Lubana v. Can. (M.C.I.) (2003), 228 F.T.R. 43 (TD)
MLB headnote and full text
Temp. Cite: [2003] F.T.R. TBEd. FE.031
Rajwant Kaur Lubana (applicant) v. The Minister of Citizenship and Immigration (respondent)
(IMM-2936-02; 2003 FCT 116)
Indexed As: Lubana v. Canada (Minister of Citizenship and Immigration)
Federal Court of Canada
Trial Division
Martineau, J.
February 3, 2003.
Summary:
The Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board found that Lubana was not a Convention refugee. Lubana applied for judicial review.
The Federal Court of Canada, Trial Division, allowed the application, set aside the CRDD’s decision and remitted the matter to a different panel of the CRDD for redetermination.
Aliens – Topic 1323.4
Admission – Refugee protection, Convention refugees and persons in need of protection – Credible basis for claim – The Convention Refugee Determination Division (CRDD) found that Lubana was not a Convention refugee based on its negative credibility finding – The Federal Court of Canada, Trial Division, held that the CRDD’s general negative credibility finding was patently unreasonable – First, the CRDD never pointed to any distinct or articulable contradiction, it always described its difficulties in ambivalent terms – Second, Lubana’s background (a woman from rural India) and psychological condition had to be considered – Third, the CRDD’s negative credibility finding was based chiefly on matters related to the agent who had brought Lubana to Canada – See paragraphs 15 to 18.
Aliens – Topic 1323.4
Admission – Refugee protection, Convention refugees and persons in need of protection – Credible basis for claim – The Convention Refugee Determination Division (CRDD) found that Lubana was not a Convention refugee based on its negative credibility finding – The Federal Court of Canada, Trial Division, held that the CRDD’s general negative credibility finding was patently unreasonable – The court stated, inter alia, that the fact that Lubana travelled on a false passport and claimed at the port of entry that it was genuine could hardly support a general negative credibility finding – Whether a person told the truth about his or her travel documents had little direct bearing on whether the person was a refugee – Nor was this a case where the identity of the claimant had been questioned by the CRDD or where the absence of a valid passport had proven to be problematic – See paragraph 18.
Aliens – Topic 1323.4
Admission – Refugee protection, Convention refugees and persons in need of protection – Credible basis for claim – The Convention Refugee Determination Division (CRDD) rejected Lubana’s refugee claim based on a negative credibility finding – The Federal Court of Canada, Trial Division, held that the CRDD’s negative credibility finding was patently unreasonable – The only inconsistency was the alleged omission of the central persecutory events in Lubana’s Port of Entry Statement and that was not a real inconsistency – The pivotal incident on which Lubana’s claim was based was an alleged rape by police – In her Port of Entry Statement she had stated that the police had “insulted” her – Lubana’s culture discouraged an open discussion of rape and had prompted her to use euphemisms instead – Her use of the expression “insulted” tended to indicate the authenticity of her story rather than undermine her credibility – In any event, if there was more than one interpretation to the Port of Entry Statement, then the CRDD should have given the benefit of the doubt to Lubana in view of the rest of the uncontroverted evidence which supported her claim – See paragraphs 19 to 25.
Cases Noticed:
Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 617 (T.D.), refd to. [para. 7].
Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 7].
Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.T.R. Uned. 103 (T.D.), refd to. [para. 8].
Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 564 (T.D.), refd to. [para. 8].
Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.), refd to. [para. 9].
Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.), refd to. [para. 9].
Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (F.C.A.), refd to. [para. 9].
Shahamati v. Minister of Employment and Immigration, [1994] F.C.J. No. 415 (F.C.A.), refd to. [para. 10].
Attakora v. Minister of Employment and Immigration (1989), 99 N.R. 168 (F.C.A.), refd to. [para. 11].
Owusu-Ansah v. Minister of Employment and Immigration (1989), 98 N.R. 312 (F.C.A.), refd to. [para. 11].
Takhar v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 261 (T.D.), refd to. [para. 11].
Rahnema v. Canada (Solicitor General) (1993), 68 F.T.R. 299 (T.D.), refd to. [para. 12].
El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 15 (T.D.), refd to. [para. 12].
Reyes v. Minister of Employment and Immigration, [1993] F.C.J. No. 282 (F.C.A.), refd to. [para. 12].
Sanghera v. Minister of Employment and Immigration (1994), 73 F.T.R. 155 (T.D.), refd to. [para. 12].
Nievas et al. v. Canada (Ministre de la Citoyenneté et de l’Immigration) (1998), 144 F.T.R. 224 (T.D.), refd to. [para. 12].
Fajardo v. Minister of Employment and Immigration (1993), 157 N.R. 392 (F.C.A.), refd to. [para. 13].
Sheikh v. Canada (Minister of Citizenship and Immigration) (2000), 190 F.T.R. 225 (T.D.), refd to. [para. 13].
Frimpong v. Minister of Employment and Immigration (1989), 99 N.R. 164 (F.C.A.), refd to. [para. 14].
Elazi v. Canada (Ministre de la Citoyenneté et de l’Immigration) (2000), 191 F.T.R. 205 (T.D.), refd to. [para. 18].
Rajaratnam v. Minister of Employment and Immigration (1991), 135 N.R. 300 (F.C.A.), refd to. [para. 20].
Authors and Works Noticed:
Hathaway, James C., The Law of Refugee Status (1991), pp. 84, 85 [para. 13].
Counsel:
Jean-François Bertrand, for the applicant;
Christine Bernard, for the respondent.
Solicitors of Record:
Jean-François Bertrand, Montreal, Quebec, for the applicant;
Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
This application was heard on January 23, 2003, at Montreal, Quebec, before Martineau, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on February 3, 2003.
