Date:
19971125
Docket:
IMM-243-97
BETWEEN:
VLADISLAV
AGRANOVSKI,
Applicant,
-
and -
MINISTER
OF CITIZENSHIP
AND
IMMIGRATION,
Respondent.
REASONS
FOR ORDER
PINARD J.:
[1] The application for judicial review concerns a decision rendered on December 12, 1996 by the
Convention Refugee Determination Division, which found that the applicant is
not a Convention refugee as defined in subsection 2(1) of the Immigration
Act.
[2] The applicant’s refugee claim was initially denied by the Refugee Division on September 12, 1995.
Further to an application for judicial review of that decision, this Court
referred the matter back to the same panel for rehearing, as requested by the
applicant, essentially because the panel had failed to provide sufficient
reasons for its decision to prefer the documentary evidence filed by the
refugee hearing officer to the applicant’s testimony. At the second hearing
before the same panel, counsel for the applicant agreed that the transcript of
the first hearing would be filed in evidence, which explains the shortness of
the second hearing, although the applicant and his mother did testify briefly
at that hearing.
[3] As can be seen from the decision to which this application for judicial review relates, the Refugee
Division concluded as follows after summarizing the facts:
[translation] After analysing both the
documentary and the testimonial evidence, the panel has reached the conclusion
that the claimant is not a “Convention refugee” for the following reasons:
Some major
implausibilities in the claimant’s story lead us to believe that he made all of
it up.
1. The panel finds it
implausible that the claimant was dismissed in April 1992 because his employer
had just realized he was Russian [goy]. It is not plausible that the employer
did not realize this until nine months after hiring the claimant, when some
people allegedly beat up the claimant on the street after recognizing from his
accent that he was Russian. When asked about this, the claimant did not
provide a satisfactory explanation. We therefore do not believe that he was
dismissed because he was Russian.
2. The panel finds it
implausible that the claimant does not have clearer knowledge of whether he
belonged to a union, given that he also said he complained to the Histadrut
union after being dismissed. These contradictory statements do not stand up to
analysis.
3. The panel also
finds it implausible that the soldiers gave him permission to leave the country
to rest in Cyprus in September or October 1993 even though they had allegedly
taken the trouble to imprison him for three days in August 1993 because he had
not come when previously summoned. When asked about this, the claimant did not
provide a satisfactory explanation. Nor did his mother’s testimony shed any
credible light on this. Her testimony was motivated by self‑interest,
and it cannot be sufficient given the claimant’s total lack of credibility.
For these
reasons, the panel concludes that the claimant is not credible as far as his
story as a whole is concerned.
[4] There is
no merit in the applicant’s main argument that there was a denial of natural
justice in his case because the issue of his credibility was not expressly
raised again at the second hearing. In my view, the Refugee Division could
legitimately consider the transcript of the first hearing to assess the issue
of credibility, since that transcript had been filed in evidence before it with
the applicant’s express consent and since a reading of the transcript shows
that the panel did ask the applicant about each implausibility noted in its
second decision. Moreover, counsel for the applicant was perfectly at liberty
to question the applicant about those implausibilities at the second hearing.
Finally, the applicant cannot claim to be surprised by the reasons the Refugee
Division gave for its second decision, since what justified this Court in
referring the matter back to the same panel was precisely the insufficiency of
its reasons concerning his credibility in its first decision.
[5] Moreover,
the applicant has not persuaded me that the panel could not reasonably conclude
as it did, since its perception that he was not credible effectively amounted
to a finding that there was no credible evidence that could justify the refugee
claim in question. In this regard, it suffices to recall what
MacGuigan J.A. stated in Sheikh v. Canada, [1990] 3 F.C. 238, at
page 244:
The concept of
“credible evidence” is not , of course, the same as that of the credibility of
the applicant, but it is obvious that where the only evidence before a tribunal
linking the applicant to his claim is that of the applicant himself (in
addition, perhaps, to “country reports” from which nothing about the
applicant’s claim can be directly deduced), a tribunal’s perception that he is
not a credible witness effectively amounts to a finding that there is no
credible evidence on which the second‑level tribunal could allow his
claim.
[6] For
these reasons, this application must be dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
November 25, 1997
Certified true translation
Christiane Delon
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES OF
COUNSEL AND SOLICITORS OF RECORD
COURT
NO.: IMM-243-97
STYLE
OF CAUSE: Vladislav Agranovski v. MCI
PLACE
OF HEARING:Montréal, Quebec
DATE
OF HEARING:November 13, 1997
REASONS
FOR ORDER BY:PINARD J.
DATED:NOVEMBER
13, 1997
APPEARANCES:
Michelle Langelier FOR
THE APPLICANT
Caroline Doyon FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR
THE APPLICANT
Montréal, Quebec
George Thomson FOR
THE RESPONDENT
Deputy Attorney General of Canada
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