Date: 20001110
Docket: IMM-5488-99
Ottawa, Ontario, the 10th day of November, 2000
Present: The Honourable Mr. Justice Pinard
Between:
HICHEM GAMASSI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision rendered on October 20, 1999 by the Refugee Division, ruling that the applicant is not a Convention refugee, is dismissed.
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001110
Docket: IMM-5488-99
Between:
HICHEM GAMASSI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on October 20, 1999 by the Refugee Division of the Immigration and Refugee Board, ruling that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is a citizen of Algeria. He alleges that he was persecuted in his country by reason of his political opinions and his membership in a particular social group.
[3] It appears from the analysis contained in the reasons for the Refugee Division's decision that the panel concluded the applicant did not have a subjective fear of persecution. This is fundamentally a finding of fact pertaining to the existence of the fear of persecution in the refugee's mind (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at page 723). The Supreme Court of Canada, in Chan v. Canada (M.E.I.), [1995] 3 S.C.R. 593, likewise holds, at page 659, that the fear of persecution, both subjectively and objectively, must be established by a preponderance of probabilities.
[4] Now it is trite law that in the assessment of the facts and/or credibility, it is not within the purview of this Court to substitute its opinion for that of the Refugee Division when the person claiming refugee status fails to establish that this specialized tribunal rendered a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).
[5] In the case at bar, the impugned decision seems to me to be generally well supported by the evidence emanating from the information supplied by the applicant himself and the documents that were filed. Suffice it to refer to the two-and-a-half year delay, noted by the panel, in claiming refugee status in Canada, and the two trips the applicant took outside of his country (to Tunisia, Italy and Thailand), which he did not take advantage of to claim refugee status and following which he simply returned to his own country. It was also relevant for the panel to note that one of these trips lasted about two months and the applicant did not use it to go and join a part of his family that is living in Canada.
[6] The delay in claiming refugee status, which is not explained, as in this case, is an important factor in determining the lack of a subjective fear of persecution (see, for example, Ilie v. Canada (M.C.I.) (1994), 88 F.T.R. 220, at page 223). In my opinion, this factor alone was, in the circumstances, sufficient to allow the Refugee Division to reasonably infer that the applicant did not have a subjective fear of persecution in Algeria, and sufficient to result in the dismissal of his claim.
[7] For these reasons, the application for judicial review is dismissed.
J.
OTTAWA, ONTARIO
November 10, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-5488-99
STYLE: HICHEM GAMASSI v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 10, 2000
REASONS FOR ORDER OF PINARD J.
DATED: NOVEMBER 10, 2000
APPEARANCES:
DENIS GIRARD FOR THE APPLICANT
SHERRY RAFAI FAR FOR THE RESPONDENT
SOLICITORS OF RECORD:
DENIS GIRARD FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada