Hossain v. Canada (Citizenship and Immigration), 2006 FC 59

Date: 20060120

Docket: IMM-3541-05

Citation: 2006 FC 59

BETWEEN:

MIAH ARIF HOSSAIN

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

PHELAN J.

[1]                The Applicant ("Hossain") seeks judicial review of a decision of the Immigration and Refugee Board ("Board") denying his refugee application on the basis of lack of credibility.

[2]                Hossain claimed that he had been a member of the Jatiya Party since 1995 as well as being a successful business man. He said that he was persecuted by the rival opposing political parties because of his political opinions and his status as a business man. He left Bangladesh in 1999, and went to the United Stateswhere he overstayed his visa. In 2004 he entered Canada from the United Statesand made his refugee claim.

[3]                The Board found the Applicant to lack credibility; that he was evasive; that he did not provide direct answers to simple, direct and clear questions. He was reminded constantly that he was not answering the questions - his excuse for lack of responsiveness was that he did not understand the questions, despite having been cautioned to indicate when he did not understand. He also explained that he was nervous.

[4]                The Board, in its reasons, give a number of specific instances which led to this general conclusion. The Applicant has attacked the Board's conclusions on these specifics.

[5]                The Court is mindful that a credibility finding attracts a high degree of deference. Consistent with the decision in Aguebor v. (Canada) Minister of Employment and Immigration, [1993] F.C.J. No. 732 (Fed. C.A.) and pursuant to s. 18.1(4)(d) of the Federal Courts Act (see 2005 SCC 40">Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40), this Court should only intervene where the finding of credibility is patently unreasonable or made in a perverse and capricious manner or without regard for the material before the Tribunal.

[6]                Any one of the specifics referred to by the Board can be "picked apart". His failure to give the correct names of his party's executive is remedied immediately; the contradictions between his PIF and his oral testimony are each explained.

[7]                Not everyone would conclude that the Applicant was not credible, however, there was evidence on which a person could reach that conclusion. The Board had the advantage of hearing all of the evidence and observing the demeanour of the Applicant and his manner of responding to questions.

[8]                For this Court to overturn the Board's decision, it would have to put itself in the same position as the Board and substitute its opinion on each of the specifics referred to by the Board in order to make a finding that it was patently unreasonable for the Board to conclude, as a whole, that the Applicant was not credible.

[9]                That is simply not the function of this Court on a judicial review. Given the high standard of review, not only would this Court have to find the Board's conclusions and the manner and basis upon which the conclusions were reached to be unreasonable, it would then have to conclude that such error is so clear as to be patently unreasonable.

[10]            Given that standard of review, I cannot find that the Board's decision reached the level of patent unreasonableness. This is particularly so when the Board's credibility finding was based so heavily on its observation of the Applicant's evidence and where the transcript reveals some basis for the Board's conclusion.

[11]            For these reasons, this judicial review will be dismissed. I concur with the parties that there is no question for certification.

"Michael L. Phelan"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-3541-05

STYLE OF CAUSE:                           MIAH ARIF HOSSAIN

                                                            and

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       January 18, 2006

REASONS FOR ORDER:                The Honourable Mr. Justice Phelan

DATED:                                              January 20, 2006

APPEARANCES:

SOLICITORS OF RECORD: