IMM-3366-97
RAJESWARY SHANMUGANATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
HELD AT: Federal Court of Canada
330 University Ave., 8th floor
Courtroom 1
Toronto, Ontario
HELD ON: October 20, 1998
REGISTRAR: Sandra McPherson, Ms.
REPORTER: Robert Dudley, CVR
RD:pmm IMM-3366-97
FEDERAL COURT OF CANADA
(TRIAL DIVISION)
B E T W E E N:
RAJESWARY SHANMUGANATHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HELD BEFORE: Mr. Justice Muldoon
HELD AT: Federal Court of Canada
330 University Ave., 8th floor
Courtroom 1
Toronto, Ontario
HELD ON: October 20, 1998
REGISTRAR: Sandra McPherson, Ms.
REPORTER: Robert Dudley, CVR
APPEARANCES:
HELEN LUZIUS, MS. -- For the Applicant
MARIANNE ZORIC, MS. -- For the Respondent
I N D E X O F P R O C E E D I N G S
Pages
Reasons for Judgment .......................... 1 - 7
--- Upon commencing at 11:45 a.m.
REASONS FOR DECISION:
| The Court is choosing words with care because, not to keep the mystery alive longer than necessary, the Court is not convinced that the applicant has discharged the burden in such a manner, if at all, as to persuade the Court that it ought to quash the Convention Refugee Determination Division's decision. |
| The Tribunal's decision was that the applicant was not a Convention refugee. The focus of concern at the Hearing was whether an internal flight alternative, or IFA, potentially existed for the applicant in Vavuniya, where the bulk of her immediate family resides. |
| In its decision, the Tribunal found that the applicant lacked credibility in regard to specific aspects of her testimony. Because of that lack of credibility, the Tribunal was not persuaded that the applicant faced any significant risk of persecution. |
| Turning to the issue of whether or not it would be unduly harsh for the claimant to be expected to establish herself in Vavuniya, with her parents, with her husband, with her children, the panel found there would be no hardship to her because of her family's established presence there, as well as the fact that the town is described in the documentary evidence as a "flourishing commercial centre". |
| One might note that her husband, having been detained, a matter with which one would not put up in Canada, but he was detained, now has a card from the Army saying that he was detained, was cleared, was released and that he presents no problem. So that is her husband, the father of her second child. |
| And despite these facts, she comes forward and says, "I'm a refugee claimant principally "because on my national identity card, my address is shown as Jaffna," from where she came originally. |
| One must look, I suppose, to the very brief Reasons for Judgment of the Federal Court of Appeal in the case of Zhen Pai Liu v. The Minister of Employment & Immigration, A-1087-91, a decision delivered from the bench in Toronto on July 7, 1994. The Judgment of the Court was expressed by Mr. Justice Létourneau, and he said this: |
| "...The Immigration and Refugee Board found the appellant not to be credible and that there were far too many implausibilities in his testimony to accept it as true. Consequently, it dismissed his claim for refugee status. Despite the vigorous arguments of counsel for the appellant, we have not been persuaded that the Board erred in law, or acted in a patently unreasonable manner in reaching the conclusion it did. The appeal will be dismissed..." |
| This Court must say, having heard the vigorous arguments of counsel for the appellant especially, but on both sides, that this Court is not persuaded that the CRDD erred in law or acted in a patently unreasonable manner in reaching the conclusion it did. |
| The specific issues regarding credibility are set out in the respondent's Memorandum of Argument. The Refugee Division, the respondent argues, did not believe that the applicant was taken in a house-to-house search in Vavuniya, initiated by the local authorities; or that she was compelled to identify LTTE suspects, either in Vavuniya or Colombo. At least nine examples of inconsistencies and implausibilities in the applicant's evidence were provided in reasons in support of this finding. |
| Whether eight are persuasive, or seven are persuasive, and not nine, is a matter of little moment in this case, but ultimately, the Board found that the appellant does not have a reasonable fear of persecution. It is evident from her evidence that she has a subjective fear of persecution, but when the CRDD, in effect, finds that she has no objective fear of persecution, this Court cannot gainsay the CRDD in their finding. |
| So the question is: Did the Board improperly find that an IFA was available to the applicant, basing its decision, as it did, on the applicant's lack of credibility? But not only the lack of credibility, also on country conditions and objective evidence. |
| It was completely within the Tribunal's purview to make findings of credibility. The Tribunal is ideally situated for this very task, as the trier of fact, and its job is to draw conclusions as to plausibility or implausibility of the applicant's story. |
| The authority in that respect is the well-known case of Aguebor v. The Minister of Employment & Immigration, which is reported in [1993] 160 N.R., page 315, the fourth paragraph of that decision by the Federal Court of Appeal is as follows: |
| "...[4] 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..." |
| One may say, in passing, that that is what the whole name of the exercise is, judicial review. It is not open to being quashed on judicial review, is what the Court of Appeal undoubtedly means there. |
| So that it would be an exercise, perhaps of some time and detail, to go over every detail. Counsel have argued them in Court. They have discussed them as between counsel and the bench, and there is a long string of jurisprudence. Basically, however, the Court, upon all of the arguments made |
| here... basically this Court is in accord with the respondent's arguments because they indicate to the Court that the decision of the Refugee Determination Division, while it sits unhappily with the applicant, was not egregiously wrong, and therefore the Court will not quash that decision. |
| Are there any questions? |
| MS. ZORIC: No, My Lord. |
| MS. LUZIUS: No, My Lord. |
| HIS LORDSHIP: Counsel, thank you. The Court is grateful for your assistance, and makes one observation, and that is this: That you get the case which is given to you, and if it is not a great case, it is not the fault of counsel. I think neither side has any reason to be unhappy with the services of counsel in this case. |
| MS. LUZIUS: Thank you, My Lord. |
| MS. ZORIC: Thank you, My Lord. |
--- Upon recessing at 12:00 p.m.
| I hereby certify the foregoing to be a true and accurate transcription of the above noted proceedings held before me on the 20th day of October, 1998 and taken to the best of my skill, ability and understanding. |
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| } Certified Correct: |
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| } _______________________________ |
| } Robert Dudley |
| } Certified Verbatim Reporter |
| } (416) 360-6117 |
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