Digests

Kanvathipillai v. Canada (Minister of Citizenship and Immigration)

IMM-4509-00

2002 FCT 881, Pelletier J.

16/8/02

16 pp.

Judicial review of dismissal of Convention refugee claim on ground lacked credible basis--Following refusal of first refugee claim, applicants left Canada for United States-- Returned 90 days after departure, submitted fresh refugee claims--CRDD finding applicants not credible, not discharging burden to show reasonable fear of persecution upon return to Sri Lanka, no credible basis for claim--(1) Applicants' submissions suggesting where applicant not returning to country of origin, test of refugee status one of country conditions since cannot have been new instances of persecution if applicant not returning home--Amounts to saying applicant need only show objective basis for fear of persecution--But since definition of Convention refugee has subjective, objective components, determination person refugee on strength of evidence of objective conditions alone would eliminate subjective element of definition--Anomalous result if persons making first claim for refugee status had to show both subjective, objective basis for well-founded fear of persecution, but after 90 days' sojourn in United States, could succeed in second claim by showing only objective basis for fearing persecution--In Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.) Hugessen J.A. expressing doubt as to role of subjective element where objective basis shown to exist--But reason for insisting on subjective sensation of fear that refugee system exists to protect those who are afraid of persecution and for whom no state protection--Those whose fear due to inability to appreciate surroundings may be entitled to protection on other grounds, whereas those who are sufficiently robust to protect themselves need no protection from international community--While not model of clarity, CRDD's reasons addressing issue of well-founded fear of persecution on basis of events occurring after applicants' first claim dismissed--(2) Trial Division divided as to whether distinct reasons required where finding of no credible basis made--Those who see no need to provide reasons for "no credible basis" finding arguing that in order to establish claim to refugee status, applicant must provide credible evidence in support of that claim--Consequently, reasons showing basis for finding lack of credibility will necessarily show basis of finding of "no credible basis": Nizeyimana v. Canada (Minister of Citizenship and Immigration) (2001), 204 F.T.R. 139 (F.C.T.D.)--Foyet v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 181 (F.C.T.D.) summarizing argument in favour of reasons--L'Heureux-Dubé J. concluding written reasons required to foster better decision-making in case of humanitarian and compassionate decisions in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 resonating in context of "no credible basis" decisions--On other hand, consequences of "no credible basis" decisions significant, but bounded by procedural, legal safeguards against deportation to place where real risk of inhumane treatment--Where CRDD assessing all of oral and documentary evidence, reasons for concluding no trustworthy evidence supporting applicants' claim will necessarily disclose basis of conclusion as to "no credible basis"--Adherence to test set out by F.C.A. in Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537 (C.A.), as to basis upon which CRDD may make finding of "no credible basis" for claim obviating need for distinct reasons justifying such finding--Applications dismissed.