Tutunjian v. Canada (Minister of Citizenship and Immigration), docket IMM-2580-98

Date: 19990510

Docket: IMM-2580-98

Between:

NAZELY TUTUNJIAN and

SARKIS CHITANIAN and

NANOUR CHITANIAN,

Applicant,

- and -

THE MINISTER,

Defendant.

REASONS FOR ORDER

TREMBLAY-LAMER J.

[1]      This is an application for judicial review brought from a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board ("the tribunal") on April 21, 1998, which found that the applicants were not Convention refugees.

[2]      The principal applicant, Nazely Tutunjian, was accompanied by her two minor children: her son Sarkis Chitanian and her daughter Nanour Chitanian. All are nationals of Syria.

[3]      The applicant came to Canada with her son Sarkis on September 24, 1996. Her daughter was ill at the time and joined them on November 5, 1996. She applied for refugee status on February 25, 1997. She alleged she was the victim of persecution by a radical Moslem organization. Her application was dismissed on April 21, 1998 on the ground that she was not credible.

[4]      The applicant did not in any way challenge the tribunal's decision. She even admitted lying to the tribunal. Instead, she asked that her case be reopened. She alleged she was the victim of a dishonest interpreter who had recommended that she lie to the tribunal since he said any negative information about her husband could affect her credibility. She was now alleging a new ground, namely marital violence.

[5]      It is well settled that judicial review is conducted in light of the evidence submitted to the tribunal. Marital violence was never mentioned before the tribunal as the reason the plaintiff feared returning to Syria. It is therefore not relevant in deciding on this judicial review.

[6]      Further, it is clear that the tribunal has no jurisdiction to reopen a case solely in order to hear new facts. Moreover, the remedy sought is specifically prohibited by s. 46.01(1)(c) of the Immigration Act,¹ which provides that a person claiming to be a Convention refugee is not eligible to have the claim determined if since last coming into Canada the person has been determined not to be a refugee. That is the applicant"s case.

[7]      The application for judicial review is accordingly dismissed.

[8]      However, in view of the alleged marital violence this is a case in my opinion where an application pursuant to s. 114(2) of the Act might be appropriate.

                                 Danièle Tremblay-Lamer

                                     JUDGE

OTTAWA, ONTARIO,

May 10, 1999.

Certified true translation

Bernard Olivier, LL. B.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE No.:                  IMM-2580-98

STYLE OF CAUSE:                  Nazely Tutunjian and Sarkis Chitanian and

                         Nanour Chitanian

                         - and -

                         The Minister

PLACE OF HEARING:              Montréal, Quebec

DATE OF HEARING:                  May 6, 1999

REASONS FOR ORDER BY:              TREMBLAY-LAMER J.

DATED:                      May 10, 1999

APPEARANCES:

Eveline Fiset                      for the applicant

Lisa Maziade                      for the respondent

SOLICITORS OF RECORD:

Eveline Fiset                      for the applicant

Montréal, Quebec

Morris Rosenberg                  for the respondent

Deputy Attorney General of Canada

__________________

¹      R.S.C. 1985, c. I-2.