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Federal Court
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Cour fédérale
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Date: 20090521
Docket: IMM-3890-08
Citation: 2009
FC 526
Ottawa, Ontario, May 21, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
ANDREY
KORNIENKO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr. Andrey
Kornienko (the “Applicant”) seeks judicial review of the decision of the
Refugee Protection Division, Immigration and Refugee Board (the “Board”) dated
August 2008. In that decision, the Board found the Applicant not to be a
Convention refugee nor a person in need of protection pursuant to sections 96
and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”).
[2]
The
Applicant is a citizen of Russia from the town of Irkutsk in Siberia. He operated a sports
equipment business. In October 2002, two men began extorting $200.00 a
month from him. About 11 months later, they increased their demands to $1000.00
a month. The Applicant could not afford to pay this amount. He claims that they
followed him on an out-of-town trip, stopped and beat him. The Applicant
visited a hospital where he made a report and the police were called. According
to the Applicant, the police advised him to downplay the matter and expressed
the opinion that his injuries were the result of a fall while skiing.
[3]
The
Applicant also claimed that the extortionists had stolen computers from his
shop. The Applicant sought recovery against his insurance company in that
regard. When his claim was denied, he brought an action. His lawsuit was
dismissed and the Applicant alleges that the Court was bribed to do so.
[4]
The
Applicant then pursued an arbitration of his claim. Subsequently, a dead dog
was left at his door with a note saying that he would meet the same fate if he
did not abandon the arbitration.
[5]
At this
time, that is in February 2005, the Applicant told his wife to move to his
mother’s residence and he left the country for Canada. He asked a neighbour to look after his
apartment. In August 2005, the neighbour told him that his apartment had been
vandalized and that the persons responsible for the damage claimed to have done
so on behalf of the insurance company.
[6]
The
Applicant had entered Canada in March 2005. Upon receipt
of the news about the destruction of his apartment, he filed a claim for
refugee protection in August 2005.
[7]
The Board
found that the basis of the Applicant’s claim for refugee protection was
criminality, that is the extortion that had been committed against him. It
determined that this criminal activity had no nexus to the grounds for refugee
protection that are set out in section 96 of the Act and further, that there
was no evidence that government organizations were involved in the criminal
activity against the Applicant. The Board concluded that the Applicant would
not face persecution on a Convention ground if he returned to Russia.
[8]
The Board
then considered whether the Applicant is a person in need of protection
pursuant to section 97 of the Act. It made a negative finding in that regard.
Relying on specialized knowledge, the Board rejected the Applicant’s evidence
about the medical report that he had received after the hospital visit
following the beating that he suffered. It considered the various scenarios
that the Applicant had presented relative to his problem with the extortionists
and gave reasons for not finding them to be credible.
[9]
The Board
discussed a possible Internal Flight Alternative (“IFA”), a subject that was
raised with the Applicant during his hearing. The Applicant had rejected the
possibility of an IFA when the matter was addressed during his hearing.
[10]
The Board
acknowledged the Applicant’s evidence that he had postponed making a claim for
refugee protection after he arrived in Canada because he hoped that the
situation in Russia would change sufficiently to
allow him to return home. The Board concluded that a delay of six months in
claiming protection demonstrated a subjective lack of fear, saying that “…
on a balance of probabilities, I find the claimant’s explanation for the delay,
not to be credible and on a balance of probabilities, I find that the claimant
lacks subjective fear”. For these reasons, the Board concluded that the
Applicant was not a person in need of protection pursuant to section 97 of the
Act.
[11]
In this
application for judicial review, the Applicant challenges the Board’s
credibility findings and argues that the Board erred in reaching these
conclusions on the basis that it ignored the evidence that was before it.
[12]
As well,
the Applicant raises an issue of procedural fairness and submits that the Board
breached the rules of procedural fairness by proceeding with the hearing
without first seeking a forensic analysis of the medical report.
[13]
Pursuant
to the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190, decisions of administrative tribunals are
reviewable on the standard of reasonableness where questions of fact are
involved. Credibility is a question of fact. Issues of procedural fairness are
reviewable on the standard of correctness.
[14]
The first question to be addressed is whether
the Board committed a reviewable error in assessing the Applicant’s
credibility, particularly with respect to the medical report that he submitted.
[15]
The medical report is called “Forensic Examination Report”. It
was issued by the Irkutsk Regional Office of Forensic Medicine, Shelekhov Department.
The Report says “The patient did not seek emergency assistance in medical
institutions”. In contrast, in his affidavit filed in support of this
application for judicial review, at paragraph 15, the Applicant deposes that
“After the beating I went to the hospital…”. Before the Board, the Applicant
testified that following the beating, “After some time when I felt better I
went to another city and went to a trauma department in that city.”
[16]
These passages illustrate the type of
inconsistent evidence that was before the Board. The Board provided clear
reasons for its assessment of the evidence. In my opinion, the Board’s
conclusions about the Applicant’s credibility were reasonably supported by the
evidence and there is no basis for judicial intervention in that regard.
[17]
Did the Board commit a breach of natural justice
by failing to obtain a forensic analysis of the medical report?
[18]
In this regard, I note that the Applicant relied
on prior decisions that relate to errors by the Board in failing to
authenticate identity documents, including Ramalingam v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 10 (QL). He concedes that
the medical report is not an identity document but because it was produced by a
government run institution, the presumption of validity of government issued
documents should apply.
[19]
I note that the medical report is not an
identity document and, in this case, the Board gave reasons why it found the
document to be unreliable and further, why it did not believe the Applicant’s
evidence about the circumstances in which it was issued.
[20]
I refer to the decision in Culinescu v. Canada (Minister of Citizenship and
Immigration) (1997), 136 F.T.R. 241 where the Court
said the following about the Board’s duty to authenticate documents, at
paragraphs 14 and 15:
a.
In the
case at bar, the applicants contend that the panel
committed an unreasonable error in
finding that their claims concerning legal proceedings were implausible. Their
argument is based on the fact that there was no evidence that contradicted
their testimony or that could have caused it to be implausible. They submit
that it was the Board’s duty to have the documents they filed in evidence
studied by experts, especially if it doubted their authenticity.
b.
The Board
had no such duty. It is enough that there be sufficient
evidence before it to cast doubt on the
authenticity of the order to stand trial to find that the applicant’s testimony
was implausible. In the case at bar, the documentary evidence was convincing
enough to support the Board’s findings. Its findings are accordingly not
perverse, capricious or patently unreasonable so as to justify the Court’s intervention.
I would like to add that the Board’s record contains no evidence capable of
vitiating the panel’s findings.
[21]
The Board
here had the opportunity to review all the documents and to observe the
Applicant while he gave his testimony. Considered globally, the oral and
documentary evidence support the Board in finding him not to be credible. The
lack of credibility was not based solely upon the Board’s assessment of the
medical report.
[22]
In the
result, the Board’s final determination was not unreasonable and there is no
basis for judicial intervention.
[23]
This
application for judicial review is dismissed. There is no question for
certification arising from this application for judicial review.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial review is
dismissed, no question for certification arising.
“E.
Heneghan”
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