Date: 20020829
Docket: IMM-4646-01
Neutral Citation: 2002 FCT 907
Between:
Mohamad Hassanul KABIR,
DEMANDEUR;
- and -
LE MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION,
DÉFENDEUR.
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated September 6, 2001, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant is a citizen of Bangladesh. He alleges to have a well-founded fear of persecution by reason of his political opinion.
The Board determined the applicant not to be a Convention refugee because of issues of plausibility, credibility and identity.
The applicant first argues that the Board'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. In the instant case, the Board clearly and unequivocally determined the applicant not to be credible and offered several examples in its decision where the applicant contradicted himself and was "ill at ease"when given the opportunity to explain obvious discrepancies in his testimony. Without necessarily adopting the Board's analysis in its entirety, I am not persuaded, after examining the evidence as well as the transcript of the hearing, that the inferences of the Board, which is a specialized tribunal, could not reasonably have been drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)).
Further, the applicant, at paragraph 15 of his written submissions, attempts to explain why he would not have remembered when the Special Powers Act had first been implemented. The following was explained by Justice Cullen in Muthuthevar v. Minister of Citizenship and Immigration (February 15, 1996), IMM-2095-95 (F.C.T.D.) and very recently confirmed in Hosseini v. Canada (M.C.I.), [2002] F.C.J. No. 509 (T.D.) (QL), by Justice Blanchard:
. . . While the applicant seeks to "explain away" testimony that the Board found implausible, it must not be forgotten that these same explanations were before the Board and were not accepted as credible. The applicant has not directed to this Court evidence that was ignored or misconstrued, and in the absence of such a finding, the Board's conclusions on credibility must stand.
The applicant further argues that the Board erred in determining that there was no evidence to show that he was a student from Dhaka College. The Federal Court of Appeal in Florea v. Minister of Employment and Immigration, (June 11, 1993), A-1307-91, confirmed that unless the contrary is shown, the Board is assumed to have considered all the evidence presented to it. In the absence of clear proof that a relevant and significant piece of evidence was not considered by the Board, there is a presumption that the panel assessed all of the evidence before it (Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 at 318 (F.C.A.)).
In the case at bar, the Board found that the applicant's ID card from Dhaka College filed under Exhibit P-5 did not show that the applicant was ever a student. As stated in the decision and confirmed at pages 558 to 560 of the Tribunal Record, the applicant testified that he had lost his original ID card from Dhaka College after his arrival in Canada, but had provided at the hearing a photocopy of this document. In light of the vague and confusing explanations provided by the applicant as to when he had realized he had lost his ID card, I do not feel that evidence was ignored by the Board. I feel moreover that the Board's decision is well-founded both on the applicant's testimony and the documentary evidence. I am also of the impression, given the circumstances, that the Board's perception that the applicant is not credible in fact amounts to a conclusion that there was no credible evidence to justify his claim to refugee status (Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244 (F.C.A.)). The Board confirms this statement at page 3 of its decision:
. . . The panel does not believe the explanations given and concludes that the claimant has no document to discharge his burden of proof as to his studies at Dhaka College. This not only undermines his credibility, since the whole story is based upon his political career at Dhaka college, but it also affects his identity. . . .
Consequently, I feel that the conclusions reached by the Board were reasonable and justified.
For all these reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
August 29, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4646-01
STYLE OF CAUSE: Mohamad Hasanul Kabir v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 9, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: August 29, 2002
APPEARANCES:
Ms. Diane N. Doray FOR THE APPLICANT
Ms. Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joseph W. Allen & Associés FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario