Date: 19990416
Docket: IMM-3177-98
Between :
SITTY FAWZIYA MOHAMED
TUWAN FAZI YOSEN
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicants, a 39-year-old mother and her 5-year-old son, both from Sri Lanka, seek judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated May 28, 1998, in which the Board determined they were not Convention refugees as defined in subsection 2(1) of the Immigration Act.
[2] The Board determined that the applicants' evidence was not credible nor trustworthy and, therefore, could not understandably find there is a reasonable chance that persecution would take place should the applicants be returned to their country of origin. The Board's decision is based on a number of implausibilities and inconsistencies, which can be summarized as follows:
| - the documentary evidence indicated that Tamil-speaking Muslims do not have difficulties residing in government-controlled areas of the country; |
| - it was not reasonable to accept that a Muslim woman and her child would take the inordinate risk of moving into Tamil Tiger controlled area of the country because they were being harassed by the Sri Lankan security force; |
| - there were far too many omissions from the applicant's Personal Information Form (PIF); |
| - the applicant did not know on what ship her husband left Sri Lanka on; |
| - the applicant's PIF and her identity documents were inconsistent with her allegations that she has strong ties to Vavuniya; |
| - the documentary evidence showed that the LTTE and Muslims are in conflict in Sri Lanka - it is therefore implausible that as Muslims, the applicants were suspected of being LTTE sympathizers. |
[3] In Fletcher v. Manitoba Public Insurance Corporation, [1990] 3 S.C.R. 191, the Supreme Court of Canada set out the appropriate test for judicial intervention on questions of fact at page 204:
| These authorities, in my view, make crystal clear the test for determining when it is appropriate for an appellate court to depart from a trial judge's findings of fact: appellate courts should only interfere where the trial judge has made a "palpable and overriding error which affected his assessment of the facts". The very structure of our judicial system requires this deference to the trier of fact. . . . |
|
[4] Subsequently, in Aguebor v. M.E.I. (1993), 160 N.R. 315, Décary J.A., writing for the Federal Court of Appeal, described the restraint that must be applied in respect of a finding of credibility by this sort of tribunal, at page 316:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position that the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant out intervention, its findings are not open to judicial review. . . . |
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[5] In the case at bar, upon reviewing the evidence, I consider that the applicants have not discharged their burden of showing that the inferences drawn by the Board could not reasonably have been drawn. Without necessarily endorsing the Board's analysis of the facts in its entirety, I am of the opinion that the above implausibilities and inconsistencies, taken as a whole, could allow it to conclude as it did.
[6] Consequently, the intervention of this Court is not warranted and the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
April 16, 1999
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