Date: 20011011
Docket: IMM-6323-00
Ottawa, Ontario, the 11th day of October, 2001
Present: The Honourable Mr. Justice Pinard
Between:
Luciano Javier PAGNACCO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision rendered on November 20, 2000 by the Refugee Division, ruling that the applicant is not a Convention refugee, is dismissed.
"Yvon Pinard"
Judge
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20011011
Docket: IMM-6323-00
Neutral Citation: 2001 FCT 1100
Between:
Luciano Javier PAGNACCO
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 November 20, 2000 by the Refugee Division, 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 Argentina. He alleges that he has a well-founded fear of persecution because of his political opinions and his membership in a particular social group.
[3] The Refugee Division concluded that because of his lack of credibility the applicant had not managed to establish that he has a reasonable belief of being persecuted, pursuant to the judgment in Adjei v. Canada (M.E.I.), [1989] 2 F.C. 680, (1989), 7 Imm. L.R. (2d) 169 (F.C.A.). The conclusion as to the applicant's lack of credibility is based on the following observations by the panel:
[Translation]
- The claimant alleges that he was persecuted by his employer because of his attempts to form a union at the hotel, although the documentary evidence shows that the right to organize in a union is guaranteed by the Argentine Constitution and that anti-union measures are prohibited therein.
- The claimant testified that the police had falsely accused him of carrying a war weapon, while in question 22 of his statement to the immigration officers he says there is no criminal charge pending against him in his country, and in question 20 of his Personal Information Form ("PIF") he says he is not being sought by the police or the authorities of his country.
- The claimant testified that he feared the police because his attorney had laid a complaint against them. However, in his PIF, he writes nothing about any complaint laid by the attorney and he even admitted during the hearing that this attorney had dropped his case.
- The claimant failed to mention in his PIF that he had learned from his father, on November 21, 1999, that the police were saying that if he returned to Argentina he would be "given a hard time". He also failed to note that the officers who arrested him on June 2, 1999 were policemen. Finally, he waited more than two months to claim refugee status in Canada, which undermines his credibility.
[4] Now, as we know, when it comes to credibility and assessment of the facts, it is not the Court's job to substitute itself for the administrative tribunal where, as in this case, the applicant has failed to prove that the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Based on my review of the evidence, I can presume that the Refugee Division, as a specialized tribunal, did consider the evidence as a whole and could reasonably draw the conclusion that it did (see, for example, Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317, at p. 318 and Aguebor v. M.E.I. (1993), 160 N.R. 315, at pp. 316-17).
[5] Accordingly, the application for judicial review is dismissed.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
October 11, 2001
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-6323-00
STYLE: LUCIANO JAVIER PAGNACCO v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 11, 2001
REASONS FOR ORDER OF PINARD J.
DATED: OCTOBER 11, 2001
APPEARANCES:
Claude Pellerin FOR THE APPLICANT
Greg Moore FOR THE RESPONDENT
SOLICITORS OF RECORD:
Claude Pellerin FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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