Date: 20050315
Docket: IMM-2254-04
Citation: 2005 FC 372
Toronto, Ontario, March 15th, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
IULIAN ISTRATE, VALERICA ISTRATE
and ANA ALEXANDRA ISTRATE
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Facts
[1] The Applicant, Iulian Istrate, his wife, Valerica Istrate, and their daughter, Ana Alexandra Istrate, are all citizens of Romania.
[2] In 1990, the Applicant was hired as a member of the Romanian Security Services. In 1998, the Applicant was transferred to the Romanian Information Service and promoted to the anti-terrorist brigade working at the airport. He was eventually transferred to the postal section where he was responsible for packages that were considered sensitive.
[3] The Applicant claims the procedures regarding the security screening of individuals and baggage were being ignored and when he raised this, he was told to keep quiet and his duties were drastically reduced. He was also asked to sign reports which had been falsified. He was told that if he did not sign the reports, he would be charged with insubordination or be the victim of an unfortunate accident. He was demoted, received a pay cut, abused, threatened and suspended without pay on several occasions.
[4] In July of 2002, the Applicant was warned by a friend who worked in Internal Service Protection that they were preparing a case against him, probably involving charges of treason, which would be heard in Military Court. He discussed this with his wife and they decided to take steps to leave Romania. He resigned from his position on December 26, 2002 and they left Romania on January 17, 2003.
Decision of the Board
[5] The Board rejected his refugee claim in a decision dated February 19, 2004, finding his testimony not credible, nor his explanations plausible.
[6] Particularly, the Board did not find credible:
- the fact that the Applicant, in a state of panic due to being informed in July of 2002 that he was going to be arrested, would wait until September of 2002 to apply for a passport, then wait until December 12, 2002 to apply for a visa and only leave the country in January of 2003;
- the Applicant's statement that under military law, he would not be able to defend himself as no trial would be held, and his later statement that he would be given a chance to clear his name before a judge with a lawyer present;
- that the Applicant applied for and received a passport in September of 2002, a period during which his phone allegedly was being tapped, he was being followed and his arrest was supposedly imminent;
- that the Applicant allegedly told his colleagues at the airport when he left on January 17, 2003 that he was going to work for the Embassy, notwithstanding that he had quit his job on December 25, 2002. The Board found it implausible that his colleagues would accept this explanation, knowing he had resigned.
[7] Finally, the Board drew a negative inference from the omissions in his Personal Information Form that his phone was being tapped and he was being followed and did not give much weight to his counsel's submission that this is all part of being investigated. The Board found it was designed to bolster his claim.
Issue
[8] The Applicant argues that the Board's decision should be reversed because:
a) the transcript is so defective that it is impossible to ascertain whether the decision reflects the hearing;
b) that the Board constantly and excessively interrupted his testimony, thereby depriving him of putting his case forward;
c) that the decision is not given in clear and unmistakable form; and
d) that the Board made the decision without regard to the material before it.
Analysis
[9] Given that this case turns on findings of credibility and plausibility, the applicable standard of review is patent unreasonableness. (See Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17 (QL))
[10] While it is true that the transcript has some gaps, this is not fatal to the proceedings as long as the transcript is sufficient to allow the court to properly consider whether:
a) the Board could reasonably come to its conclusions, based on the testimony and evidence before it, and
b) the Applicant had a reasonable opportunity to put his case forward.
[11] Having carefully read the entire transcript, I come to the conclusion that both the foregoing requirements are met. Thus, this case is not similar to that described in Voslaev v. Canada (Minister of Citizenship and Immigration), 2001 F.C.T 928, as argued by the Applicant.
[12] Nor was there a denial of natural justice or procedural fairness which prevented the Applicant from putting his case forward. Rather, the following quote from Rothstein J. (as he then was) in Ambros v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No 299 (QL) would equally apply to this case:
3. ... A panel is entitled and well advised to ask questions to ensure that it is understanding, especially when confusing evidence is being given. Nothing has been pointed out by counsel that appears to be hostility or inappropriately aggressive questioning.
[13] I also fail to see where the decision of the panel is not given in a clear and unmistakable form. The Applicant points to sentences such as "the level of mendacity detected in the claimant's story is indicative of a fabricated story" and "I have assessed the undated document which purports to be a letter written by a daughter of the claimants and who still remains in Romania. Apart from its self-serving nature, it lacks any specificity regarding any warrants or charges or any threat of harm made against the claimant or his family." He points out that it is tautological to say mendacity supports fabrication. He also questions why a letter from a daughter should be construed as self-serving.
[14] While the specific instances pointed out by the Applicant may employ an unusual choice of words, the overall decision is clear and unmistakable. The Board found the Applicant not to be credible and felt various aspects of his story lacked plausibility.
[15] In thus determining credibility and plausibility, the Board discharged its key function. As stated in Aguebor v. (Canada) Minister of Employment and Immigration (1993), 160 N.R. 315 by Dècary J.A.:
4. There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review...
[16] Lastly, the Applicant argues that the Board ignored the documentary evidence before it regarding the corruption of Romanian courts and institutions. Whether it did or not is really not relevant to the decision. Having found that the Applicant was not credible and that various aspects of his story lacked plausibility, it came to the conclusion that the Applicant is not subject to persecution in Romania. That being the case, the state of corruption in Romania is immaterial to its decision.
Conclusion
[17] For the reasons stated above, this application cannot succeed.
ORDER
THE COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2254-04
STYLE OF CAUSE: IULIAN ISTRATE, VALERICA ISTRATE
and ANA ALEXANDRA ISTRATE
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 15, 2005
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: MARCH 15, 2005
APPEARANCES:
Howard P. Eisenberg FOR APPLICANTS
A. Leena Jaakkimainen FOR RESPONDENT
SOLICITORS OF RECORD:
Howard P. Eisenberg FOR APPLICANTS
Hamilton, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada
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