Date: 19980828
Docket: IMM-4691-97
BETWEEN:
WANNAKU RALALAGE AJITH LAKWIJAYA JINADASA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicant seeks to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated October 10, 1997 which dismissed his claim to refugee status in Canada.
[2] The Board's conclusion rests on its findings that the applicant's story, in many respects, was not credible. The applicant challenges many of these findings. Before I deal with the Board's findings on credibility, I should point out that the hearing of the applicant's refugee claim took place in Toronto on April 23, 1997 before Board members Eva Allman and Enrique M. Caspelldi. The Board's decision was rendered on October 10th, 1997 by Board member Caspelldi only. In his decision, Mr. Caspelldi points that Ms. Allman became seriously ill on June 3, 1997 and has not been able to return to work. As a result, Mr. Caspelldi, pursuant to section 63(2) of the Immigration Act rendered the Board's decision. In seeking leave of this Court to commence his application for judicial review, the applicant raised an issue concerning the Board's jurisdiction. The Applicant's submission, as it appears from his written submission, was that one Board member could not, without his consent, decide his refugee claim. However, at the commencement of the hearing, counsel informed me that he was abandoning this issue.
[3] I now turn to the credibility issue. At pages 8 and 9 of its decision, the Board states:
| Given the implausibilities in the claimant's story, the lack of persuasive evidence concerning the claimant's experiences in Sri Lanka, and the claimant's profile, as discussed above, the panel finds that there is not a reasonable chance of persecution should the claimant return to Sri Lanka. |
[4] Although I agree with Mr. Lehrer, counsel for the applicant, that some of the Board's findings are open to criticism, I am of the view that that is not sufficient to allow me to intervene and set aside the Board's decision. This is a case where the words of Joyal J. in Miranda v. The Minister of Employment and Immigration (1993) 63 F.T.R. 81, are entirely on point. That decision, it should be recalled, was rendered shortly after Parliament transferred this Court's jurisdiction over immigration matters from the Appeal Division to the Trial Division. In his brief and "enlightened" reasons, Mr. Justice Joyal sets out the test pursuant to which the Refugee Board's decision should be examined by this Court in deciding whether to intervene. I cannot but agree with the point of view put forward by the learned judge. As I indicated, the reasons are brief and I will therefore reproduce them in full:
| [1] Joyal J.: The following is further to the order and brief oral reasons therefore which I issued at the close of the hearing on this application for judicial review. |
| [2) There is no doubt that counsel for the applicant has articulately set out the parameters to which the Refugee Board must adhere when dealing with a refugee claim. I am in full agreement with him that a departure from these parameters, as well as certain doctrines propounded from time to time by the Federal Court of Appeal, do provide adequate safeguards to an unsuccessful refugee claimant who comes before this court for review. Otherwise, the impugned decision will be quashed. There has been, as we all know, a plethora of Appeal decisions quashing credibility panel or Refugee Board decisions. |
| [3] For purposes of judicial review, however, it is my view that a Refugee Board's decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable. |
| [4] I have now read through the transcript of the evidence before the Board and I have listened to arguments from both counsel Although one may isolate one comment from the Board's decision and find some error, therein, the error must nevertheless be material to the decision reached. And this is where I fail to find any kind of error. |
| [5] It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals. Yet we must always remind ourselves of what the Supreme Court of Canada said on a criminal appeal where the grounds of appeal were some 12 errors in the judge's charge to the jury. In rendering judgement, the court stated that it had found 18 errors in the judge's charge, but that in the absence of any miscarriage of justice, the appeal could not succeed. |
| [6] This is the point I am trying to establish here. One may look at the decision of the Board, then one may balance it off against the evidence found in the transcript and the evidence of the claimant himself in trying to justify his objective as well as subjective fears of persecution. |
| [7] On the basis of that analysis, I find that the conclusions reached by the Refugee Board are well-founded on the evidence. There can always be conflict on the evidence. There is always the possibility of an opposite from a differently constituted Board. Anyone might have reached a different conclusion. Different conclusions may often be reached if one perhaps subscribes to different value systems. But in spite of counsel for the applicant's thorough exposition, I have failed to grasp forcefully the kind of error in the Board's decision which would justify my intervention. The Board's decision, in my view, is fully consistent with the evidence. |
| [8] The Trial Division of this court is just now entering into this field of judicial review, and I believe that it will try to subscribe to and respect the guidelines which have been expressed by the Court of Appeal. This is easily said but not always easily applied when dealing with particular cases. I should hope that counsel will share that concern as the Trial Division assumes this new jurisdiction. |
[5] Like Joyal, J. in Miranda, I am of the view that the conclusions reached by the Board, on the evidence, are not unreasonable. During a most interesting and lengthy exchange with Mr. Lehrer, it became clear to me that given the evidence before the Board it was possible to take a view of the case which differed from the one taken by the Board. However, I believe that the view taken by the Board is far from being unreasonable. Consequently, I am not prepared to intervene.
[6] In reaching this conclusion, I am also relying on the decision rendered by the Federal Court of Appeal in Aguebor v. M.E.I. (1993) 160 N.R. 315. That case dealt with findings of implausibility made by the Board. At pages 316 and 317, Décary, J.A., for the Court, made the following remarks:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
[7] Décary, J.A. , makes it crystal clear that in attacking the decision of the Board, an applicant must demonstrate that the findings "could not be reasonably have been drawn". The Aguebor decision, in my view, simply confirms the test set out by Joyal, J. in Miranda. Unfortunately, the applicant has not demonstrated to my satisfaction that the Board's findings of implausibility "could not reasonably have been drawn".
[8] For these reasons, the application for judicial review shall be dismissed.
"Marc Nadon"
Judge
Toronto, Ontario
August 28, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4691-97
| STYLE OF CAUSE: WANNAKU RALALAGE AJITH LAKWIJAYA JINADASA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: THURSDAY, AUGUST 27, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: NADON, J.
DATED: FRIDAY, AUGUST 28, 1998
APPEARANCES:
Mr. Douglas Lehrer
For the Applicant
Ms. Andrea Horton
For the Respondent
SOLICITORS OF RECORD:
Douglas Lehrer and Vandervennen Lehrer
| Barristers & Solicitors |
| 45 St. Nicholas Street |
| Toronto, Ontario |
| M4Y 1W6 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980828
Docket: IMM-4691-97
Between:
| WANNAKU RALALAGE AJITH LAKWIJAYA JINADASA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER