Date: 20010705
Docket: IMM-4601-00
Neutral citation: 2001 FCT 759
BETWEEN:
JOSPH PREMKUMAR FERNANDO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks to set aside a decision of the Refugee Board dated August 8, 2000 which denied his claim to refugee status in Canada.
[2] In concluding that he was not a refugee, the Board found that the applicant lacked a subjective fear of persecution. In particular, the Board found that his failure to claim refugee status, while in the United States for over three months, was not consistent with his alleged fear of persecution. In Tabet-Zatla v. Canada (Minister of Citizenship and Immigration), (November 2, 1999), IMM-6291-98 (F.C.T.D.) my colleague Madam Justice Tremblay-Lamer made the following remarks at paragraphs 5 and 6:
It was reasonable for the Refugee Division to conclude that his behaviour was inconsistent with the existence of a subjective fear of persecution. [...]
As I recently pointed out in Kamana v. Minister:
The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition -- subjective and objective -- must be met. [footnote omitted]
[3] After a careful review of the evidence, including the applicant's viva voce evidence, I cannot understand on what basis the Board's finding could be criticized. The reasons given by the applicant for not claiming in the United States are, without doubt, incompatible with the fear that he has put forward in making his claim in Canada. Thus, as Tremblay-Lamer J. rightly points out, lack of a subjective fear of persecution is fatal to an applicant's claim to refugee status.
[4] I am also of the view that the Board's finding that the applicant was not a credible witness is entirely supported by the record. The applicant's viva voce evidence clearly shows the reasonableness of the Board's finding on this point.
[5] Finally, with respect to the Board's finding that the applicant's claim lacked a credible basis, it is, in my view, clearly supported by the record.
[6] For these reasons, the applicant's application for judicial review will be dismissed.
[7] The applicant submits that I should certify the following question as constituting a serious question of general importance:
IS A SIMPLE FINDING THAT A REFUGEE CLAIMANT IS NOT A CREDIBLE WITNESS SUFFICIENT TO TRIGGER THE APPLICATION OF SUBSECTION 69.1(9.1) OF THE IMMIGRATION ACT?
[8] As I indicated to counsel at the hearing, I do not believe that this question should be certified. It is not, in my view, a question of general importance as explained by Décary J.A. in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, where, at page 5, he states the following:
In order to be certified pursuant to s. 81(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman, J., in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (H.C.)), but it must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.
[9] In my view, the question proposed for certification does not meet the above test as the answer to the proposed question depends entirely on the facts of the case. Whether or not, in a given case, a finding that a refugee claimant is not a credible witness, will justify a conclusion that his claim has no credible basis, depends on the nature of the proof adduced and the basis on which the applicant is claiming.
[10] In my view, the question does not transcend the interests of the parties herein and does not contemplate issues of broad significance or general application. I am aware, as counsel informed me, that Teitelbaum J. in Rahaman v. Canada (Minister of Citizenship and Immigration) (November 2, 2000), IMM-1112-99 (F.C.T.D.) certified the question which the applicant proposes that I should certify. With the greatest respect for my colleague, I do not believe that the question which he certified ought to have been certified. It does not, in my view, meet the test as explained by Décary J.A. in Liyanagamage, supra.
Marc Nadon
JUDGE
OTTAWA, ONTARIO
July 5, 2001