Date: 20091223
Docket: IMM-2952-09
Citation:
2009 FC 1308
Ottawa, Ontario, December 23, 2009
PRESENT:
The Honourable Mr. Justice Boivin
BETWEEN:
NATALYA CHSHERBAKOVA
ANATOLIY CHSHERBAKOV
Applicants
and
MINISTER
OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C., 2001, c. 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the panel) dated May 26, 2009, determining that the applicants are
not Convention refugees or persons in need of protection.
Issues
[2]
The issues
are:
- whether the panel erred when
it found that the applicants were not credible; and
- whether the panel violated
the principles of procedural fairness.
[3]
For the
following reasons, the application for judicial review is dismissed.
Factual Background
[4]
The female
applicant, Natalya Chsherbakova, and her son, Anatoliy Chsherbakov, are
citizens of Kazakhstan. The female applicant is the designated representative
of her son.
[5]
The
applicants allege that they resided in the city of Almaty in Kazakhstan before
coming to Canada. They contend that they had to flee that country because they
had been pursued since April 2006 by the female applicant’s former husband,
Turgun Salibekov, who is a senior officer in the Almaty police. The
applicants allege that they are fleeing spousal violence and persecution they
suffered at the hands of the female applicant’s former spouse.
[6]
The female
applicant arrived in Canada on November 21, 2006, and the applicants claimed
refugee protection on December 1, 2006.
Impugned Decision
[7]
The panel
was of the opinion that the applicants are not Convention refugees or persons
in need of protection, because they did not establish the credibility of their
allegations.
[8]
The panel
found the applicants’ account not to be credible. More specifically, the panel
concluded that the applicants had not proved the existence of the agent of
persecution. As well, the applicants did not prove that they lived in Kazakhstan
during the relevant period.
Standard of Review
[9]
Where the
issue is credibility and assessment of the evidence, it is settled law, under
paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985,
c. F-7, that the Court will intervene only if the decision is based on an
erroneous finding of fact made in a perverse or capricious manner or without
regard for the evidence.
[10]
As well,
the panel is a specialized tribunal and its findings in respect of credibility
are questions of fact. The Court will therefore intervene only in the event of
patently unreasonable error (Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.)).
[11]
Assessing
credibility and assessing the evidence are matters within the authority of the
administrative tribunal, which must assess a refugee claimant’s allegation of
subjective fear (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
(1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 at para. 14). Before the
decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the
standard that applied in these circumstances was patent unreasonableness. The
standard is now reasonableness.
[12]
Violations
of procedural fairness are subject to the correctness standard of review (Ha
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R.
195; Dunsmuir).
Analysis
[13]
The female
applicant alleged before the panel that she feared her former husband, a
Mr. Salibekov, because she had suffered sexual violence at his hands.
However, the Court is of the opinion that the female applicant did not submit
probative evidence in support of her claim for refugee protection. More
specifically, the absence of documentary evidence in support of their
allegations seriously undermined the applicants’ credibility.
[14]
In
particular, the female applicant stated that she lived with Salibekov for two
years, from 2004 to 2006, but could not submit any photographs of her and him
or of him alone, because, she said, she wanted to have nothing more to do with
him.
[15]
The female
applicant also stated that Salibekov is a senior officer in the Almaty police, but
she has no official or public document that could corroborate his existence.
The female applicant has no proof of residence or proof that she lived at that
address with Salibekov, and no driver’s licence or copy of her income tax
return in Canada.
[16]
The female
applicant stated that she left Kazakhstan with a forged passport on
November 21, 2006. No document that might establish when she left
Kazakhstan, whether an airline ticket, boarding pass, baggage receipt or bill
from a business at the airport, was presented to the panel. She stated that she
had given everything to her smuggler, but that explanation is insufficient. As
Justice Nadon stated in Elazi v. Canada (Minister of Citizenship and Immigration),
(2000), 191 F.T.R. 205, 100 A.C.W.S. (3d) 649 at paragraph 17:
I
take this opportunity to add that it is entirely reasonable for the Refugee
Division to attach great importance to a claimant's passport and his air
ticket. In my opinion, these documents are essential to establish the
claimant's identity and his journey to come to Canada. Unless it can be assumed
that a refugee status claimant is actually a refugee, it seems unreasonable to
me to ignore the loss of these documents without a valid explanation. In my
view, it is too easy for a claimant to simply state that he has lost these documents
or the facilitator has taken them. If the Refugee Division insists on these
documents being produced, the facilitators may have to change their methods.
