Date: 20010316
Docket: IMM-1877-00
Ottawa, Ontario, March 16, 2001
Before: Pinard J.
Between:
KAUSILA DEVI MUKTAN
SONAM TAMANG
Plaintiffs
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from the decision by the Refugee Division on March 15, 2000 that the plaintiffs are not Convention refugees is dismissed.
YVON PINARD
JUDGE
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010316
Docket: IMM-1877-00
Neutral reference: 2001 FCT 185
Between:
KAUSILA DEVI MUKTAN
SONAM TAMANG
Plaintiffs
- and -
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 ("the RD") on March 15, 2000 that the plaintiffs Kausila Devi Muktan and her minor son Sonam Tamang are not Convention refugees, as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[2] The plaintiff Ms. Muktan is a citizen of Bhutan, while her son, born in 1996, is a citizen of Nepal. The plaintiffs arrived in Canada on July 11, 1997 and claimed refugee status early in August of that year.
[3] The decision in question was based on the fact that the plaintiff lacked credibility and was unable to establish her identity. In this regard, the tribunal noted the following:
[TRANSLATION]
- The RD asked the Office of the High Commissioner for Refugees ("the HCR") to verify the plaintiff's status as a refugee from Bhutan in Nepal, to which the plaintiff agreed. In a letter dated August 10, 1999 (document A-13), Patrick Tezier of the HCR replied that a representative of the organization had visited the camp in Nepal and interviewed Khadka Bahadur Muktan. The register was then found to contain one Kaushila [sic] Devi Muktan who had been registered in 1992. The HCR noted that since the son Sonam Tamang was born in 1996, that is after the plaintiff left the camp in 1994 and married a native of Nepal, the son was not in the register. However, at the interview with Mr. Muktan the latter said that he had an unmarried daughter named Kaushila [sic] Devi Muktan, aged 25. He confirmed that she had left the camp in 1993, was currently working as a teacher in Katmandu and frequently visited her parents, the last visit taking place in October/November 1998. According to Mr. Tezier, the parents "persistently stated that . . . their daughter Kaushila [sic] is not married and that they do not know anybody called Sonam or Suresh".
- Despite the objections of counsel for the plaintiffs the RD admitted document A-13 in evidence as the information did not endanger the life, liberty or security of anyone. The tribunal added "The panel finds the UNHCR answer to be a reasonable response to a request which is to assist the Refugee Division in making an honest and informed determination". As the RD found no reason to doubt the credibility of this document, it attached great weight to it.
- The RD attached no weight to the letter from the plaintiff's parents (document P-6) in which the latter swore that they lied to the HCR representatives because they believed they were investigating rations in the refugee camp. In particular, they said they lied about the plaintiff's age, that she was currently in Canada, they had seen her in October/November 1998 rather than in June 1998, the plaintiff had left the camp in 1993 rather than 1994 and was still teaching in Katmandu in a private school. The RD found that only the reply regarding the date that the plaintiff left the camp was relevant to rations and this reply implied a reduction rather than an increase in the said rations. In its view, the reason given for these lies did not stand up.
[4] The RD therefore concluded as follows:
The panel is faced with having to choose between two letters: one from the UNHCR and one, allegedly, from the claimant's parent. P-6, a self-serving letter, confirms the visit of UNHCR investigators and the answers given to them. We have no reason to doubt the accuracy of the report made in the UNHCR letter. We are, therefore, giving that letter full probative value. That being the case, we remain with the statements contained in that report: Mr. Khadka stated that his daughter is 25 years old and unmarried; she visits her parents regularly; her last visit took place in October/November 1998 and they do not know anybody called Suresh or Sonam. All those statements contradict the claimant's testimony. We are left with the problem concerning the identity of the person who claims refugee status. That identity remains very much in question. We cannot grant refugee status to a person when there is so much uncertainty about her identity.
[5] First, the defendant's objection to the admissibility of Exhibits F, G and H attached to the plaintiff's affidavit is valid. The exhibits are dated after the RD's decision and so could not have been considered by it. Consequently, the exhibits must be excluded and ignored for purposes of the instant application for judicial review.
[6] The allegation by the plaintiffs of a breach of confidentiality is not justified as the plaintiff agreed to the HCR being contacted in order to verify her identity documents and her registration in the Nepal refugee camp. In my opinion, all the information about the plaintiff's situation given to the HCR is relevant and covered by that consent. Further, it should be noted that the record does not indicate the existence of any request for confidentiality made pursuant to s. 69(3) of the Act:
| 69. (3) Where the Refugee Division is satisfied that there is a serious possibility that the life, liberty or security of any person would be endangered by reason of any of its proceedings being held in public, it may, on application therefor, take such measures and make such order as it considers necessary to ensure the confidentiality of the proceedings. |
69. (3) S'il lui est démontré qu'il y a une sérieuse possibilité que la vie, la liberté ou la sécurité d'une personne soit mise en danger par la publicité des débats, la section du statut peut, sur demande en ce sens, prendre toute mesure ou rendre tout ordonnance qu'elle juge nécessaire pour en assurer la confidentialité. |
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[7] Further, s. 68(3) of the Act exempts the RD from the legal and technical rules of evidence to which a judicial tribunal is usually subject:
| 68. (3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. |
68. (3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
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[8] Accordingly, the fact that the HCR letter is based on hearsay does not as such suffice to make it inadmissible, when the RD found it credible.
[9] The rest of the matter is simply a question of credibility and assessment of the facts. In this regard, it is not this Court's function to take the place of the administrative tribunal when, as here, the plaintiffs have failed to show that its 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). After reviewing the evidence I was not persuaded that the RD, which is a specialized tribunal, could not reasonably conclude as it did (see Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 315, at 316 and 317).
[10] Finally, the arguments that the plaintiff had no status in Nepal and was a stateless person do not appear to have been submitted to the RD. They are therefore not relevant, as they cannot show that the tribunal made any error.
[11] For these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 16, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-1877-00
STYLE OF CAUSE: Kausila Devi Muktan et al.
- and -
Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 7, 2001
REASONS FOR ORDER BY: Pinard J.
DATED: March 16, 2001
APPEARANCES:
Stéphanie Valois FOR THE PLAINTIFFS
Pascale-Catherine Guay FOR THE DEFENDANT
SOLICITORS OF RECORD:
Stéphanie Valois FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada