Masimov v. Canada (Minister of Citizenship and Immigration), 2004 FC 859

                                                                                                                               Date : 20040617

                                                                                                                      Docket: IMM-2376-03

                                                                                                                     Citation: 2004 FC 859

BETWEEN:

                                                       ABDUKAYUM MASIMOV

                                                                                                                                     Applicant(s)

                                                                        - and -

                                                THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

                                                                                                                                Respondent(s)

                                                        REASONS FOR ORDER

PINARD J.

[1]         This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the IRB) rendered on February 6, 2003, ruling that the applicant is neither a Convention "refugee" nor a "person in need of protection" under the definitions in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).

[2]         Abdukayum Masimov (the plaintiff) is a citizen of Uzbekistan who alleges that he has a well-founded fear of persecution in that country by reason of his Uigur nationality, his political opinions and the fact that he is related to Emin Usmanov, a writer and former President of the Uigur Cultural Centre.

[3]         The IRB found that the plaintiff was not credible because of the many inconsistencies and implausibilities in his account of events.

[4]         After reviewing the evidence, I am not convinced that we are dealing here with a case where the tribunal based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). On the contrary, the inconsistencies and implausibilities noted seem to me to be fully supported by serious evidence and, in the circumstances, it is not the function of this Court to substitute its decision for that of a specialized tribunal such as the IRB (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.).

[5]         With respect to the allegation of the plaintiff that the IRB should have made a separate analysis of the risk or danger to which he claims he would be exposed in Uzbekistan, it should be noted that the Federal Court of Appeal clearly indicated in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, that the tribunal's perception that an applicant is not a credible witness may well result in a finding that there is no credible evidence on which the claim could be based. In my judgment, the tribunal's analysis relating to the claimant's lack of credibility could in this case cover both section 96 and section 97 of the Act.

[6]         Finally, it should be noted that the IRB was perfectly entitled to accept the fact that since his arrival in Canada, the applicant has left for the United States without claiming refugee status. Such behaviour, combined with the inconsistencies and implausibilities in the applicant's testimony, would allow the tribunal reasonably to draw a negative inference with respect to the subjective fear of alleged persecution.

[7]         For all these reasons, the application for judicial review is dismissed.

       JUDGE

OTTAWA, ONTARIO

June 17, 2004

Certified true translation

Suzanne M. Gauthier, C tr, LLL

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       IMM-2376-03

STYLE OF CAUSE:                                      ABDUKAYUM MASIMOV v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                  Montréal, Quebec

DATE OF HEARING:                                    May 12, 2004

REASONS FOR ORDER:                            The Honourable Mr. Justice Pinard

DATED:                                                          June 17, 2004

APPEARANCES:

Mr. Vonnie Rochester                                                FOR THE APPLICANT

Mr. Michel Pépin                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

Vonnie Rochester                                          FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario