Bharath v. Canada (Minister of Citizenship and Immigration), 2001 FCT 528

Date: 20010525

Docket: IMM-5019-00

Neutral Citation: 2001 FCT 528

BETWEEN:

                      RENUKA SHYAMALEE BHARATH

                      MICHELLE CHRISTINA BHARATH

                                                                                        Applicants

                                                - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                     Respondent

                                REASONS FOR ORDER

TREMBLAY-LAMER J.:

[1]    This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated August 17, 2000, which determined that Ms. Renuka Shyamalee Bharath (mother) and Michelle Christina Bharath (daughter) (the applicants) were not Convention refugees.

[2]    The applicants are citizens of Sri Lanka who came to Canada on April 23, 1998, and alleged to have a well-founded fear of persecution by the Liberation Tigers of Tamil Eelam (LTTE) and by the Sri Lankan security forces (including the army and the police). The applicant mother claims Convention refugee status, for her and her daughter, on the basis of her membership in a particular social group, composed of Sinhalese women married to Tamils born in Colombo who are perceived as being supportive of the LTTE and perceived by the LTTE as having betrayed them to the Sri Lankan authorities.

[3]    The applicants' first claim was heard on September 10, 1998, before Board members Julie Taub and Milan Then. On October 16, 1998, the applicants were found not to be Convention refugees because the applicant mother failed to satisfy the Board that she had presented any credible or trustworthy evidence relative to their claims. The Board determined not only that she and her daughter were not Convention refugees but that pursuant to subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2, there was no credible basis for their claims.

[4]    By its order dated March 12, 1999, this Court dismissed the applicants' application for leave and for judicial review of the Board's decision dated October 16, 1998.

[5]                The applicants subsequently left Canada and went to the United States for approximately 90 days between August 1999 and November 1999. The applicants returned to Canada on November 25, 1999, and again claimed Convention refugee status.

[6]                The applicants' second claim was heard on April 10, 2000, before Board members Milan Then and Hugh B. Evelyn. The applicants were represented at their hearing by counsel. It is important to note that, at the outset of the hearing, it was mentioned to the applicants that Mr. Milan Then was on the panel at the applicants first claim.

[7]                After considering the applicants' new evidence with respect to their prospective fear of persecution, the Board determined the applicants not to be Convention refugees. The Board found the applicant mother to be generally lacking in credibility and that both required elements of a well-founded fear of persecution, the subjective fear and a valid basis for such a fear, were lacking in these claims.

[8]                In their written submissions, the applicants submit that Board member Milan Then, having made an adverse finding of credibility with respect to the applicant mother's evidence at the first hearing, could not be expected to approach the second claim with an open mind and that in the circumstance there was a reasonable apprehension of bias. However, counsel for the applicants conceded at the hearing that in light of the fact that the applicants were represented by counsel and that they were aware that Board member Milan Then had determined their first Convention refugee status claim, failure to raise the issue constitutes a waiver.

[9]                Regarding the issue of the applicants' credibility, I am satisfied that overall the Board's findings are not perverse or capricious, and are reasonably supported by evidence.

[10]            This application for judicial review is dismissed.

                                                                 "Danièle Tremblay-Lamer"

JUDGE

OTTAWA, ONTARIO

May 25, 2001.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD