Khan v. Canada (Minister of Citizenship and Immigration), 2004 FC 6

Date: 20040106

Docket: IMM-5030-03

Citation: 2004 FC 6

Ottawa, Ontario, this 6^th day of January 2004

Present:           THE HONOURABLE MR. JUSTICE SIMON NOËL                                

BETWEEN:

                                                               ANISUL HOQ KHAN

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 The Applicant has presented a Motion under Rule 369 for reconsideration pursuant to Rules 397 and 399 of the Federal Court Rules, 1998 of my Order dated October 30^th, 2003 in which the Applicant's request for leave to commence judicial review of an Immigration and Refugee Board's decision (Refugee Protection Division) dated June 11^th, 2003 was dismissed. There is no issue regarding extension of time since Counsel for the Applicant only received the Order on November 24^th, 2003.

[2]                 I have reviewed all the documentation (which included the Refugee Protection Division's decision) and all of the written arguments submitted both at the initial stage as well as those presented at the reconsideration stage of the proceedings.

[3]                 The Motion for reconsideration will not to be granted because I did have at my disposal all the documentation and memoranda submitted by both parties at the initial stage and I did not overlook or omit any of the arguments presented.

[4]                 A close reading of the Refugee Board's decision dated June 11^th, 2003 makes it clear that there is a serious problem with the Applicant's credibility regarding the claim. A few references from page 2 of the decision help illustrate this conclusion :

" Throughout his testimony, the claimant evaded questions, and remained vague as to his activities with the Awami League ... he managed to get in and out of Bangladesh to travel to Malaysia and Spain without any problem whatsoever, and he returned to his country where he feared persecution ... it is surprising ... His answers were of a vague, general and superficial nature ... he evaded the question and answered that the country was in chaos and that there were strikes ..."

Read as a whole, the decision clearly identifies specific examples where the Applicant's claim lacks credibility and because it is comprehensive, permits the reader to easily grasp the reasoning behind the conclusion. Furthermore, the other conclusions regarding the inclusion were significant factors which also lead to this determination.

[5]                 I was and still am of the opinion therefore that the Tribunal's decision regarding the inclusion was reasonable. The arguments concerning the exclusion became of secondary importance since the facts in the matter lead me to the conclusion that a decision based on the inclusion would stand to a review. (See Moreno v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 298).

           THIS COURT ORDERS THAT:                               

The Motion for reconsideration is dismissed without cost.

             "Simon Noël"                

        Judge

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-5030-03

STYLE OF CAUSE: ANISUL HOQ KHAN vs. MCI

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                       THE HONOURABLE MR. JUSTICE SIMON NOËL

DATED:                      January 6^th, 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: