Date: 20011101
Docket: IMM-6450-00
Ottawa, Ontario, November 1, 2001
Before: Pinard J.
Between:
Rayathar THUSANANTHAN
Plaintiff
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on November 23, 2000 that the plaintiff is not a Convention refugee is dismissed.
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YVON PINARD
JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20011101
Docket: IMM-6450-00
Neutral citation: 2001 FCT 1186
Between:
Rayathar THUSANANTHAN
Plaintiff
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
The application for judicial review is from a decision by the Refugee Division on November 23, 2000 that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The plaintiff is a young Tamil, age 26, born in Sri Lanka. The Refugee Division concluded that he was not a Convention refugee because he lacked credibility and was unable to establish his identity.
It appears to the Court, after hearing counsel for the parties and reviewing the evidence, and without thereby entirely endorsing the analysis by the Refugee Division, that that specialized tribunal in fact based its decision on the evidence in the record, and in general the inferences which it drew from the latter could reasonably be drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C. Appeal)). Further, in my opinion the Refugee Division was entitled to conclude, in view of the omissions and contradictions attributed to the plaintiff, that the latter's conduct, not leaving his country until nine years after the alleged persecution began, was inconsistent with the existence of a subjective fear.
As to the plaintiff's argument that the tribunal was wrong in not considering the document which he gave during the course of deliberations (Appendix B to the plaintiff's affidavit, signed January 15, 2001), this is without merit as the evidence clearly showed that the Refugee Division's decision was made before it could take the document into account.
Finally, I accord no merit to the plaintiff's arguments that the Refugee Division failed to provide reasons for its conclusion that no credible basis existed. In its decision the tribunal squarely concluded that it did not find the plaintiff credible, specifically mentioning a number of omissions and contradictions. Although in my opinion such a conclusion does not automatically lead to a conclusion that the claim lacked a credible basis, it may sometimes, depending on the circumstances, extend to all aspects of the plaintiff's testimony and be a sufficient basis for a conclusion that his claim lacks a credible basis. This results not only from Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (F.C. Appeal), in which MacGuigan J.A. wrote at 244:
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.
but also from Mathiyabaranam v. Canada (M.E.I.) (1997), 221 N.R. 351, in which Linden J.A. said at 354:
. . . a credible basis determination is inherent in the definition of Convention refugee. It does not place upon the claimant an evidentiary burden separate from or additional to the primary one imposed by the definition itself.
The conclusion as to the lack of a credible basis in the plaintiff's claim in the case at bar appears to the Court to reasonably result from the reasons for decision as whole, establishing that he lacked credibility.
Accordingly, the application for judicial review is dismissed.
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YVON PINARD
JUDGE |
OTTAWA, ONTARIO
November 1, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-6450-00
STYLE OF CAUSE: RAYATHAR THUSANANTHAN
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 27, 2001
REASONS FOR ORDER BY: PINARD J.
DATED: NOVEMBER 1, 2001
APPEARANCES:
MARTIN FORGET FOR THE PLAINTIFF
JOCELYNE MURPHY FOR THE DEFENDANT
SOLICITORS OF RECORD:
MARTIN FORGET FOR THE PLAINTIFF
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA