Date: 19971125
Docket: IMM-3833-96
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
TATIANA OSTAPENKO,
ALESIA IKAIKIN,
ANATOLI IKAIKIN,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
O R D E R
The application for judicial review of the decision rendered on September 30, 1996 by the Convention Refugee Determination Division, which found that the applicants are not Convention refugees, is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
November 25, 1997
Certified true translation
Christiane Delon
Date: 19971125
Docket: IMM-3833-96
BETWEEN:
TATIANA OSTAPENKO,
ALESIA IKAIKIN,
ANATOLI IKAIKIN,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.:
[1] The application for judicial review concerns a decision rendered on September 30, 1996 by the Convention Refugee Determination Division, which found that the applicants Tatiana Ostapenko, her spouse Anatoli Ikaikin and their daughter Alesia Ikaikin are not Convention refugees as defined in subsection 2(1) of the Immigration Act and that there is no credible basis for their claims.
[2] The panel"s decision was based on the applicants" lack of credibility, pure and simple:
| [translation] The claimants are not credible, their story is not plausible and the evidence as a whole shows that it would not be reasonable to believe they might have had a fear " even a subjective one " of persecution within the meaning of the Convention. |
|
| For these reasons, the panel concludes that Tatiana OSTAPENKO, her spouse Anatoli IKAIKIN and their daughter Alesia IKAIKIN are not Convention refugees as defined in section 2(1) of the Immigration Act and that there was no credible basis for their claims. |
|
[3] In Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, at pages 316-17, Décary J.A., writing for the Federal Court of Appeal, described the standard of deference applicable to such a panel"s finding of credibility:
| 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. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. 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. |
|
[4] In the case at bar, in view of the evidence in the record, including the documentary evidence filed with the panel by the refugee claim officer (RCO), I have not been persuaded that the assessment of the applicants" credibility was not arrived at properly. Accordingly, having regard to the principles noted by the Federal Court of Appeal in Sheikh v. Canada (M.E.I.) , [1990] 3 F.C. 238, at page 244, the panel could reasonably conclude as it did, since its perception that the applicants were not credible effectively amounted to a finding that there was no credible evidence to justify either the refugee claims in question or a conclusion that those claims had a credible basis.
[5] It should be recalled that the Refugee Division is normally entitled to give more weight to the documentary evidence submitted by the RCO than to an applicant"s testimony. In Zhou v. M.E.I. (July 18, 1994), A-492-91, Linden J.A., writing for the Federal Court of Appeal, stated the following on this point:
| We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed. |
|
[6] In Victorov v. M.C.I. (June 14, 1995), IMM-5170-94, Noël J. noted the following at pages 3-4:
| I also reject the applicants" argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did. |
|
(Emphasis added.)
[7] Moreover, it appears that the panel considered all of the documentary evidence, including that adduced by the applicants, before concluding that the state of Israel is able to protect its citizens and help them obtain redress for any harm they have suffered, which results more from harassment, discrimination and crime than true persecution. In this regard, it has been established that a finding of discrimination rather than persecution falls directly within the Refugee Division"s jurisdiction. In Sagharichi v. Canada (M.E.I.) (1993), 182 N.R. 398, Marceau J.A. stated the following at page 399:
| It is true that the dividing line between persecution and discrimination or harassment is difficult to establish, the more so since, in the refugee law context, it has been found that discrimination may well be seen as amounting to persecution. . . . It remains, however, that in all cases, it is for the Board to draw the conclusion in a particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this court is not warranted unless the conclusion reached appears to be capricious or unreasonable. |
|
[8] For these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
November 25, 1997
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: TATIANA OSTAPENKO ET AL. v. M.C.I. |
| PLACE OF HEARING: Montréal |
| DATE OF HEARING: November 12, 1997 |
| REASONS FOR ORDER BY: PINARD J. |
APPEARANCES:
Michelle Langelier FOR THE APPLICANTS
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANTS
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
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