Date: 20041109
Docket: IMM-10358-03
Citation: 2004 FC 1578
Montréal, Quebec, November 9, 2004
Present: Mr. Justice Simon Noël
BETWEEN:
NATALIA ALEXAND STOLIARENKO
MONIKA STOLIARENKO
VADIM STOLIARENKO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division (the panel) of the Immigration and Refugee Board (the IRB), dated December 1, 2003, that the applicants are not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (the IRPA). The applicants are asking that the panel's decision be set aside and returned for rehearing before a differently constituted panel.
[2] Briefly, the female applicant contends that the decision failed to address the principal submission, namely, whether the events experienced by her in Belarus qualified as acts of persecution under the Geneva Convention, and that if she were to return, she would be subject to persecution. The female applicant also contends that, overall, the decision is speculative and contains an excessively microscopic analysis of the evidence.
[3] Although counsel, in their memoranda, have not addressed the applicable standard of review in this case, I note that it is essentially a question of credibility and that in such a situation the accepted standard is the "patently unreasonable" standard (Board of Education for the City of Toronto v. Ontario Secondary School Teachers' Federation, District 15, [1997] 1 S.C.R. 487).
[4] A study of this decision indicates that the question of the applicants' identity and the credibility of the principal applicant's version were at issue.
[5] In regard to identity, section 106 of the IRPA places the onus on the applicant to produce acceptable documentation and, if the applicant is unable to do so, to explain the reasons why.
[6] In this case, the applicant submitted only a birth certificate without a photograph for herself and another document from the register of acts of civil status of Vitebsk in February 2003 showing that there are two persons bearing the name of the two children but no relationship is established.
[7] These are the documents filed to justify identity. The panel stated that it was dissatisfied and concluded that her testimony in this regard demonstrated the principal applicant's lack of interest in obtaining other documents and raised a serious doubt as to her identity and the identity of her children.
[8] Identity is an essential item to be proved if the panel is to be successfully persuaded that an applicant is a refugee and that he is a person in need of protection. The principal applicant did not satisfy the panel in this regard. A reading of her testimony shows some uncertainty and a lack of transparency. The reasons given to demonstrate the impossibility of obtaining some additional documentation are not acceptable. The panel's conclusion on identity is reasonable.
[9] Furthermore, the principal applicant's credibility was solidly challenged by the panel. In concluding as it did, with evidence in support, the panel did not adopt the version of the events presented at least six times:
- failure to mention to the immigration officer the fact that the principal applicant had been held for one night;
- uncertainty as to when her husband's aggressive actions toward her began (July 2001 versus Fall of 2000);
- despite the fear she had concerning her husband, she went alone to his place in July 2001;
- various versions of this visit between her testimony and the personal information form (PIF);
- the death certificate (two documents) of the friend did not have the same number and same date;
- confusion about the place where the principal applicant was living prior to her departure.
[10] No comment was made by the applicants about these findings in their memorandum. There is no reason that would warrant the Court's intervention. These are reasonable findings.
[11] Since the principal applicant's identity and credibility were seriously challenged, there was no need for the panel to comment on the argument that the events experienced were acts of persecution under the Geneva Convention. These events were not credible.
[12] The parties were invited to submit a question for certification but none was submitted.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review is dismissed.
- No question will be certified.
"Simon Noël"
Judge
Certified true translation
Jacques Deschênes, LL.B.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10358-03
STYLE: NATALIA ALEXAND STOLIARENKO
MONIKA STOLIARENKO
VADIM STOLIARENKO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 8, 2004
REASONS FOR ORDER
AND ORDER: MR. JUSTICE SIMON NOËL
DATED: November 9, 2004
APPEARANCES:
Alain Joffe FOR THE APPLICANTS
Gretchen Timmins FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alain Joffe FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
Email this Content