Jasiel v. Canada (Minister of Citizenship and Immigration), 2005 FC 1234

Date : 20050913

Docket : IMM-564-05

Citation : 2005 FC 1234

OTTAWA, Ontario, this 13^th day of September,2005

PRESENT: The Honourable Mr. Justice Teitelbaum

BETWEEN :

                                                       TADEUSZ JASIEL

                                                                                                                              Applicant

AND :

                       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                         Respondent

                                     REASONS FOR ORDER AND ORDER

TEITELBAUM, J.

[1]                This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review, pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the Immigration and Refugee Board, Refugee Protection Division ("the Board"), dated December 23, 2004, wherein the Board determined that Tadeusz Jasiel ("the Applicant") is not a Convention refugee nor a person in need of protection.

[2]                The Applicant is a 50-year old citizen of Poland. He arrived in Canada on June 20, 2004 from the United States, where he had been living illegally since October 1996, following the expiry of a travel visa. The Applicant states that he is a severe alcoholic who will relapse should he return to the friends in Poland who encourage him to drink. He fears he will be committed to a psychiatric hospital there as a result of his condition.

[3]                He applied for refugee protection on the basis that he wants to stay in Canada, where much of his family lives and where he has been recovering, rather than be subject to the kind of treatment alcoholics receive in Poland. He requested that humanitarian and compassionate considerations be taken into account at his refugee claim hearing.

[4]                The Applicant, who worked as a dishwasher in the United States, says that he is a farmer by profession, but cannot make a living in Poland due to economic conditions and farmer strikes there. He has also expressed fears that he will be considered a "public enemy" upon return because of his vocal opposition to Poland joining the European Union (although he does not appear to be involved in any political activity in support of this opinion).

[5]                The Board found that the Applicant was not a Convention refugee or a person in need of protection for the following reasons:

- the Applicant was not credible owing to multiple contradictions, inconsistencies and "confusing and evasive statements" in his testimony

- the Applicant's statements in the Port of Entry (POE) Notes concerning when he left Poland, when he went to the USA and whether or not he had visited Canada before do not accord with his statements in the Personal Information Form (PIF)

- the Applicant stated he had lost his passport but could not say why, and "did not know" whether he had obtained another one

- the Applicant originally claimed to have been born in Canada in his POE Notes

- the documents submitted were not enough to fully establish the Applicant's identity

- the Applicant stated that he had never committed any crimes, yet admitted to having been stopped by authorities for driving under the influence in both Poland and the USA and having his license taken away

- the Applicant stated he had never had any psychiatric problems, yet insisted he would be committed for alcoholism upon return to Poland; he was unable to explain why he had not been committed in Poland before if his alcoholism had been such a problem

- the Applicant had stated he had no fears of return to Poland in his Background Information Form

- the Applicant did not present any evidence to support his statements that he might be considered an enemy of the government

- the Applicant's main motivation appeared to be reunification with his family in Canada, with some benefits for his health

- the Applicant had an Internal Flight Alternative (IFA) in Poland, since he could return to a place where he had no alcoholic friends, such as Warsaw

[6]                The Board found that there was no nexus between the Applicant's situation and the Convention refugee grounds, and that he was not at risk of torture, persecution or cruel or unusual punishment. It also found that the Applicant did not present any evidence under s. 97(1)(b)(iv) of IRPA to show that the state of Poland was incapable of providing him with adequate medical care.

[7]                The Applicant makes two submissions:

1) There is ample documentary evidence to support the Applicant's argument that alcoholics end up committed to psychiatric institutions in Poland. This submission is based on new documentary evidence filed only before the Court, that was not before the Board. The Applicant also argues that the Board should have sought out evidence on these conditions itself.

The Applicant argues that the Board stated during the hearing that the testimony of the Applicant's sister concerning the Applicant's alcoholism "may" not be necessary. The Applicant submits that a reasonable person would have assumed this meant the Board had found the Applicant's testimony on this point to be convincing, when it was actually later found to be defective. The Applicant argues that the Board "induced the applicant's counsel to believe" that the testimony was not necessary, and therefore prevented the Applicant from meeting his burden.

The Applicant argues that the failure to make a clear finding of credibility in relation to the witnesses before it constitutes a failure of natural justice, and breaches "procedural equity."

2) There was ample evidence before the Board to establish the Applicant's identity. The Board accepted the identity of his brothers and sisters resident in Canada, and had an untranslated birth certificate and a duplicate of a driver's license belonging to the Applicant.

[8]                The Respondent makes five submissions:

1) The new evidence submitted to the Court that was not before the Board should be expunged, since the Applicant is not allowed to submit new evidence or raise new issues in Court that were not before the Board. (Gitxsan Treaty Society and Hospital Employees Union, [2000] 1 FC 135 (FCA), Basha v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 207, Asafov v. Canada (Minister of Employment and Immigration), [1994] FCJ No. 713 (TD), Majinski v. Canada (Minister of Citizenship and Immigration), 2003 FCT 628, Azhar v. Canada (Minister of Citizenship and Immigration), 2004 FC 1223, Lemiecha et al. v. Canada (Minister of Employment and Immigration), (1993) 72 FTR 49, Owusu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1505, Koulamallah v. Canada (Minister of Citizenship and Immigration), 2003 FC 1043)

2) The burden of proving the nature of alcoholism treatment in Poland is on the claimant, not on the Board, and the Board has no obligation to point out evidence it finds unconvincing as it goes along in the hearing. (Danquah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1704, Innocent v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1058, Parameshvaran v.Canada ( Minister of Citizenship and Immigration),[1995] F.C.J. No. 996, Appau v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 300, Belhadj v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 276, Kutuk v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1754, Tchaynikova et al. v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 583)

[9]                The Respondent also points out that the new evidence before the Court could be filed in a humanitarian and compassionate (H & C) claim before the Board instead.

3) The Applicant's counsel must show both that the Board's comments concerning the sister's potential testimony constituted a breach of natural justice and that Applicant's counsel filed an objection at the time. (Yasine v. Minister of Citizenship and Immigration, (1995), 27 Imm. L.R. (2d) 135 (FCA), Quaye v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1198, Odatey v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1568.) The Applicant's counsel not only did not file an objection at the time, but stated at the end of hearing that he did not think it necessary to call the witness, according to Exhibit E, the affidavit of Michèle Joubert. The Applicant has also not made out a case for a breach of natural justice. (Moutisheva v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 988, Szczecka v. Canada (Minister of Employment and Immigration),[1993] F.C.J. No. 934, Dragomirov v.Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 337, Wardle v. Manitoba Farm Loans Association, [1955] 5 D.L.R. 673, Canada Safeway v. Canada (Minister of National Revenue), (1957) 11 D.L.R. (2d) 1.) The Respondent further submits that it is too late to raise this issue now anyway. (Mbokoso v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1806)

4) The Respondent submits that the Board's findings on identity are based on the fact that the Applicant did not attempt to file full and proper identity documents, i.e. a passport, and that his evidence, while showing the link with his family, does not establish his whereabouts before the date he claimed refugee status in Canada or his nationality. The Respondent submits this is a proper approach to s. 106 of IRPA. (Yip v. Canada (Minister of Employment and Immigration), (1993) 70 FTR 175, Keita v. Canada (Minister of Citizenship and Immigration), 2001 FCT 187, Farooqi v. Canada (Minister of Citizenship and Immigration), 2004 FC 1396 and others cited on p. 15 of the Respondent's submissions). The Respondent also submits that where evidence of "identity and whereabouts" is not satisfactory, the Board may draw negative conclusions about credibility, especially in the absence of travel documents. (Elazi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 212) The Respondent adds that some of the identity documents provided by the Applicant are so old as to be out-of-date.

5) The Applicant's arguments in support of his own credibility rely on the new and inadmissible evidence before the Court. The Board did not err in its credibility findings, and it found no nexus to a Convention ground or conformity with s. 97.

[10]            It would appear that the Applicant's case is actually more akin to a request for an exemption from filing for permanent residence overseas on humanitarian and compassionate grounds.

[11]            While there may indeed be ample documentary evidence to support less advanced treatments for alcoholism in Poland, neither this evidence nor the medical evidence supporting the Applicant's condition was put before the Board at the time of the hearing, and therefore the Applicant did not meet his burden. It is the Applicant's responsibility to put forward the testimony of the Applicant's sister if he thought there was any possibility at all that it might benefit the Applicant. It is not the Board's responsibility to make the decision to have a witness heard.

[12]            No motion to place evidence before the Court that is extrinsic to the Tribunal Record appears to have been filed. While it may to be possible to allow new evidence where it would establish a persecution claim (Omar v. Canada (Minister of Citizenship and Immigration), 2004 FC 1740), in this case it would not. The Applicant has an IFA in Poland, and his claim does not bear any relation to the nexus grounds. He also lived in the United States for almost ten years prior to claiming in Canada, and did not claim there even though he could obtain alcoholism treatment in the U.S. without being committed as well.

[13]            However, the Board has made one legal error. It refers to s. 97(1)(b)(iv) as if this section would allow the Applicant to claim protection if he could prove that Poland could not provide adequate medical care. This section actually states the opposite - inadequate health or medical care in the home country cannot qualify a person for protection, even if it is fully proven. Section 97(1)(b)(iv) is as follows:

[14]            The Applicant appears to have made submissions to the Court on the inadequacy of health care for alcoholics in Poland, in reliance on this error of the Board. Since the Applicant did not initially provide the evidence about health care before the Board, he could not have succeeded under the Board's mistaken version of s. 97, and even if his new evidence were to be accepted by the Court, the accurate version of s. 97 does not permit his admission to Canada anyway. The Board's error concerning s. 97 is therefore not material to the decision.

[15]            The Respondent's argument that "identity" under s. 106 includes establishing a claimant's "whereabouts" is doubtful, and to the extent the Board conflated these two elements, it would be in error. However, it appears from the decision that the Board's concerns were based more on the type of identity evidence submitted and its insufficiency, and the absence of evidence to support the Applicant's claimed history, than on a direct rejection of the Applicant's identity under s. 106. Since the Applicant's claim did not contain a basis for finding him to be a Convention refugee or a person in need of protection in any case, any error the Board may have made in this regard would also be immaterial.

[16]            The Board's decision is upheld.

[17]            At the conclusion of the hearing, the Court asked if either party had a question to submit for certification.

[18]            Counsel for the applicant said he wanted to submit such a question but did not have it with him. Counsel for the Respondent said she had no such question.

[19]            Although I said counsel for the applicant should have had his question for certification at the end of the hearing, I am prepared to allow the Applicant seven days from today's date to submit his question. The Respondent should then have seven days to file submissions on why the question should or should not be permitted.

                                                                 ORDER

The application for judicial review is dismissed.

« Max M. Teitelbaum »

       JUDGE

OTTAWA, Ontario

September 13, 2005

                                           FEDERAL COURT OF CANADA

                                                SOLICITORS OF RECORD

DOCKETS :                                IMM-564-05

STYLE OF CAUSE :                   Tadeusz Jasiel v. The Minister of Citizenship and Immigration

PLACE OF HEARING:              Montréal, Québec

DATE OF HEARING:                September 7, 2005

REASONS :                                 The Honourable Mr. Justice Teitelbaum

DATE OF REASONS:                September 13, 2005

APPEARANCES :                      

Mr. Frank Laveux                          FOR THE APPLICANT

Mrs. Gretchen Timmins                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Idorenyin E. Amana

Montreal, Quebec                          FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General

of Canada

Ottawa, Ontario                             FOR THE RESPONDENT