Date: 20021105
Docket: IMM-5832-01
Neutral citation: 2002 FCT 1141
Ottawa, Ontario, this 5th day of November, 2002
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
KRASIMIR ALEXANDROV NESHEV
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, for judicial review of the decision of the Convention and Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated November 17, 2001, wherein the applicant was determined not to be a Convention Refugee.
FACTUAL BACKGROUND
[2] The applicant, Mr. Krasimir Alexandrov Neshev (a.k.a. Krasimir Aleksa Neshev) is a thirty-three year old citizen of Bulgaria. He claims to be a refugee based on his Macedonian ethnic identity and his fear of the Bulgarian authorities.
[3] The applicant alleges that he was a member of the Plodiv chapter of a Macedonian organization known as OMO Illiden. The applicant's first encounter with the Bulgarian police occurred at a family celebration in 1997, where he was questioned about his activities with.
[4] On April 29, 2000, the applicant attended an OMO Illiden meeting which was raided by the Bulgarian police. The applicant, amongst others, was taken to the police station in Plodiv, detained overnight and the next morning, he was interrogated and beaten. He was then transferred to the police station in his home town of Pazardjik for another night.
[5] The applicant left Bulgaria on June 14, 2000 after being advised by his uncle and father that because the police had initiated an investigation against him, they would never leave him alone.
THE CRDD DECISION
[6] The CRDD accepted that the applicant is Macedonian. However, it assessed the applicant's credibility with regards to his story and found, inter alia, that it was implausible that the claimant did not make enquiries about the OMO Illiden before joining, and that there were impossibilities and omissions in the applicant's evidence.
[7] The CRDD did not make an explicit finding of negative credibility.
[8] The CRDD assessed the objective basis of the applicant's fear of persecution and determined that there was no more than a mere possibility that the applicant would be subjected to persecution should he return to Bulgaria.
ISSUES
[9] 1. Did the CRDD err in failing to provide reasons for its findings on credibility?
2. Did the CRDD err in its finding that the applicant did not establish an objective basis for his fear of persecution?
SUBMISSIONS AND ANALYSIS
[10] The applicant submitted that the CRDD did not identify and did not provide reasons for its findings of implausibility, impossibilities and omissions.
[11] It is trite law that the CRDD is required to provide reasons for negative credibility findings in clear and unmistakable terms [Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (C.A.)]. This duty becomes particularly important when non-credibility findings are based on perceived "implausibilities" in the applicant's story [Leung v. Canada (M.E.I.) (1994), 81 F.T.R. 303 (T.D.)].
[12] Jerome, A.C.J., in Leung, supra, explained at paragraph 15 that "findings of implausibility are subjective assessments which are largely dependant [sic] on the individual Board member's perception of what constitutes rational behaviour". I am of the view that in the case at bar, the CRDD did not base its decision on a question of credibility, but rather on the objective basis for the claim. Because the issue of credibility was not determinative of the decision reached, the Court cannot intervene on this point.
[13] Furthermore, the Board should have been more careful in writing its decision, particularly in relation to the facts. There were a number of minor factual errors, but, again, they were not determinative of the CRDD's final conclusion. Thus, to intervene on the issue would be inappropriate.
[14] This brings me to determine whether the Board erred in its finding that the applicant does not have an objective basis for his claim. Unlike the clouded credibility finding and the minor factual errors, this conclusion was well reasoned and based on the applicant's testimony and facts, as well as on the documentary evidence.
[15] The oral and documentary evidence support the conclusion that the applicant had a very modest involvement in OMO Illiden.
[16] The applicant failed to establish that there was evidence of persecution or harm resulting to members of the organization. On the contrary, the documentary evidence indicates a trend to a more lenient attitude toward peaceful assemblies, even though the OMO Illiden is said to be illegal in Bulgaria.
[17] Moreover, as argued by the respondent, the facts established by the applicant do not support a finding of discrimination amounting to persecution.
[18] Finally, the CRDD did not ignore the documentary evidence relating to the discrimination against Macedonians, quite the opposite, it actually noted evidence of existing, although declining discrimination against Macedonians in Bulgaria. The CRDD is not obligated to refer to all of the evidence and is entitled to prefer certain documentary evidence over other evidence [Tawfik v. Canada (M.E.I.) (1993), 26 Imm. L.R. (2d) 148 (T.D.), Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.)].
[19] Since the CRDD decision was primarily based on its finding that the applicant did not have an objective basis for his claim, and not on an ambiguous credibility finding, and considering that I deem this determination quite reasonable in light of the facts and the evidence, I find that there is no patently unreasonable error which would allow a reconsideration.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review be dismissed.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5832-01
STYLE OF CAUSE : KRASIMIR ALEXANDROV NESHEV and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : October 31, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
DATED : November 5, 2002
APPEARANCES :
Ms. Helen Turner FOR THE APPLICANT
Ms. MacPhee FOR THE RESPONDENT
SOLICITORS OF RECORD :
Helen Turner FOR THE APPLICANT
Toronto, Ontario
Ms. MacPhee FOR THE RESPONDENT
Department of Justice
Toronto, Ontario
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