Date: 19990126
Docket: IMM-1040-98
Ottawa, Ontario, the 26th day of January 1999
Present: The Honourable Mr. Justice Pinard
Between:
ENRIQUE CARLOS PURIZACA TUMI
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated February 16, 1998, by the Convention Refugee Determination Division, determining that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
Date: 19990126
Docket: IMM-1040-98
Between:
ENRIQUE CARLOS PURIZACA TUMI
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision dated February 16, 1998, by the Convention Refugee Determination Division, determining that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act (the Act). The decision is based entirely on the applicant's lack of credibility.
[2] As the Federal Court of Appeal instructed in Aguebor v. M.E.I. (1993), 160 N.R. 315, at page 316, this Court must treat an adverse credibility finding by the Refugee Division, which is a specialized tribunal, with deference:
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.
[3] More recently, in Schwartz v. Canada, [1996] 1 S.C.R. 254, at page 278, the Supreme Court of Canada again emphasized the rule of great deference toward a trial judge's findings of fact:
It has long been settled that appellate courts must treat a trial judge's findings of fact with great deference. The rule is principally based on the assumption that the trier of fact is in a privileged position to assess the credibility of witnesses' testimony at trial. . . .
[4] After hearing counsel for the parties and reviewing the evidence, and being of the view that it was reasonable for the Refugee Division to have found as it did, I do not feel justified in intervening in this case. The tribunal's perception that the applicant is not credible effectively amounts to a finding that there is no credible evidence to justify his refugee claim. In Sheikh v. Canada, [1990] 3 F.C. 238, at page 244, Mr. Justice MacGuigan wrote:
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.
[5] The application for judicial review is accordingly dismissed.
[6] There is no question here to be certified.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
January 26, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1040-98
STYLE OF CAUSE: ENRIQUE CARLOS PURIZACA TUMI
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 13, 1999
REASONS FOR ORDER OF PINARD J.
DATED January 26, 1999
APPEARANCES:
Gisèle Saint-Pierre FOR THE APPLICANT
Claude Provencher FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gisèle Saint-Pierre FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada