Akacha v. Canada (Minister of Citizenship and Immigration), 2003 FC 1489

                                                                                                                                             Date: 20031219

                                                                                                                                  Docket: IMM-548-03

                                                                                                                                 Citation: 2003 FC 1489

Between:

                                                                     Kamel AKACHA

                                                                                                                                                       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 by the Refugee Protection Division of the Immigration and Refugee Board (the IRB), dated January 13, 2003, that the applicant is not a Convention refugee or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[2]         The applicant is a citizen of Algeria who alleges that he has a well-founded fear of persecution because of his perceived political opinions and his membership in a particular social group. The applicant also claims that there is a risk to his life or a risk of cruel and unusual treatment or punishment and a serious possibility that he would be tortured in his country.

[3]         According to the applicant, the IRB disregarded some of the evidence pertaining to his claim because this evidence is not mentioned in the reasons. I can see, however, after a careful review of the record, that the panel took all of the applicant's submissions into consideration. Moreover, the IRB is presumed to have considered all of the evidence in the record before making its decision (see Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (C.A.) (QL)) and it is not necessary for it to mention each piece of evidence that it considered in the reasons (Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.)).

[4]         The applicant submits, furthermore, that the IRB acted unreasonably in evaluating his credibility and acted unreasonably in interpreting the evidence in the record. As a general rule, testimony is presumed to be true unless there are reasons to doubt its truthfulness. In this case, the IRB noted several inconsistencies between the applicant's testimony and the information contained in his Personal Information Form. A review of the record and, above all, of the transcripts of the hearing, shows that the IRB considered the applicant's explanations but found they were inadequate. The panel was entirely justified in taking these inconsistencies into consideration in the assessment of the applicant's credibility (Parnian v. Canada (M.C.I.) (1995), 96 F.T.R. 142).

[5]         The panel also found that the applicant's subjective fear of persecution was not credible. The caselaw has consistently held that a Convention refugee must have a subjective fear of persecution (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at page 723). In Kamana v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 1695 (F.C.T.D.)(QL), Madam Justice Tremblay-Lamer found that 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". In this case, the applicant returned to Algeria, the country where, he says, he fears persecution, after having left that very country to go to France. The Federal Court of Appeal has already held that the fact that a claimant returns to the country where he allegedly fears persecution is inconsistent with a reasonable fear of persecution (Caballero v. Canada (M.E.I.), [1993] F.C.J. No. 483 (F.C.A.) (QL)). In my opinion, it was not unreasonable, in the circumstances, to conclude that the applicant's subjective fear of persecution was not credible.

[6]         For all of these reasons, the applicant has failed to establish that the IRB's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, and I do not see anything that is patently unreasonable in the decision of this specialized tribunal. Accordingly, the application for judicial review is dismissed.

          "Yvon Pinard"            

    JUDGE

OTTAWA, ONTARIO

December 19, 2003

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                                 FEDERAL COURT

                                                          SOLICITORS OF RECORD

DOCKET:                                              IMM-548-03

STYLE OF CAUSE:                           Kamel AKACHA v. THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                       Montréal, Quebec

DATE OF HEARING:                         November 26, 2003

REASONS FOR ORDER BY:          The Honourable Mr. Justice Pinard

DATED:                                                 December 19, 2003

APPEARANCES:

Lenya Kalepdjian                                 FOR THE APPLICANT

Thi My Dung Tran                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

Lenya Kalepdjian                                 FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario