IMM‑4693-96
BETWEEN:
VIKTOR
ANISIMOV
ALEXANDRA
ANISIMOVA
ALEXEI
ANISIMOV
ALEXANDRE
ANISIMOV,
Applicants,
-
and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION,
Respondent.
REASONS
FOR ORDER
DUBÉ J:
This is an application to
review a decision of the Convention Refugee Determination Division of the
Immigration and Refugee Board ("the Board") dated November 26, 1996,
wherein it was determined that the applicants were not convention refugees.
The applicants (husband,
wife and two children) are citizens of Kazakhstan. Their claim is based on a
fear of persecution for reasons of race and religion. The husband is Christian
by religion and Russian by birth whereas his wife is of the Jewish nationality.
In its decision, the
Board reviewed several allegations of incidents suffered by members of the
Anisimov family. However, the Board concluded that the applicants were not
credible. In so doing, the Board relied heavily on documentation to the effect
that Russians and Jews, although at times victims of discrimination, were not
subjected to persecution in Kazakhstan. Moreover, the Board held that there
was an internal flight alternative open to them in other areas of the country.
Counsel for the
applicants relied on a recent decision of this Court, Vladimir Komarnitski
and The M.C.I.,
holding that the Board committed a reviewable error when it based its
credibility finding on external contradictions or inconsistencies, contrary to
the principles articulated by MacGuigan J.A. in Luis Fernando Soto Y Giron
v. M.E.I.,
wherein the learned judge said as follows:
The
Convention Refugee Determination Division of the Immigration and Refugee Board
("the Board") chose to base its finding of lack of credibility here
for the most part, not on internal contradictions, inconsistencies, and
evasions, which is the heartland of the discretion of triers of fact, but
rather on the implausibility of the claimant's account in light of extrinsic
criteria such as rationality, common sense, and judicial knowledge, all of
which involve the drawing of inferences, which triers of fact are in little, if
any, better position than others to draw.
However,
that decision was referred to by the Federal Court of Appeal in Aguebor v.
M.E.I.
and held that the Giron decision
did not reduce the burden of showing on judicial review that the inferences
drawn by the Board could not reasonably have been drawn. Decary J.A. said as
follows:
...The
Court did not, in saying this, exclude the issue of the plausibility of an
account from the Board's field of expertise, nor did it lay down a different
test for intervention depending on whether the issue is
"plausibility" or "credibility".
...
...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.
...
...In
our opinion, Giron in no way reduces the burden that rests on an appellant, of
showing that the inferences drawn by the Refugee Division could not reasonably
have been drawn. In this case, the appellant has not discharged this burden.
Whether or not the
evidence adduced by the applicants was credible and sufficient to establish
persecution as opposed to mere discrimination was a decision for the Board to
make under the circumstances. It is not for the Court to intervene in the
absence of an overriding error on the part of the Board.
As to the internal flight
alternative, the onus of proof rests on the applicants to show, on a balance of
probabilities, that there is a serious possibility of persecution throughout
the country, including the areas specified by the documentation as being safe
havens affording internal flight alternatives. The applicants have not
satisfied the Board that such a serious possibility exists.
Consequently, the
application is dismissed.
O T T A W A
October 27, 1997
Judge
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