Date: 20080617
Docket: IMM-6412-06
Citation: 2008 FC 746
Toronto, Ontario, June 17,
2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
BAWANI VARATHARAJAH and
YAALINI VARATHARAJAH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated November 9, 2006, wherein the Board found Bawani
Varatharajah and Yaalini Varatharajah (collectively the applicants) to be
neither Convention refugees nor persons in need of protection.
[2]
The
applicants requested that the decision be set aside and the matter referred
back to a newly constituted panel of the Board for redetermination.
I. Background
[3]
Bawani
Varatharajah (the principal applicant) and her four-year-old adoptive daughter,
Yaalini Varatharajah are both citizens of Sri Lanka. The facts
leading to the applicants’ claim for refugee status are as set out in the
principal applicant’s Personal Information Form (PIF).
[4]
The
principal applicant alleges that she witnessed the kidnapping of her husband by
a militant group. She alleges that her husband, a well networked businessman,
who spoke Tamil, Sinhalese and English, was targeted because of his involvement
in distributing relief to the victims of the Tsunami flood disaster. After the
kidnapping, the principal applicant alleges to have filed a complaint at the
local police station. According to the principal applicant, a short while after
the kidnapping, members of another militant group approached her, asked her
about the whereabouts of her husband, and told her that she was to bring her
husband to them within two weeks or she would suffer serious consequences. The principal
applicant alleges that at this point, she feared for the safety of herself and
her child and as such, they fled Sri Lanka on September 9, 2005.
[5]
The
applicants’ travel to Canada was arranged through an agent. The
applicants spent September 2005 to December 2005 in Guanzhou, China. The
applicants arrived in Canada on December 12, 2005 and filed their
applications for refugee status. The applicants based their claims of a
well-founded fear of persecution in Sri Lanka on the grounds of race,
nationality, perceived political opinion and membership in a particular social
group, namely Tamilians in the eastern area of Sri Lanka Batticaloa. In a
decision dated November 9, 2006, the Board found that the applicants were
neither Convention refugees, nor persons in need of protection. This is the
judicial review of the Board’s decision.
II. The Board’s Decision
[6]
From
the outset of its decision, the Board identified credibility as the
determinative issue in the application. The Board stated that closely linked to
the principal applicant’s credibility was her personal identity as someone who
had resided in Kallady town in the Batticaloa region of Sri Lanka. The Board’s
ultimate decision was that the principal applicant was totally devoid of any
credibility with respect to the core material aspects of her allegations. The
Board also determined that on a balance of probabilities, the principal
applicant did not establish a well-founded fear of persecution in Sri Lanka.
[7]
The
Board noted in its analysis that it had taken into account the cultural
factors, milieu of the hearing and the anxiety that the principal applicant may
have felt during the oral hearing. With regards to the principal applicant’s
demeanour, the Board noted that she had 17 years of formal education, held a
Bachelor’s degree in Commerce, and had a good facility of the English language.
The Board stated that despite her education and reasonable level of
sophistication, her testimony was markedly unpersuasive and evasive with
unrelated responses even to simple questions. The Board found her testimony
vague, ambivalent and wavering, long on generalities, but short on specifics.
The Board took guidance from the Federal Court noting that demeanour can be one
of the factors that a fact finder can consider while assessing the credibility
of a witness.
[8]
As
to the identity of the principal applicant, the Board accepted the Tamil
ethnicity of the principal applicant, and both applicants’ Sri Lankan
citizenship. However, the Board found that the principle applicant’s assertion
of being a resident of Kallady in Batticaloa from November 1983 until she left
for Canada in
September, 2005 was circumspect and not credible.
[9]
With
regards to the Board’s credibility findings, the Board identified two issues
central to the principal applicant’s claim and found credibility issues with
both. The first issue was the principal applicant’s residency in Kallady, a
city in the Batticaloa district. The Board found that she had failed to provide
persuasive, informed and consistent testimony regarding her residency. The
Board stated that her testimony was “marred by vagueness, vacillations and
pleas of being kept in the dark by her husband”. The Board stated that the
principal applicant had also failed to provide any corroboration whatsoever of
the business that her husband owned for more than 20 years and that he had
worked with the Government Tsunami Relief Agency. The Board noted that the
principal applicant had submitted a residence certificate dated September 6,
2005, which she had purportedly had in her possession all along, but only
brought it forward at the second hearing. The Board also noted problems with
the residency card. Specifically, the principal applicant could not offer a
reasonable explanation as to why there was an overwriting showing her last year
of residence as 2005 when the original date read 2006, and as to the lack of
information on the residency card regarding the type of business operated by
the principal applicant’s husband. The Board noted the easy availability of
fraudulent documents in Sri Lanka. The Board also
highlighted that the principal applicant’s national identity card issued on
2002-12-14 showed her as a resident of a suburb in Colombo and not
Batticaloa district. In the end, the Board found that the principal applicant
had never resided in the Batticaloa district. Moreover, the Board stated that
the principal applicant’s “story of alleged residence in the troubled eastern
area of Sri Lanka [was] a total fabrication concocted for the purpose of
providing a basis for her claim for refugee protection”.
[10]
The
Board then concentrated on the second issue central to the claim, the husband’s
alleged kidnapping. The Board noted that “there were a myriad of unresolved
anomalies in the evidence of the claimant respecting the allegations related to
the abduction of her husband” and that despite “ample opportunity to explain
these discrepancies, the claimant was unable to provide reasonable
explanations.” The Board noted that during her Point of Entry (POE)
examination, the principal applicant had testified that her husband was in
charge of a committee in the Tsunami relief operation and had been for 3 to 4
years. The Board noted that the Tsunami had only occurred two years ago.
Moreover, during the hearing, the principal applicant stated that her husband
was not in charge of any committee and that he was actually a volunteer. The
Board did not find the principal applicant’s explanations for the discrepancies
to be reasonable. The Board noted that she claimed to have been detained
without food and water for 12 hours during her initial POE examination, but
during the hearing testified that she had a pack of nourishing biscuits in her
bag the entire time. The Board also noted the inconsistencies surrounding the
date of her husband’s abduction and the identity of his abductors. In the end,
due to the unresolved contradictions and anomalies, the Board found the principal
applicant was not credible in the material aspects of her claim.
[11]
As
to the objective basis of the claim, the Board was not persuaded that there was
sufficient credible evidence before it that young mothers with young children
were being recruited or persecuted by the LLTE especially in Colombo. The Board
stated that there was “no credible evidence before it on which to base a
positive decision”. The Board acknowledged the recent worsening of the
situation in Sri
Lanka,
but found that this did not affect the decision given the circumstances of the
case.
[12]
In
closing, the Board found “the claimant bereft of any credibility or
trustworthiness.” The Board went on to find that the principal applicant was
not a Convention refugee, nor a person in need of protection. The Board also
determined that the minor applicant’s claim should also be rejected as it was
based on that of the mother.
III. Issues
[13]
The
applicants submitted the following issues for consideration:
1.
In
coming to an adverse conclusion regarding the principal applicant’s
credibility, did the Board err in law, ignore evidence or base its decision on
erroneous findings of fact made in a perverse or capricious manner?
2.
Did
the principal applicant have a fair hearing?
3.
Did
the Board raise concerns about the authenticity about any documents and did the
Board give the applicants an opportunity to address any concerns about the
authenticity of any documents before making a general statement about the
availability of fraudulent documents in Sri Lanka?
[14]
I
would rephrase the issues as follows:
1.
What
is the appropriate standard of review?
2.
Did
the Board err in finding the principal applicant not to be a credible witness?
3.
Did
the Board err in finding that the applicants were not residents of the
Batticaloa region?
4.
Did
the Board’s actions give rise to a reasonable apprehension of bias?
5.
Did
the Board commit an error of fact in stating that the applicants were from China?
IV. Applicants’ Submissions
[15]
The
applicants submitted that the Board made a number of errors regarding the
principal applicant’s credibility and thus, the decision must be set aside.
[16]
The
applicants submitted that the Board failed to appreciate the amendments made to
the PIF narrative. The applicants submitted that in making its credibility
findings, the Board failed to consider the impact of the circumstances
surrounding the POE examination, mainly the length of time it took and the
conditions faced by the applicants. The applicants submitted that the Board’s
adverse credibility finding based on inconsistencies between the PIF and the
POE notes is an error of law (Ameir v. Canada (Minister of
Citizenship and Immigration) 2005 FC 876). The applicants submitted that
they provided a plausible explanation for clarifying the details of the answers
given to the POE officer in that the POE examination notes were recorded by an
officer through an interpreter on the phone. The applicants also submitted that
as the POE examination was not recorded, there is no way to verify whether the
POE officer correctly recorded the answers in his notes. The applicants
submitted that the Board also erred in not considering the principal
applicant’s particularly vulnerable state in its assessment of her credibility.
[17]
The
applicants submitted that the Board erred in failing to appreciate the
practices and procedures of different cultures. Specifically, the Board totally
rejected the possibility that as a traditional Sri Lankan Tamil woman, it was within
the cultural norms for the principal applicant’s husband not to keep his wife fully
abreast of all the details of his business and political activities. While the
Board is entitled to use common sense in its assessment of plausibilities,
considerable caution is required when assessing the norms and patterns of
different cultures (Giron v. Canada (Minister of Employment and
Immigration) (1992), 143 N.R. 238 (F.C.A)).
[18]
The
applicants submitted that the Board’s credibility findings were far too
general, without adequate reasons. Credibility findings must be clear,
unmistakable and supported by adequate reasons (Armson v. Canada (Minister of
Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.)).
[19]
The
applicants also submitted that the Board erred in fact in finding that the
applicants were not residents of the Batticaloa district. The applicants
submitted that the police report clearly supported and corroborated the
applicants’ residency. The applicants took issue with the Board’s mention of
the availability of fraudulent documents in Sri Lanka. The
applicants submitted that there is no evidence that the Board had any
particular expertise in interpreting foreign documents like the one in question
(Cheema v. Canada (Minister of Citizenship and Immigration) 2004
FC 224).
[20]
The
applicants also submitted that the Board’s behaviour gave rise to a reasonable
apprehension of bias. The legal test for reasonable apprehension of bias is
whether or not an informed person, viewing the matter realistically and
practically and having thought the matter through would think it more likely
than not that the decision-maker would unconsciously or consciously decide an
issue unfairly (Committee for Justice and Liberty et al. v. National
Energy Board, [1978] 1 S.C.R. 369). The applicants further submitted that
there is no waiver unless the party entitled to make the objection is fully
aware of the nature of the disqualification and has an adequate opportunity to
make the objection (Khadh v. Canada (Minister of Employment and
Immigration), [1994] 1 F.C. 548 (T.D.)). The applicants submitted that the
first opportunity for them to raise a reasonable apprehension of bias was after
the Board provided its reasons because several of the Board’s reasons were
unsupported by any evidence. The applicants also alleged that the Board was
aggressive and hostile in its questioning at the hearing and that the principal
applicant was not permitted to continue her testimony in the language of her
choice. Inept questioning and constant interruptions can provide the basis for
allowing a judicial review (Chaudhry v. Canada (Minister of
Citizenship and Immigration), 2005 FC 200). Judicial review
should be permitted where interruptions are frequent and questions with unnecessary
confusion are asked, as this results in the denial of natural justice.
V. Respondent’s
Submissions
[21]
The
respondent
submitted that the Board is presumed to have considered all the evidence before
it unless the applicants establish otherwise (Woolaston v. Canada
(Minister of Manpower and Immigration), [1973] S.C.R. 102 at 108, Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147 N.R.
317 at 318 (F.C.A.), Florea v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 598 (C.A.)). Moreover, the respondent
submitted that the Board’s reasons show that it considered all the evidence
before it in assessing credibility including the police report. A negative
decision on a person’s credibility is properly made as long as the Board gives
reasons for doing so in “clear and unmistakable terms” (Hilo v. Canada
(Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.)).
[22]
The respondent
submitted that the Board provided numerous examples of why it found the
principal applicant’s testimony not credible. It was submitted that the Board
noted the principal applicant’s demeanor finding that despite her education,
her testimony was evasive with unrelated responses to simple questions. The
Board also noted the applicants’ failure to produce corroborating documents. In
particular, the principal applicant failed to provide any corroborating evidence
regarding the type of business her husband operated, her husband’s work in the
Tsunami relief, or the sale of her home in the Batticaloa region. The
respondent submitted that the Board gave the principal applicant clear
instructions regarding documentation that would help bolster her case after the
first sitting of the hearing on July 28, 2006. In particular, the Board
suggested that the principal applicant bring any photographs, newspaper
articles, business licenses or income tax receipts to the next sitting. During
the second sitting of the hearing on August 23, 2006, the principal applicant
submitted only a residence certificate dated September 6, 2005. When asked why
there was an overwriting to show the last year of residence from 2006 to 2005,
the principal applicant could not provide a reasonable answer. It was submitted
that the Board also took issue with inconsistencies and anomalies in the
principal applicant’s testimony at the hearing. Such inconsistencies and
anomalies included those regarding her husband’s role in the Tsunami relief,
having no food during her lengthy POE examination, the details of her husband’s
abduction, and the threats made against her by agents of persecution. The
respondent submitted that the Board’s mention of all these factors in its
reasons clearly provided the “clear and unmistakable terms” upon which the Board based
its negative credibility finding.
[23]
With
regards to the Board’s finding that the applicants were not residents of the
Batticaloa region, the respondent submitted that the applicants hold the
fundamental obligation to establish their identity on a balance of
probabilities (Kante v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 525 (T.D.), Balkhi v. Canada
(Minister of Citizenship and Immigration), [2001] FCT 419). A lack of
relevant documents may lead to a finding that a claimant has not discharged the
burden with respect to identity and other elements of the claim (Syed v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J.
No. 357 (T.D.), Bin v. Canada (Minister of Citizenship and
Immigration) (2001), 213 F.T.R. 47, Nallanathan v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 326, Nadarajalingam
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 444).
[24]
The respondent
submitted that the applicants’ argument that the Board’s behavior gave rise to
a reasonable apprehension of bias is unfounded and should be dismissed. The
respondent submitted that the applicants failed to raise the issue of bias at
the earliest practical opportunity; and therefore there was an implied waiver (In
Re Human Rights Tribunal and Atomic Energy of Canada Limited, [1986]
1 F.C. 103). It was further submitted that regardless of whether the applicants
waived their right to complain of bias, they have adduced no cogent evidence
and based their claim on unsubstantiated grounds. Questioning by the Board does
not necessarily give rise to a reasonable apprehension of bias. To succeed on
this ground, the applicants must demonstrate that there was something more than
extensive questioning such as a degree of hostility or aggressiveness. The
Board has a “right and duty to obtain answers from the applicants” (Hagi-Mayow
v. Canada (Minister of Employment
and Immigration) (1994),
24 Imm. L.R. (2d) 26 (F.C.T.D.)).
A. Issue 1
(1) What
is the appropriate standard of Review?
The Board’s
credibility findings are reviewed on a standard of reasonableness and are
therefore accorded a high level of deference. Errors of fact are reviewable on
a standard of reasonableness. The issue of a possible reasonable apprehension
of bias is a question of procedural fairness and is reviewable on a standard of
correctness.
B. Issue 2
(1) Did
the Board err in finding the principal applicant not to be a credible witness?
The applicants
submitted that the Board erred in finding the principal applicant not to be a
credible witness. The respondent submitted that negative credibility findings
are to be given the highest deference so long as the Board provides reasons for
doing so in “clear and unmistakable terms” (Hilo, above). At page 5 of
its decision, the Board discusses its credibility findings. The Board clearly
identifies the two aspects of the evidence that are central to her claim for
refugee protection: (1) her residency in Kallady, Batticaloa district, and (2)
her evidence respecting the abduction of her husband. The Board then goes on to
individually assess the principal applicant’s evidence regarding each of these
central issues individually.
[25]
With
regards to the principal applicant’s residency in Kallady, Batticaloa district,
the Board stated that her testimony was marred by “vagueness, vacillations and
pleas of being kept in the dark by her husband”. The Board also stated that
“cultural background alone cannot satisfactorily explain major anomalies in her
evidence”. The Board noted the failure to provide any corroboration whatsoever
of the family business or her husband’s work with the Government Tsunami Relief
Agency.
