IMM-4667-96
B E T W E E N:
OLGA
NECHIPORENKO
Applicant
-
and -
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
GIBSON, J.:
These reasons arise out of an application for judicial review
of a decision of the Convention Refugee Determination Division (the
"CRDD") of the Immigration and Refugee Board wherein the CRDD
determined the applicant not to be a Convention refugee within the meaning of
subsection 2(1) of the Immigration Act. The decision of the CRDD is dated
the 26th of November, 1996.
The applicant is a citizen of Ukraine. She bases her claim
to Convention refugee status on an alleged well-founded fear of persecution if
required to return to Ukraine by reason, by reference to her Personal
Information Form, of her religion, and by reference to the reasons for decision
of the CRDD, her nationality. The distinction is without a difference since,
in each case, it is apparent that her claim is based upon her Jewishness.
The applicant described in her Personal Information Form
and in her testimony before the CRDD discrimination, harassment and violence
that she had suffered in Ukraine by reason of her Jewishness. The most severe
violence was when she was struck by a car and suffered a concussion and
bruising with resultant hospitalization. She also attested to the failure of
state protection.
The Applicant determined to escape Ukraine.
The applicant met a Canadian citizen in Ukraine. The
applicant's version of how they met and what transpired differed dramatically
from that of the Canadian citizen. In any event, following his return to
Canada, the Canadian citizen wrote to the applicant and invited her to Canada
at his expense. She took up the invitation. Very shortly after she arrived in
Canada, it become apparent that the two had very different expectations of what
would then transpire. The applicant quickly severed her relationship with the
Canadian citizen and made her claim to Convention refugee status.
The Canadian citizen was concerned that, not only had he
been taken advantage of, but the applicant was abusing the refugee claim system
in Canada.
The Canadian citizen, either through the Immigration and
Refugee Board or through the respondent's ministry, became aware of the
applicant's refugee claim. He undertook an extensive writing campaign, both to
politicians and to the Immigration and Refugee Board, in which he was highly
critical of the applicant.
The CRDD determined to treat the Canadian citizen's
correspondence as evidence before it in respect of the applicant's claim. In
the result, counsel for the applicant requested that the CRDD compel the
attendance of the Canadian citizen before it so that he could cross-examine the
Canadian citizen. Before me, he argued that he was left with no alternative
but to do so. The CRDD complied with the request, the Canadian citizen
attended and was cross-examined.
Before the Canadian citizen attended, counsel for the
applicant sought a new hearing for his client alleging prejudice by reason of
the "breach of confidentiality" that enabled the Canadian citizen to
identify a specific date fixed for a hearing of the applicant's claim. His
application was denied. Nonetheless, counsel continued to maintain his
objection to the process and to allege prejudice to his client.
In the end result, despite the fact that, on
cross-examination of the Canadian citizen, it became apparent that he lied when
he denied that he ever threatened violence to the applicant, the CRDD preferred
his evidence to that of the applicant. It concluded:
The panel does not find the
claimant to have been a reliable witness. It does not find that based on the
evidence before it, it can come to a finding that the plaintiff is of Jewish
ethnicity. A finding of Jewish ethnicity is central to the claim. Having
considered all the evidence, for all the reasons outlined above, the panel
finds that good grounds do not exist that the claimant would be persecuted for
a Convention reason if returned to the Ukraine. The panel therefore determines
that Olga Nechiporenko is not a Convention refugee.
Before me, counsel for the applicant
alleged two reviewable errors on the part of the CRDD. First, he urged that
the applicant was denied her right to a hearing in camera as provided
for by subsection 69(2) of the Immigration Act and secondly, he urged
that the CRDD erred in law in making a finding as to the credibility of the
applicant without taking into account the totality of the evidence before it
or, alternatively by making such a finding in an arbitrary and capricious
manner.
Subsection 69(2) of the Immigration
Act reads as follows:
(2) subject to subsections (3) and
(3.1), proceedings before the Refugee Division shall be held in the presence
of the person who is the subject of the proceedings, wherever practicable, be
conducted in camera or, if an application therefore is made, in public.
Neither subsection 69(3)
or (3.1) is relevant for the purposes of this application.
Counsel urged that, by
disclosing the date fixed for a hearing in respect of the applicant's claim, a
hearing that did not take place on the date disclosed, the respondent or the
Immigration and Refugee Board enabled the Canadian citizen to commence his letter
writing campaign to influence the CRDD, to the prejudice of the applicant, with
the result that applicant's counsel had no alternative but to request the
attendance of the Canadian citizen at a CRDD hearing for purposes of
cross-examination, thus breaching the obligation to hold the totality of the
applicant's hearing in camera in circumstances where no application had
been made for the hearing to be held in public.
I am satisfied that this
argument cannot succeed. First, there is simply no evidence before me which
would allow me to conclude that the Canadian citizen's letter writing campaign
would not have had the same effect if he had been unaware of a specific
scheduled hearing date. Second, the statutory requirement for an in camera
hearing was simply not breached. An in camera hearing does not equate
to a hearing at which only the CRDD members, a Refugee Claim Officer, a
translator and the applicant and her counsel are present. The presence of the
Canadian citizen at the request of counsel for the applicant did not make the
hearing otherwise than in camera. In The Queen v. C.B., Mr.
Justice Chouinard relied upon the following definition of in camera from
Jowitt's Dictionary of English Law, 2nd edition,:
...when the judge either hears it
in his private room, or causes the doors of the court to be closed and all
persons, except those concerned in the case, to be excluded.
Here, although no judge
was involved but rather the CRDD, it was not alleged before me that any aspect
of the applicant's hearing before the CRDD was conducted under circumstances
other than circumstances in which all persons, except those concerned in the
case, were excluded. The Canadian citizen who was a witness had amply
demonstrated that he was a person concerned in the case, and as a witness, I am
satisfied that such was the case.
On the second issue, the
CRDD went to some length to justify its finding against the credibility of the
applicant. As indicated earlier, it preferred the evidence of the Canadian
citizen over that of the applicant, notwithstanding the fact that he testified
that he never threatened violence against the applicant when it was clear that
he did. It noted implausibilities, inconsistencies and contradictions on which
it based its conclusion.
In Aguebor v. Ministre
de L'Emploi et de l'Immigration,
Mr. Justice Décary wrote:
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 gage 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 the 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.
I reach the same
conclusion here. In the result, this application for judicial review will be
dismissed.
Counsel for the applicant
recommended certification of a question as to whether the right to an in
camera hearing provided by subsection 69(2) of the Immigration Act
was violated on the facts of this matter. Counsel for the respondent urged
that this matter turned on its particular facts and any question such as that
proposed, while a serious question of law would not be a question of general
importance. I am in agreement with the position of counsel for the
respondent. My determination with respect to the first issue referred to above
turns entirely on the particular facts of this matter. In the result, no
question will be certified.
Judge
Ottawa, Ontario
August 18, 1997
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