Date:
20050726
Docket:
IMM-8627-04
Citation:
2005 FC 1025
BETWEEN:
ANATOLY
AIDARUK SKODTAEV
Applicant
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR ORDER
BLANCHARD
J.
INTRODUCTION
[1]
The applicant Anatoly Aidaruk Skodtaev seeks judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), rendered by member Diane Fecteau on September 2, 2004,
dismissing his refugee claim.
[2]
As a remedy, the applicant is asking this Court to quash the decision,
to order a re-hearing before another panel and, in the meantime, to stay any
removal order.
FACTUAL
BACKGROUND
[3]
The applicant, a Russian citizen of the Orthodox Christian religion, is
married and the father of two children. He lived in Vladikavkaz, the capital of
Northern Ossetia, a republic that is part of the Russian Federation. From 1983
to 2002, he worked as a physician. In 2002 he was dismissed, and he alleged
this was on account of his mixed nationality.
[4]
The applicant maintained he had been the victim of discrimination and
persecution by Ingush and Ossetian nationalists. He said he was humiliated,
beaten and harrassed by Ossetians and suffered reprisals from Ingush, who beat
him and his family, and who threw an incendiary bomb and hurled stones through
the window of his apartment. He said he was attacked by Ingush while he was on
an emergency call, tied to a tree and had his ambulance stolen.
[5]
In addition, his involvement in a community organization helping the
disabled also made him a victim of discrimination and mistreatment. When he was
looking after Ingush families who had been mutilated by Ossetian nationalists,
the applicant was attacked by individuals of the same group.
[6]
The applicant further alleged that the church he attended was attacked
by Moslem Ingush and by Ossetian nationalists, who quarrel with the
interpretation given to the New Testament by his Church.
[7]
In March 2003, the applicant, who is a five-time champion international
arm wrestler, took part in an international competition in Poland. Ossetians
threatened the applicant and his family with death if he did not lose the
competition.
[8]
In April 2003, the applicant said he was held for four hours and beaten
by officers of the militia for his opposition to the participation of young
people in the war in Chechnya.
[9]
In November 2003, he said Ingush carried out a “pogrom” in the
applicant's apartment because he had taken part in another competition as a
judge during which a young Ingush was eliminated.
[10]
Finally, the applicant alleged he became a member of the “United Russia”
party after being forced to do so by the sports committee, whom he
unsuccessfully asked for aid and protection. The applicant said in his opinion
he was used because he was a five-time international champion.
[11]
The Board heard the application on August 20, 2004 and dismissed it in a
decision it rendered on September 2, 2004. Leave to file the application for
judicial review at bar was granted on January 27, 2005.
IMPUGNED
DECISION
[12]
The applicant made a refugee claim pursuant to section 96 and subsection
97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the IRPA). He based his fear of persecution on his nationality and mixed Ingush/Ossetian
ethnic origin, his Orthodox Christian religion, his membership in a particular
social group and his political opinions.
[13]
The evidence offered to the Board consisted, inter alia, of the
applicant's testimony, his Personal Information Form (PIF), his passport, his
degrees, his championship certificates, interview notes with an immigration
officer, Form Appendix 1 - Basic Information, and documents on the
socio-political conditions in the applicant's place of origin.
[14]
As to the question of the applicant's identity, the Board was persuaded
that the applicant had dual Ingush/Ossetian nationality, but felt his testimony
that he was known as such was not credible.
[15]
The Board acknowledged that the documentary evidence showed there was a
very serious problem between the Ingush and Ossetians in Northern Ossetia. The
evidence also was that the situation of the Ingush was very precarious and they
did not have the same rights as the Ossetians.
[16]
The Board noted that the applicant continued living in Vladikavkaz in
Northern Ossetia, at the same address, until November 2003. This led the Board
to doubt that the applicant's Ingush origin had been a major problem.
[17]
In his PIF, the applicant stated that he was sent to give seminars. At
the hearing, the applicant testified that, in 1998, on a radio broadcast, he
had publicly thanked his mother and noted that she was an Ingush. He maintained
that it was publicly recognized that he had dual nationality. On this point,
which the Board considered very important, it examined the argument of counsel
for the applicant, indicating that this addition merely provided clarification
of the information contained in his PIF, though at the outset of the hearing he
had said that document was complete. The Board stated that, in its opinion, it
was an addition the purpose of which was actually to support the allegations of
persecution. The Board noted that this information was not mentioned either in
the PIF or in any other document, or during the applicant's interview with the
immigration officer. The Board found that, in view of the inter-ethnic
conflicts, it was not plausible that the applicant had thus endangered his life
and that of his mother and family.
