Date: 20020925
Docket: IMM-5186-01
Neutral Citation: 2002 FCT 993
Between:
Panambarage Jos FERNANDO,
DEMANDEUR;
- et -
LE MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION,
DÉFENDEUR.
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated October 17, 2001, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant is a citizen of Sri Lanka. He alleges he suffered persecution based on his imputed political opinion.
The Board determined the applicant not to be a Convention refugee because he was not credible and failed to prove that his fear of persecution was well-founded.
It is first submitted that the Board erred by determining that the applicant's delay to claim refugee status was determinative of the issue of his subjective fear. In Smajic v. Canada (M.C.I.), [1999] F.C.J. No. 1904 (T.D.) (QL), Madam Justice Reed stated as follows:
. . . Also, returning completely voluntarily, on several occasions, to one's country of nationality to visit family, is some evidence that a subjective fear of the type of harm from which an individual deserves international protection does not exist. . . .
Justice Rouleau also recently confirmed in Kabengele v. Canada (M.C.I.) (2000), 197 F.T.R. 73 at pages 84 and 85:
It is quite proper for the Refugee Division to take the plaintiff's actions into account in assessing his subjective fear. It is reasonable for it to conclude that the fact he returned to the country where he feared persecution makes the existence of such a fear unlikely (see Rached v. M.C.I., A-859-91, January 18, 1996; Wey v. Canada (Secretary of State), IMM-2758-94, February 21, 1991; Safakhoo v. M.C.I., IMM-455-96, April 3, 1997; Bello v. M.C.I., IMM-1771-96, April 11, 1997).
Further, the Federal Court of Appeal established in Huerta v. Canada (M.E.I.), [1993] F.C.J. No. 271 (QL):
. . . The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.
In the case at bar, it was since 1995 that the applicant had allegedly feared persecution in Sri Lanka, yet he continued to work as a seaman and returned to his country in January and August 1998, in March 1999 and in June 2000. Further, the applicant left the ship in Halifax on August 28, 2000 at which point he did not claim refugee status. Finally, the applicant was in Canada from August 2, 2000 until September 3, 2000 before he claimed refugee status.
Based on the foregoing case-law, the evidence on hand as well as the often implausible testimony of the applicant, I feel that the Board's findings were reasonable. They were certainly not patently unreasonable.
In addition, the applicant specifically argues that the Board erred in concluding that the applicant's wife, in her letters, had never disclosed to the police that he was in Canada. The applicant refers us to a letter dated July 26, 2001. This letter does indicate that their house was searched and that she and her children were interrogated. However, it is not at all clear that it was indeed the police who had questioned her about her husband's location. After having also read the other two letters on file, I must agree with the Board's decision that nowhere does it indicate that the applicant's wife revealed the whereabouts of the applicant to the police.
The applicant's other arguments are all with respect to the assessment of evidence. In my view, the Board unequivocally determined the applicant not to be credible and offered detailed reasons for its decision, citing contradictions, omissions and implausibilities in the applicant's oral testimony and in the documentary evidence. In spite of some minor errors, I do not find the decision was 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).
In conclusion, based on the foregoing reasons, the applicant has not discharged his burden in this case and consequently, this application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
September 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5186-01
STYLE OF CAUSE: Panambarage Jos FERNANDO c. LE MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 14, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: September 25, 2002
APPEARANCES:
Me Diane N. Doray FOR THE APPLICANT
Me Michel Synnott FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joseph W. Allen & Associates FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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