Minimizing
the importance of the passport and air ticket as documents to be produced or
ignoring their non-submission for all sorts of reasons in my opinion only
serves to encourage all those whose only purpose is to take advantage of a
system which is intended solely to enable genuine refugees to come to Canada.
[17]
In short,
given that there were no documents, the female applicant could not corroborate
her account.
[18]
As a final
point, when the female applicant’s son was asked what country’s border was the
closest to Almaty, he replied China and Uzbekistan, although Almaty is less
than 30 kilometres from Kyrgyzstan. He was unable to name the major streets of Almaty
or the name of the street where the school he attended for seven years was
located.
[19]
This Court
has often noted that the panel may draw an unfavourable conclusion from the
fact that a refugee protection claimant has not produced corroborating evidence
to support his or her testimony when the panel has concerns about the
claimant’s credibility (Sinnathamby v. Canada (Minister of Citizenship and Immigration),
2001 FCTD 473, 105 A.C.W.S. (3d) 725; Muthiyansa v. Canada (Minister of
Citizenship and Immigration) 2001 FCTD 17, 103 A.C.W.S. (3d) 809; Quichindo
v. Canada (Minister of Citizenship and Immigration), 2002 FCTD 350, 115
A.C.W.S. (3d) 680).
[20]
The
applicants allege that the panel had no reason to reject certain documents in
the records without valid reason, in particular by relying on the fact that
trafficking in forged documents occurs. On reading the panel’s decision, the
Court is of the opinion, rather, that the panel rejected the documents based on
the applicants’ testimony, to which the panel assigned no credibility, and it
was only as an alternative and supplementary reason that the panel referred to
trafficking in forged documents. Accordingly, and this is settled law, when a
person is found not to be credible, that finding extends to all evidence
presented by that person (Herman v. Canada (Minister of Citizenship and Immigration),
2008 FC 1077, 75 Imm. L.R. (3d) 82 at para. 27; Sheikh v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C. 238, 112 N.R. 61 (F.C.A.)).
[21]
The
applicants also submitted that the panel violated the principles of procedural
fairness by failing to honour its undertaking at the hearing on March 26,
2009, not to make a final decision without first obtaining the contents of the
male applicant’s visa application file at the Embassy of Canada in Moscow to
give the applicants a chance to prove legal residence in Kazakhstan during the
period from 2004 to 2006. On that point as well the Court disagrees with the
applicants. The transcript indicates that there was discussion between counsel
for the applicants and the panel. The relevant discussion in the tribunal’s
record is as follows:
[translation]
Q.: That is exactly why … So generally
they send it. When Immigration, when there is a refugee claim, that is why I
was surprised, they did not include the visa application form for the son
Anatole.
A.: Mm hmm. Well, if that is what you
want. Because if we do that we are going to do other searches too, eh? We are going
to have the authenticity of the documents verified and we are going to do a lot
of things. But if that is what you want. I will request it. It should not be
too complicated to get. (p.251)
- So I will take it all under advisement
and I reserve the right to – to request … I am going to request the visa
document. I am going to see whether it is worth going into it further perhaps,
authenticating certain documents. I will keep you informed if necessary.
(p. 259)
(Emphasis
added)
[22]
On reading
the discussion, however, the Court is of the opinion that the panel did not
give any undertaking to counsel for the applicants. On the contrary, by
concluding at the end of the hearing as it did, the panel indicated that it was
taking the matter under advisement and further stated that it would follow up [translation] “if necessary”. Based on
that discussion, the Court cannot conclude that the panel undertook to obtain
the contents of the applicant son’s visa application first, before making a
decision. Consequently, the Court rejects the argument that the panel violated
the principles of procedural fairness by not adhering to its own procedure.
[23]
Accordingly,
given the absence of probative evidence to corroborate the applicants’ account
and testimony, the panel reasonably concluded that the applicants were not
credible and did not violate the principles of procedural fairness.
[24]
The
parties did not submit a question for certification and there is no question in
this case.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for judicial
review be dismissed. No question will be certified.
“Richard Boivin”
Certified
true translation
Brian
McCordick, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2952-09
STYLE OF CAUSE: Natalya
CHSHERBAKOVA and Anatoliy CHSHERBAKOV v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 16, 2009
REASONS FOR
JUDGMENT: BOIVIN J.
DATED: December 23, 2009
APPEARANCES:
|
Alain Joffe
|
FOR THE APPLICANTS
|
|
Alexandre Tavadian
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Alain Joffe
Attorney
|
FOR THE APPLICANTS
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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