Date: 20030609
Docket: IMM-3266-02
Citation: 2003 FCT 717
OTTAWA, ONTARIO, MONDAY, THIS 9TH DAY OF JUNE, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
NATALYA (NATALIA) DYDYUK
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Natalya Dydyuk (the "Applicant"), a citizen of Ukraine, arrived in Canada on September 25, 1995 on a visitor visa under the pretext of attending a religious college. She never attended that school. In 1999, almost four years later, she claimed Convention refugee status on the basis of a well-founded fear of persecution in Ukraine based on her Pentecostal religion. By decision dated May 1, 2002, the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") determined that the Applicant was not a Convention refugee. The Applicant seeks judicial review of that decision.
Preliminary Issue
The Applicant, who has been self-represented in this application, was not present in Court to present her application. By letter dated June 3, 2003, Ms. Elena Levy, purporting to be counsel for the Applicant, sent a letter to the Court seeking a "short adjournment for the nearest available date". Ms. Levy has taken no steps to advise the Court that she is the solicitor of record in this matter. Her "reasons" were stated as follows:
Unfortunately, I was not able to attend today's hearing, due to a family emergency situation with my mother and I am presently overseas (St. Petersburg, Russia). Few days ago a teleconference was held with Department of Justice lawyer and he indicated that he is unwilling to consent to adjournment. We were trying to find another counsel to represent the client, however, could not find anyone for this date. I will return around 10th of June.
After considering this request, which was presented to me by a friend of the Applicant, I advised the parties that the reasons were not sufficient to grant an adjournment and denied the request.
On February 17, 1993, the Trial Division issued a Practice Direction advising parties that scheduled trials and hearings would only be adjourned in exceptional cases. This direction, found at page 530 of D. Sgayais et al, Federal Court Practice 1998 (Toronto: Carswell, 1997), provides as follows:
The Federal Court does not overbook its trial sittings. Adjournments therefore cause serious inconvenience and expense.
When the Court has fixed a date for trial or for a hearing, all counsel will be expected to proceed on the date fixed. Requests to adjourn must be made to the Associate Chief Justice, and unless made promptly after the fixing of a hearing date, will be considered only in the most exceptional of circumstances.
The reasons put forth by Ms. Levy, when considered together with the failure of the Applicant to appear at the scheduled hearing or to advise the Court earlier, do not seem to be the "exceptional circumstances" referred to in the Practice Direction, supra.
I further determined that, in the particular circumstances, I would make my decision based on the written material before me, which included:
. the Applicant's Record filed August 1, 2002
. the Respondent's Memorandum of Argument filed August 29, 2002
. the Respondent's Book of Authorities filed May 29, 2003
Issues
While the Applicant raises numerous concerns with the Board's decision, all of these issues can be succinctly stated as follows:
1. Was the Board's decision patently unreasonable?
Analysis
For the reasons that follow, I am of the view that this application should not succeed.
A number of the Applicant's submissions do not seem to apply to the present case. Contrary to the submissions of the Applicant, she did not testify about "incidents of systematic threats, harassment from authoritie [sic] and citizenzs [sic]" or that she feared persecution at the hands of government agents because of "his complains [sic] against corruption"; the reasons for refusal do not appear to "concentrate on only secondary formalities of the claim completely ignoring the whole totality of evidence about persecution and underlying causes for such persecution"; and the Board did not make a finding that the "state did not knowingly tolerate or support the persecution".
After these irrelevant submissions are set aside, what remains of the Applicant's submissions is essentially an argument that questions the factual and credibility findings of the Board. The appropriate standard of review of these findings is one of patent unreasonableness, which means that those findings must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 at para. 4 (C.A.) (QL); Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.) (QL)).
The Applicant submits that the Board ignored evidence in making its assessment of the situation in Ukraine, but fails to identify precisely what evidence the Board ignored. In her Affidavit, the Applicant argues that the Board ignored the documents related to her change of religion in 1992 and to the discrimination she experienced as a result of that change. There are no such documents in either the Certified Tribunal Record or the Applicant's Record. At the hearing before the Board, the Applicant testified that she did not bring any letters from her Pastor or other church members in Ukraine because she did not think that it was necessary. In her Affidavit, the Applicant also refers to her testimony regarding the inability to practice the religion of one's choice in Ukraine. The Applicant also questions the accuracy of the U.S. Department of State's Annual Report on International Religious Freedom 2000 (the "Annual Report"), located at pages 45 to 54 of the Certified Tribunal Record and cited by the Board in its decision.
A review of the documentary evidence does not support the submissions of the Applicant. Rather, the documentary evidence clearly supports the Board's conclusion that the Applicant did not face a well-founded fear of persecution in Ukraine based on her Pentecostal religion. In addition, this case can be distinguished from Okyere-Akosah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 411 (C.A.) (QL), where the Board did not cast any doubts on the applicant's credibility and consequently had an obligation to explain in clear and unmistakable terms why it preferred the documentary evidence to the credible testimony of the applicant. The Board in the present case was entitled to prefer the documentary evidence to the testimony of the Applicant based on its finding that the Applicant's testimony was "problematic".
Moreover, the Applicant did not adduce any evidence to contradict the Annual Report or other documentary evidence before the Board. The little evidence that the Applicant submitted (for example, a letter from Daniel Kalinovsky, Pastor of the All Slavic Full Gospel Church, dated April 2, 2002, confirming that she is a member of that church and an Epicrisis and Medical Record of her brother, Oleksandr Didyukh) did not refute the documentary evidence or support her subjective claim.
In my view, the Applicant's testimony at the hearing also does not support her claim that she had a well-founded fear of persecution in Ukraine on religious grounds. While her testimony supports the conclusion that she faced some discrimination as a result of her religious beliefs, it was open to the Board to conclude that this treatment did not amount to persecution.
Furthermore, there were some significant omissions from the Applicant's Personal Information Form ("PIF"), particularly the conversion of her brother from the Orthodox Church to the Pentecostal Church and the physical attacks on the Applicant herself. In my view, the Board was entitled to draw a negative inference from the omission of this evidence, particularly the physical attacks, from the Applicant's PIF (Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (T.D.) (QL); Sahi v. Canada (Minister of Citizenship and Immigration), 2001 FCT 527, [2001] F.C.J. No. 805 (QL)).
Finally, the significant delay in seeking asylum also supports the conclusion of the Board. The Board found that the delay of more than three years in making a Convention refugee claim brought the Applicant's subjective fear of persecution into serious question. The Board was not satisfied with the Applicant's explanations for her failure to make a claim earlier and found her actions in this regard to be inconsistent with the actions of someone who truly feared persecution in her country of origin. In my view, the Board was entitled to consider the Applicant's delay in claiming Convention refugee status in assessing whether she met the definition of Convention refugee.
Therefore, a review of the material contained in the Certified Tribunal Record, including the documentary evidence that was before the Board and the Applicant's own testimony, indicates that the Board's conclusion that the Applicant was not a Convention refugee was open to it on that evidence. In reaching this conclusion, the Board did not act perversely or capriciously or ignore any of the evidence before it. As a result, there is no basis for this Court to intervene in the Board's decision.
ORDER
THIS COURT ORDERS THAT:
1. This application for judicial review is dismissed
2. The parties shall have 10 days from the date of this order to submit proposed questions for certification and 5 days thereafter for reply.
"Judith A. Snider"
____________________________
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3266-02
STYLE OF CAUSE: NATALYA (NATALIA) DYDYUK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JUNE 4, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MADAM JUSTICE SNIDER
DATED: MONDAY, JUNE 9, 2003
APPEARANCES BY: Mr. Yuri Gavris
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Ms. Elena Levy
Barrister & Solicitor
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030609
Docket: IMM-3266-02
BETWEEN:
NATALYA (NATALIA) DYDYUK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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