Milushev v. Canada (Citizenship and Immigration), 2007 FC 180

 

Date: 20070216

Docket: IMM-1255-06

Citation: 2007 FC 180

Ottawa, Ontario, February 16, 2007

PRESENT:     The Honourable Mr. Justice O'Keefe

 

 

BETWEEN:

PETAR NIKOLAEV MILUSHEV

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

O’KEEFE J.

 

[1]               This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the Board), dated February 8, 2006, which determined that the applicant was neither a Convention refugee nor a person in need of protection.

 

 

[2]               The applicant requests that the Board’s decision be set aside.

 

Background

 

[3]               The applicant, Petar Nikolaev Milushev, is a twenty-three year old citizen of Bulgaria. He alleged having a fear of persecution on the basis of his Roma ethnicity. The applicant described the circumstances leading to his claim for protection in the narrative portion of his Personal Information Form (PIF).

 

[4]               The applicant claimed that he was an ethnic Roma from the Muhtari clan of the Dessikane Roma. He was born in Sofia and his family originally lived in Fakulteta Roma Mahala. After their house was bulldozed, the applicant’s family was moved to a predominantly Bulgarian area, where he was harassed by neighbours and classmates for being Roma. In 2002, he began studying at Varna Free University, where he experienced harassment from fellow students due to his Roma ethnicity. The applicant claimed that he was easily identifiable as Roma, and as such, he was verbally and physically abused by Bulgarian racists and the police.

 

[5]               On May 18, 2002, and October 21, 2003, the applicant was attacked by skinheads shouting racial slurs. He sought medical attention and requested medical reports in order to provide them to the police. The applicant went to the police and filed reports following both incidents. The police made negative comments about Roma people and never acted upon his claims. Saro, the applicant’s neighbour, had participated in the second attack and threatened him with further beatings. On November 17, 2003, the applicant followed-up with the police and mentioned his neighbour’s threat. The police told him to leave and beat him with batons after he asked to speak to a senior officer. The police threatened him with detention and further beatings should he bother them again.

 

[6]               On November 19, 2003, the applicant contacted the prosecutor’s office and filed a complaint against the police regarding their brutality and unwillingness to help. The prosecutor did not respond; however on November 27, 2003, the applicant received a summons to attend at a police station. The applicant went to the station on December 4, 2003, and the police accused him of theft. The applicant explained that this accusation was a pre-text to punish him for having filed a complaint. He was detained overnight, beaten, and tortured with an electric baton. The police also threatened him with further mistreatment. The applicant sought medical attention and was provided with a report detailing his injuries. On April 21, 2004, the police raided the applicant’s home and again accused him of theft. They took the applicant, his brother, and his father to the police station, where they were detained, insulted, and beaten. The applicant sought medical attention and was provided with a fourth report detailing his injuries.

 

[7]               The applicant left Bulgaria on May 26, 2004, with a United States visa. He did not seek protection while in the United States, as his agent had told him that it would be difficult to succeed given post 9/11 conditions, and that if he made a claim, it would ruin his family’s chance of obtaining visas. The applicant did not claim asylum when he went to Greece in October 2002 either. He explained that he had not yet considered leaving Bulgaria permanently. By August 2004, the agent was still unable to provide his family with United States visas. The applicant therefore obtained a Canadian visa on September 1, 2004, and arrived in Canada on September 6, 2004. He made a claim for refugee protection the next day. 

 

[8]               On November 9, 2004, a summons was issued for the applicant, his father, and his brother to go to the police station on November 16, 2004. His father and brother attended and were questioned about a local theft, as well as about the applicant’s absence. The police threatened to harm the applicant when they got hold of him. His brother and father were beaten and detained overnight.

 

[9]               The applicant’s first refugee hearing was held on January 21, 2005, but the hearing was adjourned following problems with the interpreter. The Board made an acquisition of information (AIF) request in order to confirm the authenticity of the medical reports submitted by the applicant. The results revealed that two of the reports were authentic and two were fraudulent. The second hearing was held on May 13, 2005. By decision dated February 8, 2006, the Board rejected the applicant’s claim for protection. This is the judicial review of the Board’s decision.

 

Board’s Reasons

 

[10]           The determinative issues were the applicant’s Roma ethnicity, his failure to seek asylum in the United States, and the credibility of his evidence in support of allegations of harassment. The Board acknowledged that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there is reason to doubt their truthfulness (see Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.)). 

 

[11]           The applicant had no documents from Bulgaria supporting the claim that he was Roma. Dr. Derek Lee signed a document stating that the applicant was Roma following a short interview in which the applicant answered basic questions. The applicant alleged that he met Dr. Lee through another Roma person; however, Dr. Lee’s letter implied that this was not the case. 

 

[12]           During the first hearing, the applicant was unable to provide straightforward descriptions of the Roma clan he belonged to or the food he ate. His difficulties were not fully explained by problems with the interpreter. During the second hearing, the applicant named a song he alleged was popular at family gatherings and identified key dates for the Roma. He spoke what he claimed were Roma words but had difficulty speaking Roma spontaneously during the hearing. The applicant was unable to say the word “apple” in Roma, and provided few spontaneous details about Roma celebrations until questioned by counsel.

 

[13]           The applicant lacked spontaneity when describing how his family followed Roma traditions.  He had never attended a Roma funeral and had only been to one Roma wedding, which was inconsistent with the claim that his family followed Roma traditions. The applicant claimed that the general Bulgarian population celebrated events that he had identified as Roma, such as the celebration of New Year’s on January 14th. He had been to several non-Roma weddings and had attended a predominantly Bulgarian church. In addition, his parents spoke Bulgarian, he was not a member of any Roma group in Canada, and did not have any Roma friends. His only contact with the Roma community was through Dr. Lee, whom he appeared to have met in preparation for his refugee hearing. These factors led the Board to conclude that the applicant was not Roma.

 

[14]           The Board found that the applicant’s evidence gave rise to credibility concerns regarding his allegations of abuse. The applicant testified that he had been abused by skinheads and the police, and that his attempts to obtain police protection were unsuccessful. He provided copies of two summonses from the police which he alleged were in retaliation for his complaints. While the documents indicated that he was asked to attend an inquiry, they did not indicate in what capacity he was being summoned. 

 

[15]           The Board was also concerned about the applicant’s medical reports. The applicant claimed that he was attacked by skinheads on October 23, 2003, and submitted a medical report which had been issued at his request. While he testified that the incident took place on October 23, 2003, the report indicated that he was treated on October 22, 2003, in respect of injuries inflicted on October 21, 2003. The AIF response indicated that two reports were fraudulent and two were authentic. The applicant was given the opportunity to respond but failed to do so. The Board noted that where the applicant is shown to have impeached his credibility by tendering a false document, this is sufficient to impeach the credibility of his entire evidence (see Osayande v. Canada (Minister of Citizenship and Immigration) (2002), 113 A.C.W.S. (3d) 492). 

 

[16]           There were other issues concerning the applicant’s credibility: (1) the lack of documents establishing that he had studied at university (he had a student card but no transcripts); (2) his workbook was not in evidence; and (3) he did not refer to being Roma when making his claim for protection (the Board rejected his explanation that the officer who filled out the form did not read it back to him).

 

[17]           The Board was concerned that the applicant was country shopping. He spent four months in the United States but did not seek asylum there. The applicant explained that his agent had advised him not to make a claim in the United States; however, he also told an immigration officer that he intended to make a claim, but that his family had indicated that he had better chances in Canada.  The applicant returned to Bulgaria from Greece in 2002 because the agent had advised him not to remain in Europe. However, by that time he had already been beaten by skinheads. His failure to seek protection was not explained by the agent’s advice and was an indication of country shopping.  This pointed to a lack of subjective fear of persecution in Bulgaria. 

 

[18]           The Board concluded that the applicant had failed to establish by means of credible evidence, that there was a serious possibility that he would be persecuted in Bulgaria. In light of its findings regarding ethnicity, credibility and country shopping, the Board also found that he was not a person in need of protection.

 

 

 

Issues

 

[19]           I would rephrase the issues submitted for consideration by the applicant as follows:

            1.         Did the Board err in finding that the applicant lacked credibility?

            2.         Did the Board breach the principles of procedural fairness?

            3.         Did the Board err in failing to provide a separate analysis of the applicant’s claim under section 97?

 

Applicant’s Submissions

 

[20]           The applicant submitted that in assessing a refugee claim, the Board must consider all of the evidence, including sworn evidence and country condition documentation (see Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652 (C.A.)). It was submitted that the Board’s decision was reviewable where it erred in forming its opinion and where it acted arbitrarily or in light of irrelevant considerations (see Re: Inunza v. Canada (Minister of Employment and Immigration) (1979), 103 D.L.R. (3d) 105, 3 A.C.W.S. 276   (F.C.A.)). 

 

[21]           The applicant submitted that repeated harassment and the threat of detention amounted to persecution (Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.)). In addition, repeated acts of harassment may cumulatively amount to persecution (see Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (QL) (F.C.A.)). It was submitted that the Board may err if it looks at each incident of mistreatment separately (see El Khatib v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1415 (F.C.T.D.)).

 

[22]           The applicant submitted that the Board erred in allowing the refugee protection officer (RPO) to question him first.  Counsel had objected to the order of questioning in writing prior to the first hearing. The applicant noted that it was only during questioning by counsel that he was able to give clear details regarding his cultural experiences as a Roma. It was submitted that the RPO’s unfocused manner of questioning had a prejudicial impact upon the Board’s decision. The applicant submitted that where the order of questioning prejudices a claimant’s ability to present his case, a breach of natural justice has been committed (see Herrera v. Canada (Minister of Citizenship and Immigration) (2005), 136 A.C.W.S. (3d) 1107, 2004 FC 1724).

 

[23]           The applicant noted problems with the Board’s ethnicity finding. The Board noted that he did not have a document from Bulgaria supporting his ethnic identity, however, it was submitted that there were no government issued documents which would confirm Roma ethnicity. The Board referred to a letter by Dr. Derek Lee, but the letter was written by Ronald Lee, Director of Public Education and Awareness Programs of the Roma Community & Advocacy Centre. As such, it was submitted that he was ideally suited to confirm the applicant’s Roma ethnicity.

 

[24]           The Board noted that the applicant did not give straightforward descriptions of his clan or the food he ate. It was submitted that he answered the questions clearly. During the first hearing, he stated that his parents were Christian Roma and indicated their clans. When asked about food, the hearing ended due to interpretation problems. The applicant submitted that the Board did not consider that he might not have known the Roma word for “apple” due to the lengthy assimilation of the Roma in Bulgaria, or because his clan used the Bulgarian word for apple.

 

[25]           The applicant submitted that the fact that he had only attended one Roma wedding did not mean that his family did not follow Roma traditions. It was submitted that the Board misapprehended his evidence regarding the celebration of holidays by both Bulgarians and the Roma. The applicant explained that both groups may celebrate on the same day, but for different reasons. The applicant never said that the Bulgarians celebrated New Year’s on January 14th. The Board found that the applicant had no Roma friends; however, he testified that he met such friends at his church and celebrated New Year’s with them. 

 

[26]           The applicant then addressed the Board’s credibility concerns. In Kilola v. Canada (Minister of Citizenship and Immigration) (2000), 96 A.C.W.S. (3d) 291, the Court held that adverse credibility findings must be justified by internal contradictions, inconsistencies or evasions.  It was submitted that the Board misunderstood the evidence and drew a negative inference based on erroneous information. The Board found an inconsistency between the date in October 2003 upon which the applicant stated he was beaten and the date found on the medical report. However, the applicant’s PIF and the medical report both state that he was beaten on October 21, 2003, and there was no inconsistency with regard to this information. The Board also noted that the applicant had requested the medical reports. It was submitted that the police did not want to investigate the attacks; therefore, the applicant had to obtain the reports in order to present them to the police.

[27]           The applicant took issue with the finding that he had ample opportunity to respond to the AIF results. It was submitted that he should have been told to provide written submissions regarding the AIF or that a new hearing would be assigned. The applicant noted that two of the medical reports were authentic, and two were not, which suggested that some evidence was corroborated while some was not. It was submitted that the two reports which were allegedly false related to beatings by the police. The Board did not consider the possibility that the Bulgarian authorities might have had an interest in disavowing these documents.

 

[28]           The applicant submitted that there were no documents which would establish that he was a university student who sold flowers. He noted that he provided his student card and was not asked to submit transcripts or his workbook. The applicant submitted that the Board reached a patently unreasonable conclusion when it reasoned that he was not Roma because the immigration officer failed to record his ethnicity in the port of entry notes. 

 

[29]           The applicant submitted that the Board was obligated to provide reasons for rejecting his claim under section 97 of IRPA and erred in failing to do so. In Soleimanian v. Canada (Minister of Citizenship and Immigration) (2004), 135 A.C.W.S. (3d) 474, 2004 FC 1660, the Court concluded that a separate analysis under section 97 of IRPA was not required where there was no evidence that could establish that the claimant was a person in need of protection. It was submitted that where there was evidence establishing that a person was in need of protection, the Board must provide a separate analysis. The Board acknowledged that the applicant was beaten and that there was genuine medical evidence to this effect. The applicant submitted that given that a person need not have experienced torture or a risk to life or cruel and unusual treatment in order to fear it, the truthfulness of his account was not necessarily determinative of the risks he may face in Bulgaria. It was submitted that the Board should have considered the evidence and provided a reasoned analysis.

 

[30]           The applicant submitted that he fit the definition of a person in need of protection in that: (1) he was a citizen of Bulgaria only; (2) he could not seek the protection in Bulgaria since he feared the police and there was evidence that they committed crimes against minorities and refused to assist them; (3) he was subjectively fearful and documentary evidence provided an objective basis for his fear; (4) his fears were linked to his ethnicity; and (5) his fears were well-founded throughout Bulgaria based upon country condition documentation and the risks he faced had not ceased.

 

Respondent’s Submissions

 

[31]           The applicant was unable to provide credible evidence in support of his ethnicity. It was submitted that the Board’s reasons referred to many discrepancies and implausibilities in his story.  The respondent submitted that the Board had expertise in the determination of questions of fact and that the Court should not interfere with inferences or conclusions that were reasonably open to it on the record (see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.)). It was noted that the Board provided reasons for doubting the truthfulness of the applicant’s evidence (see Maldonado above).

[32]           The respondent submitted that the applicable standard of review was patent unreasonableness, and that the applicant had failed to point to a conclusion that was not supportable on the evidence (see Sinan v. Canada (Minister of Citizenship and Immigration) (2004), 128 A.C.W.S. (3d) 1173, 2004 FC 87). The respondent submitted that the Board properly concluded that the applicant’s failure to claim asylum in Greece and the United States cast doubt upon his subjective fear (see Heer v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 330 (F.C.A.)).

 

[33]           The respondent submitted that the Board properly analyzed the applicant’s claim for protection under section 97 of IRPA. The applicant failed to provide credible evidence regarding allegations about his ethnicity or fear of persecution and there was therefore no evidence of risk before the Board (see Bouaouni v. Canada (Minister of Citizenship and Immigration) (2003), 126 A.C.W.S. (3d) 686, 2003 FC 1211).

[34]           The applicant provided alternate explanations for the Board’s findings regarding credibility and the subjective basis of his claim. The Federal Court has held that it is not sufficient for an applicant to present alternative lines of reasoning when challenging plausibility and credibility findings, even where the alternative may be reasonable (see Sinan above). The respondent submitted that the Board properly determined that there was neither credible nor objective evidence to support the applicant’s allegations, and alternatively, that those allegations did not meet the threshold for persecution (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, (1993), 103 D.L.R. (4th) 1).

[35]           The respondent submitted that the applicant failed to establish that the hearing did not comply with natural justice. The Federal Court has stated that natural justice does not require counsel-first questioning (see Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 107, 2006 FC 461).

 

[36]           The respondent submitted that the fact that the tribunal failed to refer to all of the evidence when rendering the decision did not signify that it ignored evidence, if a review of the reasons suggested that all of the evidence was considered. It was submitted that the Court should not interfere with the Board’s analysis of the documentary evidence since significant deference is owed to the weighing of evidence (see Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, 36 A.C.W.S. (3d) 635 (F.C.A.)). The Board clearly addressed the medical evidence, sought verification of the documents, and gave the applicant ample opportunity to address concerns during the hearing. It was submitted that it was unnecessary for the Board to mention a report that neither corroborated the applicant’s story nor remedied credibility concerns.

 

Analysis and Decision

 

Standard of Review

 

[37]           It is well established that the standard of review applicable to the Board’s credibility and factual determinations is patent unreasonableness (see Juan v. Canada (Minister of Citizenship and Immigration) (2006), 149 A.C.W.S. (3d) 1103, 2006 FC 809 at paragraph 2). Breaches of procedural fairness are subject to review on the standard of correctness.

 

[38]           Issue 1

            Did the Board err in finding that the applicant lacked credibility?

            The applicant submitted that the Board misinterpreted evidence in reaching the conclusion that he was not Roma. I would first note that while the Board made a mistake regarding Ronald Lee’s name, the Board was entitled to weigh his letter and this error was not material. The Board found that the applicant had difficulty describing his clan and the food he ate, and determined that these difficulties were not fully explained by problems with interpretation. I have reviewed the hearing transcript and do not believe that the Board’s findings reflect the applicant’s testimony. The applicant stated the names of his parents’ clans and explained that his maternal grandfather was from a clan that travelled by horse-drawn wagon. With regard to the food his clan ate, the applicant answered as follows:

Q:  Right, but is there any special foods you eat?

 

A:  Beans; lamb; lentils; bannock (phonetic).

 

[39]           Problems with the interpreter caused the hearing to adjourn immediately after this exchange. During the second hearing, the applicant described the types of food his clan ate in more detail.

 

[40]           The Board found that the applicant lacked spontaneity in answering questions about his cultural experiences and noted that he had only attended one Roma wedding. The applicant explained that the RPO’s questioning was unfocused and he found it easier to respond to counsel’s questioning. The applicant testified about various Roma celebrations throughout the hearing, including St. George’s Day, Nestinali, New Year’s Eve, the celebration of unwed girls and St. Peter’s Day. I have reviewed the transcript and it appears that the applicant answered the questions put to him. The applicant also testified in great detail about the Roma wedding he had attended.

 

[41]           The Board noted that the applicant testified that Bulgarians and Roma celebrated New Year’s on the fourteenth of January. However, the hearing transcript reveals the following:

Q:  Do you know of any practices that the Roma people have that are different from the practices of followers of the Eastern Orthodox religion?

 

A:  For one thing I know that we celebrate the New Year on the 14^th of January, and the Bulgarians do that on the 31^st --- 31^st of December.

 

Q:  But the Orthodox people don’t they all have a different New Year’s than even in Canada?  In Canada we celebrate the people celebrate on the 31^st of December, so in Bulgaria wouldn’t all of the people celebrate New Years on the --- on a different day than you do?

 

A:  No, only us, the Roma people will celebrate on the 14^th of January.

 

In my view, this exchange reveals that the Board misinterpreted the applicant’s testimony.  The applicant never testified that the general Bulgarian population celebrated New Year’s on the fourteenth of January.

 

[42]           The Board found that the applicant did not have any Roma friends in Canada. However, the applicant testified that he had met Gluzin and other Roma people through his church. He stated that they celebrated New Year’s together but had lost contact. The applicant indicated that he met Ronald Lee through Gluzin. He also made it clear that he had not joined any Roma organizations in Canada because his father had never been formally involved in such a group and that he followed his example.

 

[43]           The Board found an inconsistency between the date upon which the applicant alleged that he was attacked by skinheads and the date found in his medical report. I would note that the applicant’s PIF narrative indicates that he was attacked on October 21, 2003, which was consistent with the report. In any event, the transcript does not show that the applicant stated that he was attacked on October 23, 2003.

 

[44]           The Board also considered the results of the AIF in relation to the four medical reports when assessing the applicant’s credibility. The AIF indicated that two of the medical reports were authentic while two of the reports were fraudulent. The genuine medical reports were in relation to the attacks by skinheads, while the reports deemed to be fraudulent were in relation to beatings by the police. The Board notified applicant’s counsel about the fraudulent reports when the results were received. This was after the hearing was completed but before the decision was rendered. The following is a portion of the letter sent to the applicant concerning one medical report:

Dear Counsel:

 

RE:                       PETAR NIKOLAEV MILUSHEV

File No:                TA4-14448

Proceeding Date: May 13, 2005                                  

 

            Please find enclosed some additional documents that are being disclosed to you prior to the proceeding in this matter. Copies of these documents have already been forwarded to the scheduled Member.

 

1.          SIRU Memorandum, dated June 1, 2005

 

            Prior to the proceeding, we request that you provide the Immigration and Refugee Board with three copies of all documents you intend to disclose at least 20 days before the proceeding date.

 

            Thank you for your co-operation. I look forward to seeing you at the proceeding.

 

Yours truly,

 

 

J. ROSS

Refugee Protection Officer

 

 

[45]           In my view, there was considerable merit in the applicant’s counsel’s belief that he would be given an opportunity to address the finding that two of the medical reports were fraudulent, especially when the letter states: “[ . . .] I look forward to seeing you at the proceeding.” There is no indication of any deliberate attempt to prevent the applicant from addressing the findings but this is one of the dangers of using form letters without making the necessary changes.

 

[46]           I am of the opinion that the Board’s negative credibility finding was patently unreasonable, and it was based upon a misapprehension of the facts that were before the Board. In addition, the fact that two of the medical reports were determined to be fraudulent should not have resulted in a negative credibility finding, since the applicant was not given an opportunity to address them.

 

[47]           The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.

 

[48]           I need not deal with the other issues because of my finding on this issue.

 

[49]           Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

 

JUDGMENT

 

[50]           IT IS ORDERED that the application for judicial review is allowed, the decision of the Board is set aside and the matter is referred to a different panel of the Board for redetermination.

 

 

 

“John A. O’Keefe”

 

 ANNEX

 

Relevant Statutory Provisions

 

The relevant statutory provisions are set out in this section.

 

The Immigration and Refugee Protection Act, S.C. 2001, c.27.:

 

 

 

 

 

 

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-1255-06

 

STYLE OF CAUSE:                          PETAR NIKOLAEV MILUSHEV

 

                                                            - and -

 

                                                            THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      February 6, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT OF:                    O’KEEFE J.

 

DATED:                                             February 16, 2007

 

 

 

APPEARANCES:

 

Robert E. Moores	FOR THE APPLICANT
Michael Butterfield	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Robert E. Moores Burlington, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT