Date: 20110404
Docket: IMM-5075-10
Citation: 2011 FC 408
Ottawa, Ontario, April 4, 2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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VERA HUSEYNOVA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Applicant seeks to overturn an adverse decision by the Immigration and Refugee
Board (Board) which was based entirely on her lack of credibility.
II. FACTUAL
BACKGROUND
[2]
Ms.
Huseynova is a 67 year old woman who was born in Russia but moved to
Azerbaijan and became a citizen when the Soviet Union
disintegrated. Her husband died in 1998 and her son moved to Canada in 2005.
[3]
The
Applicant claimed that she had volunteered with a human rights organization
which was engaged in collecting information about the abuse suffered by
soldiers in the Azerbaijani army. She claims that she was subjected to
threatening phone calls, police arrest and other acts of intimidation. She fled
after she was assaulted by two women and told to cease her volunteer work.
[4]
The
Board rejected the Applicant’s claim because of serious credibility concerns.
There were three adverse credibility findings and one implausible conclusion.
The Board commenced its reasons by committing an error in describing the
Applicant as a Russian citizen with a Russian passport.
[5]
The
Board did not accept the Applicant’s explanation for her not having a
membership card in the human rights organization, found her explanation of
joining the organization inconsistent, and concluded that her explanation for
using different names for the organization as nonsensical. The Board concluded
that the Applicant was “seriously lacking in credibility” and denied her
refugee and protection claim.
III. ANALYSIS
[6]
It
is well established law that credibility and plausibility determinations are
factual in nature. The applicable standard of review is reasonableness (Dunsmuir
v New
Brunswick,
2008 SCC 9). It is equally well established that considerable deference is owed
to the Board by virtue of its special position as a trier of fact combined with
its area of expertise (Hassan v Canada (Minister of Citizenship and
Immigration), 2010 FC 1136; Gatore v Canada (Minister of Citizenship and
Immigration), 2009 FC 702).
[7]
The
Board’s error that the Applicant is Russian is concerning to the Court but not
fatal to the reasonableness of the decision. When one reads the decision as a
whole, it is apparent that the Board understood the Applicant’s nationality and
assessed her situation based upon her Azerbaijan citizenship and her
situation in that country. Therefore, the error is immaterial.
[8]
There
is no basis for the Applicant’s allegation of bias or reasonable apprehension
of bias. A review of the transcript establishes no basis for this contention.
[9]
The
Board’s concern about the Applicant’s seeming inability to keep the name of her
organization straight is not microscopic. It is the very type of evidence which
can and does go to credibility.
[10]
The
Applicant suggests that the confusion in this area of testimony resulted from
problems with the translation of the nuances of language. If the Applicant
wished to seriously make that claim, she ought to have produced evidence. If,
for some reason, certain words are nuanced and may lead to different choices of
words by the translator or words and concepts not readily translatable into
English, then the proper way to proceed is by way of expert or at least
knowledgeable evidence of this linguistic/translation issue. There was no such
evidence here.
[11]
A
fair reading of the transcript disclosed that there was an evidentiary basis
for the Board’s credibility/plausibility conclusion. While not everyone would
necessarily reach the same conclusion, particularly those who do not have the
opportunity to observe the witness (as the Board did), the very essence of
deference is that the Court will not substitute its view of the evidence or
apply its own weight to the testimony where there is a reasonably based Board’s
conclusion. That is the situation in this case.
[12]
There
is no basis for the Court’s intervention.
IV. CONCLUSION
[13]
This
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed.
“Michael
L. Phelan”
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