Date: 19990430
Docket: IMM -1791-98
Ottawa, Ontario, April 30, 1999
Before: Pinard J.
Between:
ENRIQUE FALCON RIOS,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review from the decision rendered on March 20, 1998 by the Convention Refugee Determination Division, determining that the applicant is not a Convention refugee, is dismissed.
| YVON PINARD JUDGE |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990430
Docket: IMM -1791-98
Between:
ENRIQUE FALCON RIOS,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision rendered on March 20, 1998 by the Convention Refugee Determination Division ("the Refugee Division") determining that the applicant is not a Convention refugee as defined in s. 2(1) of The Immigration Act.
[2] The Refugee Division did not find the applicant credible for the following reasons:
- the applicant's vagueness as to his uncle's rank in the army, when he was very close to the latter and his problems were connected with him;
- the improbability of the circumstances surrounding the desertion of the applicant's uncle;
- the fact that the applicant submitted a photo of him alleging that it was taken just after he was beaten by his attackers and the photo shows no indication of the injuries he alleges that he received to his face and eyes;
- the improbability that a false EZLN card was manufactured and left with the applicant, when there is nothing in the documentary evidence to show that this group had membership cards and this would be somewhat inconsistent with the illegal and clandestine status of this group.
[3] So far as the facts are concerned I am not persuaded, after reviewing the evidence before the tribunal, that the latter rendered a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Though I do not endorse the tribunal's manner of describing the evidentiary value of a psychological report, I still consider that the inferences drawn by this specialized tribunal could reasonably be drawn (see Aguebor v. M.E.I. (1993), 160 N.R. 315).
[4] For the rest, the applicant was unable to establish any error which might justify this Court's intervention. Specifically, as to the allegations made by his counsel regarding the way in which the Refugee Division conducted the hearing, it appears after reading the transcript of the latter that not only was the applicant properly heard but his counsel himself expressly stated that he was not challenging the impartiality of the tribunal.
[5] The application for judicial review is accordingly dismissed.
[6] Counsel for the plaintiffs submitted two questions for certification. As the first concerns the appropriate test of a minimum basis it does not constitute a question of general importance for certification in view of the Federal Court of Appeal judgments in Sheikh v. M.E.I. (1990), 112 N.R. 61 and M.E.I. v. Mathiyabaranam (December 5, 1997), A-223-95. The question suggested regarding the compatibility of the Refugee Division's hearing proceedings in Montréal with s. 7 of the Charter of Rights and Freedoms also does not require certification as the factual background in the case at bar does not warrant it and, in any case, the evidence of the general practice followed by the Refugee Division in holding its hearings in Montréal was entirely insufficient. There is thus nothing here for certification (see Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4, at 5 (F.C.A.)).
| YVON PINARD JUDGE |
OTTAWA, ONTARIO
April 30, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-1791-98 |
| STYLE OF CAUSE: ENRIQUE FALCON RIOS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 22, 1999
REASONS FOR ORDER BY: PINARD J.
DATED: APRIL 30, 1999
APPEARANCES:
STEWART ISTVANFFY FOR THE APPLICANT
CLAUDE PROVENCHER FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY, ATTORNEY FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA