHARAN
Mahishan GNANASEHARAN
Plaintiffs
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review of the decision by the Refugee Division on October 29, 2001, that the plaintiffs are not Convention refugees is dismissed.
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"Yvon Pinard"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20021002
Docket: IMM-5324-01
Neutral citation: 2002 FCT 1018
Between:
Selliah GNANASEHARAN
Nirmala GNANASEHARAN
Mahishan GNANASEHARAN
Plaintiffs
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review concerns a decision by the Refugee Division on October 29, 2001, that the plaintiffs are not Convention refugees as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The plaintiffs are citizens of Sri Lanka. The plaintiffs' claim is based on the fact that they feared persecution by the Liberation Tigers of Tamil Eelam. The Refugee Division refused to grant the plaintiffs refugee status, concluding that they were not credible.
[3] On a question of credibility, it is not this Court's function to take the Refugee Division's place unless the plaintiff can show that its decision was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (s. 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7).
[4] It should be borne in mind, as the Federal Court of Appeal held in Aguebor v. M.E.I. (1993), 160 N.R. 315, that the Refugee Division is in the best position to assess the credibility of someone claiming refugee status:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[5] In the case at bar, after re-reading the transcript I am persuaded, in view of the testimony by the plaintiffs, that despite certain minor errors noted by the latter the Refugee Division's decision was fair and reasonable. That tribunal several times gave the plaintiffs an opportunity to explain facts and occurrences which were entirely relevant to their claim, but their testimony was contradictory, inconsistent, improbable and contrary to the documentary evidence entered in the record.
[6] As to that documentary evidence, it is well settled that the Refugee Division has complete authority to assess and analyze its content, and must be presumed to have considered all the evidence (Florea v. Minister of Employment and Immigration, June 11, 1993, A-1307-91, F.C. Appeal). Thus, the fact that documentary evidence is not mentioned in reasons does not necessarily vitiate the decision (see Hassan v. M.E.I. (1992), 147 N.R. 317, F.C. Appeal).
[7] Finally, in view of the circumstances in the case at bar the Refugee Division's perception that the plaintiff was not credible amounts in fact to a finding that there was no credible basis for his refugee status claim (Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at 244, F.C. Appeal).
[8] In my opinion, therefore, the Refugee Division performed its functions without committing any reviewable error. The application for judicial review is accordingly dismissed.
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"Yvon Pinard"
Judge |
OTTAWA, ONTARIO
October 2, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-5324-01
STYLE OF CAUSE: Selliah GNANASEHARAN
Nirmala GNANASEHARAN
Mahishan GNANASEHARAN
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 27, 2002
REASONS FOR ORDER BY: Pinard J.
DATED: October 2, 2002
APPEARANCES:
Diane N. Doray FOR THE PLAINTIFF
Diane Lemery FOR THE DEFENDANT
SOLICITORS OF RECORD:
Diane N. Doray FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario