Date: 20000929
Docket: IMM-5842-99
Ottawa, Ontario, the 29th day of September 2000
Present: The Honourable Mr. Justice Pinard
Between:
Fauvel KINYAMBA A KINYAMBA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 12, 1999, determining that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
John Arrayet
Date: 20000929
Docket: IMM-5842-99
Between:
Fauvel KINYAMBA A KINYAMBA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the panel) dated November 12, 1999, determining that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The following passage taken from the decision of the panel clearly shows that the panel did not believe the applicant, because of the contradictions and implausibilities in the evidence:
After having analysed all the testimony and documentary evidence, the panel makes a negative determination because both the claimant and his story lack credibility.
The evidence submitted contains significant contradictions that the claimant has not explained.
...
These contradictions relate to a central element of the claimant's story in that they bear on the motives that the authorities supposedly had for arresting him. Since they go to the heart of his claim, the credibility of his whole story is irreparably compromised.
...
The claimant's story contains other implausibilities that further undermine the credibility of the whole story.
[3] It is not up to this Court to substitute its assessment of facts and credibility for that of a specialised tribunal, when the claimant fails to establish that the decision in question was based on an erroneous finding that was made perversely or capriciously or without regard for the material before it.
[4] In this case, the evidence shows not only that the contradictions noted by the panel have not been explained, but also that they relate to the very reason for the persecution alleged by the claimant. Therefore, the perception that the claimant was not credible on a critical point in his claim in fact amounts to a finding that there was simply no sufficiently credible evidence to justify the refugee claim in question (see Sheikh v. Canada (M.E.I), [1990] 3 F.C. 238 (C.A.)) The additional implausibilities noted by the panel seem to me, in general, to be sufficiently serious to further undermine the applicant's credibility.
[5] Considering that, in the circumstances, the fact that the panel did not refer specifically to certain parts of the documentary evidence in its decision is not an error, having regard to the settled presumption that the panel considered all the evidence submitted to it, as in this case it expressly said it had done; and considering moreover that it was not unreasonable, having regard to the evidence for the panel to draw an adverse inference regarding the applicant's subjective fear, when he had stayed in at least three countries that are signatories of the Convention after leaving the Democratic Republic of Congo without applying for Convention Refugee status, intervention by this Court would be totally unwarranted.
[6] The application for judicial review is therefore dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
September 29, 2000
Certified true translation
John Arrayet
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-5842-99
STYLE OF CAUSE: FAUVEL KINYAMBA A KINYAMBA
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 17, 2000
REASONS FOR ORDER OF PINARD J.
DATED: SEPTEMBER 29, 2000
APPEARANCES:
MARIE JOSÉE L' ECUYER FOR THE APPLICANT
PATRICIA DESLAURIERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARIE JOSÉE L' ECUYER FOR THE APPLICANT
Montréal, Quebec
Morris Rosenburg FOR THE RESPONDENT
Deputy Attorney General of Canada