Nadarajah v. Canada (Minister of Citizenship and Immigration)

Nadarajah v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2004-09-10
Neutral citation
2004 FC 1234
File numbers
IMM-6855-03
Decision Content
Date: 20040910
Docket: IMM-6855-03
Citation: 2004 FC 1234
BETWEEN:
SRITHARAN NADARAJAH
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated July 23, 2003, that the applicant is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Sritharan Nadarajah (the applicant) is a citizen of Sri Lanka alleging that he has a well-founded fear of persecution in his country because of his Tamil race, his Hindu religion, his nationality, his membership in a social group of young Tamils from the North and his perceived political opinions. The applicant also alleges that he is a person in need of protection.
[3] The IRB determined that the applicant is not a "Convention refugee" or a "person in need of protection" because he is not credible because of omissions, contradictions, inconsistencies and implausibilities in his story.
[4] It is well established that in matters of credibility, this Court cannot substitute itself for the IRB when, as in this case, the applicant fails to establish that the decision of that specialized tribunal was based on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). In fact, after reviewing the evidence and the transcript of hearing before the panel, I am persuaded that the inferences drawn by this panel could reasonably have been drawn (see Aguebor v. Canada (M.E.I.), 160 N.R. 315 (F.C.A.)). Further, in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, the Federal Court of Appeal held that the panel's perception that the applicant is not a credible witness may lead to the finding that there is no credible basis for the claim.
[5] Furthermore, the IRB noted that the applicant's conduct was inconsistent with his alleged fear. In fact, the evidence indicates that before arriving in Canada the applicant spent 15 days in Singapore and one month in Athens without making a refugee claim there. It is settled law that the IRB can find that the applicant's subjective fear lacks credibility when the applicant fails to claim refugee status when he is in a country which is a signatory of the Convention (see Ilie v. Canada (M.C.I.), [1994] F.C.J. No. 1758 (F.C.T.D.) (QL)).
[6] For all of these reasons, the application for judicial review is dismissed.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 10, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6855-03
STYLE OF CAUSE: SRITHARAN NADARAJAH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 11, 2004
REASONS FOR ORDER: Pinard J.
DATE OF REASONS: September 10, 2004
APPEARANCES:
Myriam Harbec FOR THE APPLICANT
Alexandre Tavadian
Sébastien Dasylva FOR THE RESPONDENT
SOLICITORS OF RECORD:
Myriam Harbec FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec