Date: 20040809
Docket: IMM-3079-03
Citation: 2004 FC 1085
Ottawa, Ontario, this 9th day of August, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
BOLESLAW EDWARD POSLUSZNY
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Boleslaw Posluszny came to Canada from Poland in 2000. He says that he was escaping the mistreatment he endured in Poland because of his half-Roma ethnicity. A panel of the Immigration and Refugee Board heard his testimony and reviewed the other evidence he presented. The Board determined that Mr. Posluszny had not presented credible evidence to support his allegations of persecution and dismissed his claim for refugee protection.
[2] Mr. Posluszny argues that the Board made serious errors when it discounted his testimony and documentary evidence. He asks me to order a new hearing. I cannot find any basis for overturning the Board's decision and must, therefore, dismiss this application for judicial review.
I. Issue
[3] There is really just one issue in this case: Was the Board's conclusion that Mr. Posluszny's claim lacked credibility justified on the evidence?
II. Analysis
[4] I can overturn the Board's decision only if I find that it was patently unreasonable, in the sense that it was entirely unsupported by the evidence before it.
Was the Board's conclusion that Mr. Posluszny's claim lacked credibility justified on the evidence?
[5] The Board made a series of findings that were adverse to Mr. Posluszny's claim. In each case, the Board justified its conclusion with reference to the evidence before it.
(i) Language
[6] Mr. Posluszny testified that even though he was raised mainly in a Romani milieu and surrounded by Roma people, he cannot speak Romani. The Board cited documentary evidence indicating that 98% of Polish Roma speak the Romani language and that most do so fluently. Mr. Posluszny said that he never learned the language because his Roma friends and family always spoke to him in Polish. The Board found his explanation weak.
[7] In my view, it was open to the Board to be sceptical of Mr. Posluszny's explanation. It was he who said that he was raised in the Romani tradition and was surrounded by Roma people with whom he associated closely his entire life.
(ii) Customs
[8] Mr. Posluszny testified about his knowledge of Roma customs. He was able to give only two or three examples. Again, it was open to the Board to find Mr. Posluszny's evidence unconvincing given his testimony about his life-long immersion in Roma culture.
[9] The Board was also entitled to rely on its specialized knowledge to conclude that one example Mr. Posluszny cited was not genuine (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 170 (i); see Annex). Mr. Posluszny explained that when a Roma child is born, the husband cannot see his wife for three months (in the case of girls) or six weeks (in the case of boys). The Board had never heard of this distinction between male and female infants.
[10] Mr. Posluszny argued that the Board could not rely on its specialized knowledge without giving him notice and an opportunity to address the Board's concerns. Having reviewed the transcript, I am satisfied that the Board gave Mr. Posluszny ample opportunity to explain this custom. He was merely able to say that he thought boys were more respected than girls in the Roma culture. The Board was entitled to conclude that this broad characterization was an inadequate explanation.
(iii) Photograph
[11] Mr. Posluszny presented an old photograph of an 8 or 9 year-old boy with some Roma-looking people. He said that he was the boy in the photo. The Board was unable to identify Mr. Posluszny from this photo. It concluded that the photo should be given no weight as it did not help establish Mr. Posluszny's claim.
[12] Obviously, the Board must decide what weight a particular piece of evidence deserves. I cannot conclude that it was unreasonable for the Board to discount the significance of a photograph from which it could not identify Mr. Posluszny. In any case, even at best, the value of this evidence to the proof of Mr. Posluszny's claim of persecution was slight.
(iv) Description of Attack
[13] Mr. Posluszny claimed that he had been assaulted. In his Personal Information Form, he said that his assailants told him that half-caste people should be thrown out of the country and not given jobs. At the hearing, the Board asked how his attackers would have known that he was half-Roma. He said that they simply called him a Gypsy. In my view, the Board was entitled to rely on this contradiction to conclude that Mr. Posluszny's account of this event was not credible.
(v) Police Reports
[14] Mr. Posluszny told the Board that he had reported the attack to the police but they did not prepare a report. The Board once again relied on its specialized knowledge to point out to Mr. Posluszny that the Polish police usually make a report of these kinds of incidents but they do not always take them seriously. Mr. Posluszny then agreed that the police had written something down, but they did not follow up.
[15] This contradiction is very minor; it could not possibly justify an adverse credibility finding on its own. Nor, however, could any error on the Board's part support an argument that its decision was patently unreasonable. Either way, the issue is of little significance.
(vi) Supporting declarations
[16] Mr. Posluszny presented to the Board a series of written declarations from persons who supported his claim. The Board noted that the statements contained some common phrases which resembled Mr. Posluszny's own testimony. It was obviously concerned that these similarities indicated connivance. It again cited its specialized knowledge about the ease of obtaining fraudulent documents.
[17] To repeat, the Board decides what weight to give the evidence before it. I cannot fault its conclusion that these declarations were unpersuasive.
(vii) Employer's Declaration
[18] Mr. Posluszny provided the Board with a statement from his former employer who said that Mr. Posluszny had been assaulted in July 2000 by unknown persons. In his Personal Information Form, Mr. Posluszny said that the employer had been harassed and threatened for having employed him and had to let him go. The Board wondered why there was no mention of any of this in the employer's declaration. Because of this omission, the Board gave the statement no weight.
[19] Again, I must defer to the Board's assessment of the weight of this evidence.
(viii) Wife's Note
[20] Mr. Posluszny showed the Board a hand-written note which he says his wife received after he left Poland. The note contained a death threat. The Board wondered why Mr. Posluszny's family was still living in the same apartment if they continued to receive these kinds of threats. Mr. Posluszny explained that changing apartments would do no good because new neighbours would treat them the same way. The Board did not find Mr. Posluszny's explanation convincing. It concluded that there had been no threats.
[21] In effect, the Board found that it was implausible that Mr. Posluszny's wife and children would not move if there was a serious threat on their lives. With respect to findings of implausibility, the Court is often just as capable as the Board at evaluating the evidence and can intervene more readily than it might with respect to other kinds of fact-finding. (Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 875 (T.D.) (QL); Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (T.D.) (QL).) Here, however, I cannot find a basis for disputing the Board's conclusion. Mr. Posluszny argues that the documentary evidence shows that violence against Roma people is prevalent throughout Poland and, therefore, that there would be no point in moving. However, the Board's view was that conditions in Poland did not justify the family's decision to ignore specific threats of serious physical harm. I cannot fault the Board's reasoning.
(ix) Delay
[22] Mr. Posluszny arrived in Canada in November 2000 and did not make his refugee claim until April 2001. He told the Board that he did not know how to make a claim and did not realize that it was important to apply promptly. The Board found that the delay was inconsistent with a genuine subjective fear of persecution.
[23] Delay in making a refugee claim is relevant to the question whether the person actually fears persecution. The Board was entitled to take account of Mr. Posluszny's delay when assessing the merits of his claim to require immediate protection.
(x) Departure Date
[24] Mr. Posluszny said that he decided to come to Canada after his apartment was vandalized in September 2000. The Board doubted this. It noted that Mr. Posluszny had applied for a visa the previous spring and received it in July 2000. He had also applied for a visa to the United States in August 2000. The Board concluded that Mr. Posluszny had already decided to come to Canada before the alleged event at his apartment. In other words, his arrival in Canada was not the direct result of any mistreatment.
[25] In my view, it was open to the Board to find that the circumstances surrounding Mr. Posluszny's travel to Canada cast doubt on the genuineness of his claim to need protection.
III. Disposition
[26] I have found no basis on which to conclude that the Board's findings were patently unreasonable and must, therefore, dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed.
2. No question of general importance is stated.
"James W. O'Reilly"
F.C.J.
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
Proceedings
170. The Refugee Protection Division, in any proceeding before it,
...
(i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.
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Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
Fonctionnement
170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés_:
[...]
i) peut admettre d'office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3079-03
STYLE OF CAUSE: BOLESLAW EDWARD POSLUSZNY V. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: May 25, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: August 9, 2004
APPEARANCES BY:
Mr. Byron E. Pfeiffer FOR THE APPLICANT
Ms. Sonia Barrette FOR THE RESPONDENT
SOLICITORS OF RECORD:
BYRON E. PFEIFFER
Barrister and Solicitor
Ottawa,Ontario FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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