Federal Court Decisions

No. IMM-3691-96

FEDERAL COURT OF CANADA

(TRIAL DIVISION)

B E T W E E N :

WATTAGE I. UDAYAKANTH PERERA,

Applicant,

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

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P R O C E E D I N G S

BEFORE THE ASSOCIATE CHIEF JUSTICE,

THE HONOURABLE MR. JUSTICE JAMES JEROME

Court Room No. 7

330 University Avenue, 9th Floor

on Tuesday, the 15th day of July, 1997

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JUDICIAL REVIEW

REASONS FOR JUDGMENT

R E G I S T R A R : Stuart Zeglier

C O U N S E L :

DIANE ROBERTS for the Applicant

KATHRYN HUCAL for the Respondent

I N D E X O F P R O C E E D I N G S

Page No.

Reasons . . . . . . . . . . . . . . . . . . 3-4

Judgment . . . . . . . . . . . . . . . . . . . 4-5

---Court commenced at 10:03 a.m.

---Reasons commenced at approximately 10:22 a.m.

REASONS FOR JUDGMENT:

This application will be denied. My reasons are as follows. I will be very brief.

It is often difficult in cases where an experienced tribunal has taken upon itself to make a determination which is in the area of expertise. It raises difficult questions of law or constitutional questions, things of that sort. But clearly, if there is one area where the jurisprudence is without dissent, and that is where the findings of the tribunal are based on a lack of credibility of the claimant or the lack of credible evidence, even if I were to reach a different conclusion on the evidence, I would not have done so here.

But even if I had, it is not for me to second guess what the tribunal has done, particularly since they see the witnesses, they hear their testimony. And when I hear and conduct a hearing on oral evidence, I rely very heavily on the demeanor of the witness, the appearance, on the plausibility, whether the story makes sense, whether it hangs together. All of these are very much experiential examinations of the testimony. And here the tribunal made those findings adverse to the claimant and I am not going to interfere with them; at the same time, they can be set aside if the Board fails to identify the basis of the doubt.

In my opinion here, the tribunal did not fail on that ground. They identified their reasons why they feel that it would have been much more plausible for the claimant to behave differently, particularly since he had been in the custody of officials of the government, on the basis of concerns over the activities of his partner and they had no trouble with that.

So it raises the question then: If he was in fear, why would he not be able to turn to local authorities? So they have covered, I think, all the elements of the dispute. They have examined the evidence and made objective analysis and they have identified the areas of their concern and found that the evidence of the claimant is not really to be believed, but also not plausible.

Therefore, on both counts, it is clearly for the Court to respect that, and I do.

JUDGMENT

Therefore, the application is dismissed.

Today I will make an endorsement that for reasons given orally the application is dismissed.

Brief written Reasons will be filed, which I will file when I have a chance to examine the transcript for my reasons. Thank you.

THE USHER: Order please, all rise.

THE REGISTRAR: The matter is concluded and this Court is adjourned.

---Whereupon, the case was adjourned at 10:25 a.m.

The foregoing is CERTIFIED to be a true and accurate Computer-Assisted Transcription (C.A.T.) of my shorthand notes, to the best of my skill and ability.

as per:------------------------------- LISA KAMIYA, Court Reporter

Telephone: 416-482-3277

Toronto, July 18, 1997

Quality Control.

Dept.:..........