Date: 20040805
Docket: IMM-6602-03
Citation: 2004 FC 1070
Montréal, Quebec, August 5, 2004
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
OKSANA DOBRYANSKA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by the applicant, a 19-year-old young woman and citizen of the Ukraine, to set aside the decision by the Refugee Protection Division (the panel) dated August 1, 2003, refusing to recognize her as a Convention refugee or a person in need of protection.
[2] The panel's decision was based on the fact that the applicant was not credible; it dismissed the allegations of her story because they were not credible. Her counsel acknowledged that the panel has full jurisdiction in matters of credibility and that its findings in this area cannot be set aside unless they are perverse or capricious within the meaning of paragraph 18.1(4)(d) of the Federal Courts Act, a standard of review equivalent to that of patent unreasonableness.
[3] At paragraph 85 of Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, L'Heureux-Dubé J. writes:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[4] The applicant fears persecution if she were to return to the Ukraine because she is a lesbian; a persecution - namely assault or attempted rapes - that she experienced and that prompted her to flee her native country.
[5] The applicant's counsel dissected every element taken into consideration by the panel in finding that the applicant was not credible and submitted to this Court that each element was tainted with one or several patently unreasonable errors.
[6] The panel based its adverse finding on credibility on the following grounds:
(a) the delay in fleeing the Ukraine and the delay in claiming protection in Canada;
(b) the contradiction between her testimony (two attempted rapes by friends of André, in love with her, but whom she rejected because she was a lesbian) and her PIF in which only one was mentioned without any date;
(c) evasive testimony;
(d) failing to write in her PIF that her father, who is a priest, had been called by the bishop, prompting her trip to Canada;
(e) no evidence that the applicant had filed complaints with the police and no medical report about the assault on her;
(f) no evidence that her father was a priest;
(g) the applicant arbitrary dismissed the court certificate that she filed which corroborated that she had been assaulted; according to her counsel, the panel did not reasonably assess her explanation about the address indicated on the certificate.
[7] After reviewing the panel's record, it is my opinion that this application for judicial review must be dismissed. In my opinion, the panel could, in relying on the evidence before it or in drawing reasonable inferences from this evidence, find as it did on each element of credibility.
[8] This is especially the case with the omissions, contradiction and confusion about the address on the court certificate referred to by the panel, where the evidence, reviewed reasonably, supported the panel's findings on credibility. Counsel's arguments require me to reassess the evidence, which I cannot do.
[9] Also, in my view, the panel was entitled to draw negative inferences from the fact that the applicant did not leave the Ukraine in a timely fashion after enduring two attempted rapes and an assault at the beginning of 2002, and did not file documentary evidence of this, which the panel could reasonably require (see also rule 7 of the Refugee Protection Division Rules).
[10] Finally, it is my view that the panel considered the explanation given by the applicant regarding the address on the court certificate but was not satisfied with it. The evidence supports the panel's finding.
[11] For these reasons, this application for judicial review is dismissed. There is no question proposed for certification.
ORDER
THE COURT ORDERS that the application for judicial review is dismissed.
"François Lemieux"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6602-03
STYLE OF CAUSE: OKSANA DOBRYANSKA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 3, 2004
REASONS FOR ORDER AND ORDER: THE HONOURABLE MR. JUSTICE LEMIEUX
DATE OF REASONS: August 5, 2004
APPEARANCES:
Jacques Beauchemin FOR THE APPLICANT
Annie Van der Meerschen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jacques Beauchemin FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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