Date: 20020110
Docket: IMM-1335-01
Ottawa, Ontario, January 10, 2002
Before: Pinard J.
Between:
RONY HILAIRE
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from a decision by the Refugee Division on February 20, 2001 that the plaintiff is not a Convention refugee is dismissed.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20020110
Docket: IMM-1335-01
Neutral citation: 2002 FCT 22
Between:
RONY HILAIRE
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division on February 20, 2001 that the plaintiff is not a Convention refugee as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The plaintiff is a citizen of Haiti. He alleged that he was persecuted in that country for his political opinions and membership in a particular social group.
[3] The Refugee Division refused to grant the plaintiff refugee status, essentially concluding that he was not credible and that it was not reasonable to think he would be persecuted if he returned to his country of nationality.
[4] The Refugee Division is a specialized tribunal which has the power of assessing the plausibility of testimony provided the inferences that it draws are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and the reasons are set out in a clear and understandable way (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199, at 201 (F.C.A.)).
[5] In the case at bar the Refugee Division clearly and without ambiguity concluded that the plaintiff lacked credibility and in its reasons gave specific examples of contradictions and improbabilities contained in his Personal Information Form, his oral testimony and the documentary evidence. After considering the plaintiff's arguments and re-reading the transcript of his testimony, I am not persuaded that the Refugee Division's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).
[6] Additionally, the plaintiff alleged that the Refugee Division had not reviewed all the documentary evidence in support of his claim. Unless there is clear and persuasive evidence to the contrary it has to be assumed that the Refugee Division has considered all the evidence (Florea v. The Minister of Employment and Immigration, (June 11, 1993), A-1307-91). Generally, the fact that the documentary evidence is not mentioned in the reasons is not fatal to its decision (Hassan v. Minister of Employment and Immigration (October 22, 1992), A-831-90).
[7] Here the Refugee Division expressly indicated in its reasons what the documentary evidence consisted of and stated that the evidence enabled it to draw certain conclusions, namely that the plaintiff lacked credibility and had no subjective fear.
[8] We should bear in mind what was said in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at 244:
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
[9] Accordingly, the Refugee Division's perception that the plaintiff was not credible may amount in fact to a finding that there was no credible evidence to support his refugee status claim. In the case at bar, I am not persuaded, in view of the plaintiff's lack of credibility, that the Refugee Division ignored the evidence or that its findings were unreasonable.
[10] The plaintiff further submitted that the Refugee Division erred in concluding that there was no connection to the Convention, based solely on the fact that he was not a political personality. I am not persuaded that this is a correct interpretation of the decision. It is clear from reading its reasons that the Refugee Division simply listed several contradictions between the plaintiff's oral testimony and his written account and ultimately concluded that he lacked credibility.
[11] Finally, the plaintiff argued that the tribunal's decision infringed the Canadian Charter of Rights and Freedoms and the International Covenant on Civil and Political Rights. I consider that argument premature since the decision a quo is not the final stage in deportation of the plaintiff (Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3 (F.C.A.)).
[12] For these reasons, the application for judicial review is dismissed.
OTTAWA, ONTARIO
January 10, 2002
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1335-01
STYLE OF CAUSE: RONY HILAIRE v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOVEMBER 22, 2001
REASONS FOR ORDER BY: PINARD J.
DATED: JANUARY 10, 2002
APPEARANCES:
STEWART ISTVANFFY FOR THE PLAINTIFF
THIMY DUNG TRAN FOR THE DEFENDANT
SOLICITORS OF RECORD:
STEWART ISTVANFFY FOR THE PLAINTIFF
MONTRÉAL, QUEBEC
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
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