Date : 19991108
Docket: IMM-6551-98
BETWEEN:
KATERYNA TSON,
MYKHAYLO PROTSYK,
NADYA SYLVESTER,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review from a decision by the Refugee Division dated December 7, 1998 in which the Division concluded that the plaintiffs were not Convention refugees.
FACTS
[2] Kateryna Tson and her two minor children are citizens of the Ukraine. Ms. Tson operated a farm and was a member of the Ukrainian farmers" union. She alleged that the farmers were subjected to bloody attacks by former communists who opposed privatization.
[3] She said that her two brothers were killed, her son was beaten, she was threatened, her animals were poisoned and her farm was burnt. She stated that she sought protection from the police but it was denied to her.
[4] The plaintiffs alleged a fear of persecution because of their membership in a particular social group, namely farmers, and because of Ms. Tson"s political opinions.
DECISION OF REFUGEE DIVISION
[5] The Refugee Division did not believe the story of persecution as alleged by the claimant. It noted that the claimant"s credibility was affected by several factors, including contradictions, omissions and improbabilities, and the Refugee Division elaborated and mentioned several examples in its decision.
[6] On reviewing the facts before it, the Refugee Division concluded that the claimants had not established that they had a reasonable fear of being persecuted because of their membership in the particular social group, namely farmers. Further, the Refugee Division concluded that there was no "credible basis" for such claims under s. 69.1(9.1) of the Immigration Act .
PLAINTIFFS" ARGUMENTS
[7] The plaintiffs alleged that despite the evidence the Board did not analyse the plaintiff"s fear of returning: it failed to take into consideration important documents filed, such as the two letters from the Ukrainian authorities refusing to carry out an investigation, the will of the Canadian grandfather and the newspaper article of November 4, 1997 dealing with the murder of a farmer.
[8] The plaintiff noted that the Board criticized her for hesitating to specify the cost of the farm. She pointed out that the farm was purchased gradually, first land, then the construction of the buildings and the animals.
[9] She noted that the Board blamed her for not specifying the year in which she received the amount of the estate, although the Canadian will was entered in the record in full, and her testimony was to the effect that the amount received under the will was received through another person, in cash and in several payments.
DEFENDANT"S ARGUMENTS
[10] The defendant noted that the plaintiffs" memorandum did not make any mention of the reasons given by the Refugee Division, in particular concerning the findings of contradictions and omissions in the evidence.
[11] The defendant submitted that it was strange that the plaintiff could obtain copies of documents from the authorities refusing to conduct an investigation into the death of her two brothers but could not obtain a copy of the documents affecting her personally.
[12] Counsel for the defendant stated that the principal claimant submitted no document regarding ownership of the farm and no document showing her involvement in the Ukrainian farmers" association.
[13] The defendant submitted that it was not the absence of evidence which led to the finding by the Refugee Division of a lack of credibility, but the contradictions and omissions in the plaintiffs" evidence.
ANALYSIS
[14] In Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598, Hugessen J.A. observed:
| The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. |
[15] The argument put forward by the plaintiffs that the panel failed to take certain documentary evidence into account must be dismissed. A presumption that all the evidence was considered exists and in this specific case the Refugee Division expressly mentioned in its decision the two documents dealing with the claimant"s brothers.
[16] As Décary J.A. of the Court of Appeal mentioned in Aguebor v. M.E.I., case A-1116-91, dated July 16, 1993:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[17] In Abilio v. M.C.I., case IMM-6112-93, dated October 13, 1994, Richard J. noted:
| First, it should be noted that the panel decided that the cumulative effect of the deficiencies in the applicant"s testimony had entirely undermined his credibility. The panel did not accept the applicant"s oral evidence. The applicant filed no other evidence regarding the murder of members of his family or the circumstances surrounding this event. |
[18] A review of the transcript discloses several contradictions that were mentioned by the panel. The panel asked for several explanations regarding certain allegations thought to be contradictory and improbable. The plaintiffs could not provide satisfactory explanations.
[19] On the evidence presented, it was not unreasonable to conclude that the plaintiffs were not refugees.
[20] The plaintiffs did not succeed in establishing that they had an objective and subjective fear of persecution.
[21] For all these reasons, the application for judicial review is dismissed.
[22] None of the counsel submitted a serious question for certification.
OTTAWA, ONTARIO,
November 8, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: KATERYNA TSON et al. |
v.
MCI
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 29, 1999 |
| REASONS FOR ORDER AND ORDER BY: BLAIS J. |
APPEARANCES:
| SERBAN MIHAI TISMANARIU FOR THE APPLICANT |
| DANIEL LATULIPPE FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| SERBAN MIHAI TISMANARIU FOR THE APPLICANT |
| SHERRY RAFAI-FAR FOR THE RESPONDENT |
Morris Rosenberg
Deputy Attorney General of Canada
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