Date: 20020226
Docket: IMM-1812-01
Ottawa, Ontario, February 26, 2002
Before: Pinard J.
Between:
MAHER KASDALI
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on March 15, 2001 that the plaintiff is not a Convention refugee is dismissed.
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Yvon Pinard
JUDGE
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
Date: 20020226
Docket: IMM-1812-01
Neutral Citation: 2002 FCT 204
Between:
MAHER KASDALI
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division on March 15, 2001 that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The plaintiff is a citizen of Tunisia. He alleges he was persecuted in that country on account of the fact that he is homosexual.
[3] The Refugee Division refused to grant the plaintiff refugee status, concluding that he was not credible as a result of improbabilities and contradictions in his testimony related to major aspects of his claim.
[4] In so far as the plaintiff's arguments are related to his credibility and the assessment of facts by the tribunal, it should be borne in mind that it is not this Court's function to take the place of the administrative tribunal when, as here, the plaintiff fails to show that the decision in question is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (see s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). In the case at bar the Refugee Division based its finding of a lack of credibility on specific examples. It assessed the plaintiff's testimony in light of the replies he gave in his Personal Information Form (PIF) and replies to its questions about certain of his allegations. The tribunal in particular faulted the plaintiff for failing to indicate in his PIF that his father had threatened him with reprisals, that he was beaten by members of the family and that his brother threatened him with supreme torture.
[5] It is true that the Refugee Division must take explanations offered into account and that credibility can only be questioned if the explanations given are less than convincing (see Hue v. Minister of Employment and Immigration, March 8, 1988, A-196-87, F.C. Appeal). Here, the Refugee Division took into account the explanations offered by the plaintiff, but simply did not find them sufficient. In light of the many significant weaknesses in the plaintiff's testimony, I consider that the Refugee Division properly concluded that he lacked credibility.
[6] Further, as I must assume in the absence of clear and persuasive evidence to the contrary that the Refugee Division considered all the evidence (see Hassan v. M.E.I. (1992), 147 N.R. 317, at 318), I am not persuaded on reviewing the evidence that this specialized tribunal could not reasonably conclude as it did (see Aguebor v. M.E.I. (1993), 160 N.R. 315, F.C. Appeal).
[7] Finally, the plaintiff objected that the president of the Refugee Division adopted a contemptuous attitude which created an atmosphere of confrontation at his hearing. I must reject this objection on the ground that this question of an apprehension of bias could and should have been raised by counsel for the plaintiff at the hearing before the tribunal (see Nartey v. Canada (M.E.I.), [1994] 74 F.C.J. No. 74 (F.C.T.D.) (QL) and Del Moral c. Minister of Citizenship and Immigration, June 4, 1998, IMM-2062-97, F.C.T.D.). After re-reading the transcript I consider that procedural fairness was observed and that the decision was made by an impartial tribunal.
[8] For these reasons, the application for judicial review is dismissed.
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Yvon Pinard
JUDGE
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OTTAWA, ONTARIO
February 26, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-1812-01
STYLE OF CAUSE: Maher Kasdali
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 25, 2002
REASONS FOR ORDER BY: Pinard J.
DATED: February 26, 2002
APPEARANCES:
Maher Kasdali FOR THE PLAINTIFF
Marie Nicole Moreau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Maher Kasdali for himself FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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