[18]
The Board found that the remainder of the applicant's testimony was also
not credible. The Board found that the applicant's story had significant
discrepancies for which he had provided no satisfactory explanations:
- the kind of discrimination suffered by
the rest of his family, which was not consistent with his statements at the
interview with the immigration officer and with his statements in his PIF and
in Form Appendix 1 - Basic Information;
- the fact that he did not allege he was in
danger on account of his work and his sports performances until two months
after his arrival in Canada, at the interview with the immigration officer;
- the fact that at one point he maintained
he was the only member of his family to be endangered on account of his
professional status and subsequently alleged that his family was also
threatened;
- the contradictions as to the number of
times and the occasions on which he was beaten by Ingush and Ossetians and held
by the authorities.
[19]
The Board further noted that it attached no evidentiary weight to the
medical certificates submitted by the applicant, since the medical problems
they indicated were not linked to the alleged incidents.
[20]
In short, the Board dismissed the applicant's refugee claim as follows:
In this case, the panel finds that
all the above-mentioned discrepancies, the danger to his family still living in
Russia, the number of times the claimant was beaten and by whom, the period of
detention, and the lack of explanations regarding the alleged acts of
discrimination against his brothers and sisters, are central to the claim and
prove that his story is invented. Consequently, those discrepancies are fatal
to his claim.
ISSUES
[21]
In my view, the following issues are raised by the case at bar:
(1) Did a breach of the rules of natural
justice and procedural fairness occur in the case at bar with respect to the
sending of documents?
(2) Did the Board err in dismissing the refugee
claim as a result of its negative assessment of the applicant's credibility?
ANALYSIS
(1) Did a breach of the rules of natural justice and
procedural fairness occur in the case at bar with respect to the sending of
documents?
[22]
A preliminary point of procedure was raised by the applicant in the case
at bar. He alleged that the Board made an error in interpreting its own rules
of procedure, specifically those relating to the sending of documents.
[23]
The Board noted that, at the hearing, counsel for the applicant informed
it that he had not received the immigration documents. The Board noted that a
letter dated June 29, 2004 indicated that the documents had been sent to him,
that is over 21 days before the date of the hearing. An additional copy was
accordingly given to counsel for the applicant and he was granted an
adjournment so that he could consult the documents. Neither the applicant nor
his counsel objected to the hearing going forward.
[24]
The applicant maintained that the Board misinterpreted its own rules of
procedure. He argued that subsection 29(4) of the Refugee Protection
Division Rules, SOR/2002-228 (the Rules), provides that any document must
be received by the party to whom it is sent no later than 20 days before the
hearing. The applicant noted that it was the time of receipt, not the time of
sending, that was important. Finally, the applicant argued that the Board did
not correctly apply the rules pertaining to the admission of tardy evidence
into account provided for in Rule 30.
[25]
The respondent replied that the Board had adequately interpreted the
rules. He noted that the hearing took place on August 20, 2004, that is over 21
days after the immigration documents were sent on June 29, 2004. I accept the
respondent's argument that 52 days elapsed between the time the documents were
sent by mail and the day of the hearing, which considerably exceeds the
seven-day receipt presumption provided for in subsection 35(2) of the Rules.
Further, the applicant did not object to the hearing going forward. I cannot
conclude that in the case at bar the Board erred in applying its own rules on
these matters. There was no breach of the rules of natural justice and
procedural fairness in this case.
(2) Did the Board err in dismissing the refugee claim as a
result of its negative assessment of the applicant's credibility?
[26]
The Board dismissed the applicant's refugee claim because it did not
find the claim credible. This type of finding must be treated with great
deference by this Court. The Board is in a better position to assess the
evidence, to attach the evidentiary weight to it which it feels is appropriate
on the facts in the record and to determine the credibility of witnesses: Bula
v. Canada (Secretary of State), A‑329‑94, June 19, 1996, [1996]
F.C.J. No. 876 (QL). Therefore, the applicable standard of review is that of
the patently unreasonable decision: Aguebor v. Canada (Minister of
Employment and Immigration), A-1116-91, July 16, 1993, [1993] F.C.J. No.
732 (QL), (1993) 160 N.R. 315; R.K.L. v. Canada (Minister of
Citizenship and Immigration), 2003 FCTD 116; [2003] F.C.J. No. 162 (QL);
(2003) 228 F.T.R. 43, (2003) 26 Imm. L.R. (3d) 292.