[26]
With
regards to her evidence respecting the abduction of her husband, the Board
stated that there was a “myriad of unresolved anomalies” in her evidence and
that despite “ample opportunity to explain these discrepancies”, she was unable
to provide reasonable answers. The Board stated that her responses were
“markedly evolving, contradictory and disingenuous.” The Board noted
inconsistencies between her POE examination and her oral testimony at the
hearing. Specifically, the Board noted that during her POE examination, she
stated her husband was in charge of a committee in the Tsunami relief effort,
was paid for his work and had being doing so for three or four years. At the
hearing, she stated that her husband was not in charge of a committee, and was
just a regular volunteer. The Board noted that the principal applicant first
explained these inconsistencies were due to the immigration officer and
translation problems during the POE examination. She went on to say that the
inconsistencies were a result of the “emotional state of her mind and the
physical condition at the end of 12 hours of grueling waiting period.” The
Board also made further credibility findings regarding the timeline of her
husband’s abduction and when she was approached by the second militant group,
and the identity of that group.
[27]
Although
this was a new issue raised at the hearing I have taken into consideration
Guideline 4, section D (2) when deciding the issue.
[28]
In
my opinion, the Board’s finding that the principal applicant was not credible
was in no way unreasonable. The reasons provided by the Board for the negative
credibility finding are clear and unmistakable. This is not a situation where
the Board failed to properly explain its basis and analysis for finding the
principal applicant to be not credible. I will not allow the judicial review on
this ground.
C. Issue 3
(1) Did
the Board err in finding that the principal applicant was not a resident of the
Batticaloa district?
At pages 10 and
11 of its decision, the Board stated:
For all the aforesaid reasons, it is the
finding of the panel that the claimant never resided in Batticaloa district and
that her husband owned and operated a successful shop for more than 20 years.
The panel determines that the claimant’s story of alleged residence in the
troubled eastern area of Sri
Lanka is a total
fabrication concocted for the purpose of providing a basis for her claim for
refugee protection. The claim should therefore be rejected on this count alone.
[29]
The
above finding that the principal applicant never resided in Batticaloa district
is a finding of fact and deference is owed.
[30]
The
evidence before the Board in making the above finding was conflicting and
incomplete. The Board noted that despite having been informed that it would
help her prove her case, the principal applicant failed to provide sufficient
documents supporting her residency. The Board noted that the principal
applicant did not provide any photographs of her residence and business. When
asked why she had not done so, the principal applicant stated that it was too
difficult for her mother or younger brother to go to Batticaloa from Colombo to procure
corroborative documents. The Board noted at page 9 of its decision that this
“begs the question why would the claimant not approach her [father in law] or
brother-in-law (elder brother of her husband) to mail some documents including
photographs?” The Board also noted that the principal applicant had failed to
provide any documentation regarding the sale of the business and home just five
days after her husband’s abduction. The Board rejected her explanation for the
failure, stating at page 9 of its decision that “after all, these [were] recent
documents of importance that one is expected to keep by the parties concerned”.
At page 10 of its decision, the Board considered the residency certificate
provided by the principal applicant to the Board and noted that “the claimant
could not offer a reasonable explanation why there was an overwriting to show
the last year of residence from 2006 to 2005.” The Board was of the opinion
that the claimant was trying to mislead the Board with a fraudulent document.
And finally, the Board stated that “it was discerning that the claimant’s
national identity card issued on 2002-12-14 [showed] her as a resident of a
suburb in Colombo and not
Batticaloa district.”
[31]
The
applicant submitted that the Board’s failure to consider the police report
constituted a reviewable error as it supports the alleged residency of the
principal applicant. The English translation of the police report reads in part
as follows:
I Mrs.Bawani Varatharajah, age 45 years
old, Hindu, residing at No.2, Old Road, Batticaloa, employment, having Grocery
Store at this address, arrives at the Police Station and stat as follows: […]
[32]
I
agree that this document supports the finding that the principal applicant is a
resident of the Batticaloa district. However, as evidenced by the Board’s
reasons, it considered the police report and accorded it little weight because
of contradictions and inconsistencies made by the principal applicant. At pages
13 and 14 of the Board’s decision, the Board stated:
There was also inconsistency as to who
and when the police report was obtained. The claimant testified at the first
setting that she and her father went the morning after the abduction on August
26, 2005 to file an oral complaint after being kept waiting for more than 6
hours or so. She stated that her FIL [father-in-law] obtained the police report
two days after she made the oral statement. The claimant also stated that she
was not sure whether she identified LTTE to the police as the abductors of her
husband. The claimant compounded the ambiguity of her evidence by adding a
sentence in her amendment- “I do not know which faction.” Notwithstanding the
above anomalies, the report mentions her husband receiving death threats. The
panel observed that there was no mention of death threats either in her
testimony or in her detailed amended PIF narrative. During her counsel’s
redirect, the claimant denied saying anything about death threats in her
statement to the police. It begs the question: why would then death threats be
mentioned in the official version of the police report? Given the above, I
do not give any probative value to the police report. After all, as stated
earlier, it is not much of a problem to get fraudulent documents in Sri Lanka. [Emphasis added.]
[33]
As
such, I find that the Board did not err in failing to consider the police
report. Moreover, the Board’s finding that the principal applicant was not a
resident of Batticaloa district was not unreasonable given the evidence before
it. As stated by the respondent, the burden of proving the claimant’s identity
rests with the claimant (Kante, above). I will not allow the judicial
review on this ground.
D. Issue 4
(1) Did
the Board’s actions give rise to a reasonable apprehension of bias?
Both parties
agree that the appropriate test for a reasonable apprehension of bias is
whether or not an informed person, viewing the matter realistically and
practically and having thought the matter through, would think it more likely
than not that the decision-maker would unconsciously or consciously decide an
issue unfairly (Committee
for Justice and Liberty et al., above).
[34]
The
applicants submitted that the first opportunity to raise a reasonable
apprehension of bias was after the decision was rendered. The applicants
submitted that it was not until then that they discovered that several of the
Board’s reasons were unsupported by any evidence. In my opinion, the
applicants’ argument is two-fold. First, they take issue with the Board’s
decision. This is not an issue of a reasonable apprehension of bias; the
applicants are in effect challenging the Board’s overall decision because they
believe it is unfounded.
[35]
The
applicants’ second bias argument relates to the Board’s questioning during the
hearing. The first opportunity to raise this argument was at the hearing as it
was then that the applicants witnessed the Board’s alleged aggressive and
hostile questioning. Having reviewed the transcripts from both sittings of the
hearing, I do not find that the Board’s questioning amounted to a reasonable
apprehension of bias. The Board member did interject numerous times during
questioning to ask follow-up questions or to clarify, but this does not appear
to have been done in an aggressive manner. The principal applicant’s testimony
was at times very ambiguous and vague, and as a result the Board made
reasonable attempts to better understand the principal applicant’s evidence
through questioning. I find that there is no reasonable apprehension of bias
and will not allow the judicial review on this ground.
E. Issue 5
(1) Did the Board
commit an error of fact in stating the applicants were from China?
The
applicants submitted that the Board’s reference to China on page 17
of the decision was a reviewable error. I simply do not agree. The Board’s
reasons illustrate that it was alive to the applicants’ claims as citizens of Sri Lanka. The mention
of China was obviously
a mistake, but not a reviewable one. Immaterial and isolated mistakes raise no
ground for judicial review (Miranda v. Canada (Minister of Employment
and Immigration) (1993), 63 F.T.R. 81, Nyathi v. Canada (Minister
of Citizenship and Immigration), 2003 FC 1119, Gan v. Canada
(Minister of Public Safety and Emergency Preparedness), 2006 FC 1329). I will
not allow the judicial review on this ground.
[36]
And
finally, with regards to the applicants’ argument that the Board erred in
mentioning the ease with which fraudulent documents can be obtained in Sri Lanka, the
applicants have failed to convince me that this was an error on the part of the
Board.
[37]
The
application for judicial review is therefore dismissed.
[38]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification
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