Date: 20030225
Docket: IMM-298-02
Neutral Citation: 2003 FCT 219
Between:
Picklu DAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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 January 9, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant, Picklu Das, is a citizen of Bangladesh. He claims refugee status on the ground of religion, namely Hindu.
The Board found the applicant not to be a credible witness and rejected his claim for refugee status. It supported its decision with the following reasons:
- when the applicant was questioned about his personal involvement in religious and cultural activities in his Hindu community, he could not answer clearly and spontaneously. He was repeatedly vague, evasive, hesitant and ill at ease, and he answered by reiterating verbatim the contents of his Personal Information Form ("PIF");
- the applicant testified that he participated in religious singing, but could not give details about the songs, stating that he only played the drum in accompaniment; and
- the applicant testified that he collected money from affluent families to support the Hindu community, but he was unable to describe how this was done.
The Board also found that the applicant lacked a subjective fear of persecution, because during his trip to Canada he dealt with immigration authorities in Germany without taking the opportunity to claim refugee status in that country.
Finally, the Board found the applicant's answer to question 34 of his PIF to be inaccurate and misleading. The applicant stated in his PIF that he arrived in Toronto on September 26, 2000 and claimed refugee status on arrival, and yet immigration documents indicate that refugee status was claimed on October 5, 2000.
Because the Board did not believe the applicant's allegations and found him not be credible, it did not give his documents any probative value.
Upon reading the transcript of the hearing, it is clear that the Board did not err in stating that the applicant did not respond clearly or spontaneously, and that he was repeatedly vague and evasive. Whether or not he was hesitant and ill at ease is a matter which only the Board can assess. This perception is enough, given the overall content of the hearing, for the Board to have reached a conclusion of non-credibility (Mostajelin v. Minister of Employment and Immigration (January 15, 1993), A-122-90 and Wen v. Minister of Employment and Immigration (June 10, 1994), A-397-91), and this amounts to a finding that there is no credible evidence for the applicant's claim. In that context, the applicant's submission that the Board erred in law by failing to address the issue that he was a "refugee sur place" is without merit. Furthermore, the argument was not clearly made before the Board. The amendment to the PIF and the submissions made by the applicant's counsel addressed no more than the general situation of Hindus in Bangladesh.
The applicant further submits that the Board made an erroneous finding of fact by disbelieving that he had claimed refugee status on arrival in Canada. In fact, as is apparent from the documentary evidence which was before the Board, the applicant indicated his desire to claim refugee status the day he arrived in Canada. The Acknowledgement of Convention Refugee Claim is dated September 26, 2000. However, although the Board erred on this point, it is not a crucial factor in its decision, given its main finding that the applicant was vague, unresponsive and evasive during the hearing.
The applicant argues that the Board erred in finding that he had no subjective fear because he failed to claim refugee status in Germany. There was evidence before the Board that the applicant had spoken with immigration officials in Germany and had been detained by them, at least for a short time. German officials had a copy of the applicant's travel documents on file, and provided these upon the request of Canadian authorities. The applicant did not take the opportunity to claim refugee status in Germany. Although it has been found that a failure to claim refugee status when travelling through a country which is signatory to the 1951 Convention indicates a lack of subjective fear on the part of the applicant (Skretyuk v. Canada (M.C.I.) (1998), 47 Imm.L.R. (2d) 86 (F.C.T.D.)), in this case the time spent in Germany was limited to that required for a transit to Canada. I do not think the applicant's failure to claim refugee status in that time was a sufficient basis for a finding of lack of subjective fear.
Finally, the applicant submits that the general rejection of the applicant's documents in no way satisfies the Board's duty to give clear and unmistakable reasons for its decision. However, a tribunal must be presumed to have considered all of the evidence that was presented to it, and it is not obliged to mention in its reasons all the evidence it has taken into account before rendering its decision (Taher v. Minister of Citizenship and Immigration (September 7, 2000), IMM-5255-99). The Board's reasons explain that the applicant's claim failed because his testimony was repeatedly vague and evasive, and he was hesitant, ill at ease and unable to relate his story clearly and spontaneously.
The Board erred in finding that the applicant lacked a subjective fear because he did not claim refugee status in Germany, and in finding that the applicant did not claim refugee status upon his arrival in Canada. However, these errors are not sufficient to disturb the Board's general finding of lack of credibility, which was not unreasonable in the particular circumstances of this case (see, for example, Aguebor c. M.E.I. (1993), 160 N.R. 315 (F.C.A.) and Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (C.A.)).
For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
February 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-298-02
STYLE OF CAUSE: Picklu DAS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 11, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: February 25, 2003
APPEARANCES:
Me Diane N. Doray FOR THE APPLICANT
Me Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mrs. Diane N. Doray FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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