[27]
The applicant maintained that the Board erred by finding that his brothers
and sisters were the victims of discrimination, not persecution. The applicant
further objected to the Board's finding that his mixed Ingush/Ossetian origin
was not known. In the applicant's submission, the Board failed to take into
account the fact that he suffered persecution on account of his Ingush origin
since it did not refer to instances of persecution on the part of Ossetians. He
maintained that it was the fact he was targeted by Ingush and Ossetians which
caused him to flee to Canada. He argued that the Board also erred by not
examining his allegation that he was at risk of persecution on account of his
work and his sports performances.
[28]
The respondent replied that the Board correctly relied on the evidence
in the record in arriving at its findings. The Board was not satisfied with the
explanations given by the applicant. As to the applicant's profession and his
sports performances, the respondent noted that he did not mention these at the
interview and did not refer to them until later in the proceeding. In addition,
the Board dismissed the applicant's statement that he disclosed his ethnic
identity over the radio in 1998. These findings of fact are not patently
unreasonable.
[29]
In my opinion, it was reasonable for the Board to question the alleged
“persecution” or “discrimination” suffered by the applicant's family, since he
was of the same origin as the members of his family and lived in the same area.
The applicant himself described the type of problem his family confronted as
“discrimination”. Since the applicant at one point alleged that his family was
in danger and at another stated that his family suffered discrimination, but it
was only he who was really in danger on account of his work and sports
performances, it is not unreasonable for the Board to have questioned his
credibility.
[30]
The applicant further argued that the Board did not deny the
authenticity of the medical certificates submitted by him but did not take them
into account in arriving at its decision. In my opinion, the Board did not
attach any evidentiary weight to them because it could reasonably find that
these documents were not related to the events mentioned in the refugee claim
and did not tend to confirm the incidents in which the applicant was allegedly
involved.
[31]
Finally, the applicant argued that the Board erred in not ruling on all
the grounds advanced in support of his claim, namely his religion, his
membership in a particular social group, his political opinions and the fact
that he was a “person in need of protection” within the meaning of subsection
97(1) of the IRPA.
[32]
The Board's decision was based, inter alia, on fundamental
contradictions between the applicant's testimony at the hearing, his PIF and
the statements contained in Form Appendix 1 - Basic Information, regarding the
number of times and the occasions he was allegedly beaten by the Ingush and
Ossetians as well as by officers of the militia. Further, the applicant did not
mention his problems related to his work and his sports status in the
examination by the immigration officer.
[33]
In my opinion, it appears from the Board's decision that it found the
applicant to be not credible based on his story as a whole. Accordingly, it could
not base its conclusion on another ground. If it found the applicant to be not
credible in his story, this is the reason the applicant's whole refugee claim
was dismissed. The Board further noted that it dismissed the refugee claim both
on account of the grounds pertaining to section 96 and of the grounds
pertaining to subsection 97(1) of the IRPA.
[34]
As noted earlier, the probative value attached to the evidence by the
Board is subject to the standard of the patently unreasonable decision, as are
its findings on credibility. In the case at bar, I cannot find that the Board's
decision is patently unreasonable. It took into account contradictions in the
applicant's evidence regarding important aspects of his refugee claim. Their
cumulative effect supported the Board's decision and I feel there is no basis
for this Court to intervene.
CONCLUSION
[35]
In short, I have been persuaded that the Board did not err in basing its
conclusion on the applicant's lack of credibility. The application for judicial
review is dismissed.
[36]
The applicant requested an extension of time after the filing of these
reasons to propose a serious question for certification. The applicant will be
allowed ten days from the date of these reasons to serve and file his question.
As the respondent has indicated that he will not file any question, he will
have five days from the date of receipt of the applicant's question to file his
reply. After reviewing the submissions, an order will be made dismissing the
application for judicial review and disposing of the question for
certification.
« Edmond P. Blanchard »
Judge
Ottawa, Ontario
July 26, 2005
Certified
true translation
François
Brunet, LLB, BCL
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: IMM-8627-04
STYLE OF CAUSE: ANATOLY
AIDARUK SKODTAEV v. MCI
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: April 27, 2004
REASONS FOR ORDER BY: The
Honourable Mr. Justice Blanchard
DATED: July 26, 2005
APPEARANCES:
Michel Le Brun FOR
THE APPLICANT
Lucie St-Pierre FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR
THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE
RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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