Date: 20070615
Docket: IMM-6105-06
Citation: 2007 FC 631
Ottawa, Ontario, June 15,
2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
NINA
GAKINULYAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division (the Board), dated October 31, 2006, finding that
the applicant was neither a “Convention refugee” nor a “person in need of
protection.”
ISSUE
[2]
Was
the decision of the Board patently unreasonable?
[3]
For
the reasons that follow, the answer to this question is negative. Consequently,
the application for judicial review shall be dismissed.
BACKGROUND
[4]
The
applicant is a Russian citizen of Armenian nationality, born in Gyorgyes, on June
1, 1933.
[5]
She
arrived in Canada on November
7, 2005 not intending to apply for refugee status. However, near the expiration
of her visitor’s visa, she learned on February 27, 2006 that she was sought by
the State General Prosecutor (SGP) of Russia on allegations that she
had harboured Chechen terrorists in her apartment, which was seized by the SGP.
[6]
The
applicant alleges that prior to coming to Canada to visit her
daughter and grandson, she was denounced to the authorities by her neighbours
for receiving Chechens in her home. As an Armenian, she was a victim of verbal
and other abuse by skinheads and the SGP. As a result of this, the applicant
feared persecution upon her imminent return to Russia and decided
to apply for refugee protection in Canada.
[7]
The
Board was simply unimpressed with the applicant’s incredible story and wasted
no time in dismissing her application, from which the applicant brings the
present application for judicial review.
DECISION UNDER REVIEW
[8]
The
decision is relatively brief, noting that the applicant waited four months
before claiming refugee protection. The Board found that her explanations
during the hearing were unsatisfactory, since the applicant said that she did
not apply for refugee protection initially because she thought the situation
would change and that she could go back home. This is hardly the behaviour of
someone having a well founded fear of persecution.
[9]
Moreover,
the Board was concerned about the contradictions between the applicant’s
testimony and the responses to questions 19 (should be 9(a)) and 31 of her Personal
Information Form (PIF) and the answers provided to questions 19 and 20 during
her interview with an Immigration Officer. The Board notes at page 2 as
follows:
At question 19 of her interview, the
claimant answered “no” when asked if she was wanted by the police/military. She
also answered “no” at question 20 when asked if she had been detained. Yet, in
her PIF, at question 31, she mentioned that she was detained and that she was
being sought by the police.
Asked to explain, the claimant answered
that she was detained by the Prosecutor’s office, not the police. However, in
her PIF she does mention that she was detained by the police. As for not
mentioning that she was sought by the police, she claims that she did not know
at the time, she found out only later on, which is possible.
However, it rejects the latter and considers
that this is an important omission which greatly damaged the claimant’s
credibility. No one who has been detained overnight and questioned would forget
the experience.
[10]
Finally,
the Board found that the applicant had an internal flight alternative in Savatov,
for instance, where she lived and worked throughout her distinguished
professional career. However, the applicant said she preferred to remain in her
family home in Gheorghievsk. The Board found that this behaviour was
inconsistent with that of someone who fears for her life, especially since she
alleges that her problems began when she rented a room in her family home to a
woman who was married to a Chechen.
RELEVANT LEGISLATION
[11]
The
guidelines for the submission of affidavits are also outlined in Rules 80 and
81 of the Federal Courts Rules (the Rules), SOR/98/106:
|
Affidavit
Evidence and Examinations
Affidavits
Form
of affidavits
80.
(1) Affidavits shall be drawn in the first person, in Form 80A.
[.
. .]
Exhibits
(3)
Where an affidavit refers to an exhibit, the exhibit shall be accurately
identified by an endorsement on the exhibit or on a certificate attached to
it, signed by the person before whom the affidavit is sworn.
Content
of affidavits
81.
(1) Affidavits shall be confined to facts within the personal knowledge of
the deponent, except on motions in which statements as to the deponent's
belief, with the grounds therefor, may be included.
Affidavits
on belief
(2)
Where an affidavit is made on belief, an adverse inference may be drawn from
the failure of a party to provide evidence of persons having personal
knowledge of material facts.
|
Preuve
par affidavit et interrogatoires
Affidavits
Forme
80.
(1) Les affidavits sont rédigés à la première personne et sont établis selon
la formule 80A.
Pièces
à l’appui de l’affidavit
(3)
Lorsqu’un affidavit fait mention d’une pièce, la désignation précise de
celle-ci est inscrite sur la pièce même ou sur un certificat joint à
celle-ci, suivie de la signature de la personne qui reçoit le serment.
Contenu
81.
(1) Les affidavits se limitent aux faits dont le déclarant a une connaissance
personnelle, sauf s’ils sont présentés à l’appui d’une requête, auquel cas
ils peuvent contenir des déclarations fondées sur ce que le déclarant croit
être les faits, avec motifs à l’appui.
Poids
de l’affidavit
(2)
Lorsqu’un affidavit contient des déclarations fondées sur ce que croit le
déclarant, le fait de ne pas offrir le témoignage de personnes ayant une
connaissance personnelle des faits substantiels peut donner lieu à des
conclusions défavorables.
|
[12]
The
Federal Court Immigration Rules (the Immigration Rules), SOR/93-22 set
out clearly the contents of an affidavit in the immigration context. The
relevant passages are found in paragraph 10(2)(d), as follows:
|
PERFECTING
APPLICATION
FOR LEAVE
10.
(1) The applicant shall perfect an application for leave by complying with
subrule (2)
[.
. .]
(2)
The applicant shall serve on every respondent who has filed and served a
notice of appearance, a record containing the following, on consecutively
numbered pages, and in the following order
[.
. .]
(d)
one or more supporting affidavits verifying the facts relied on by the
applicant in support of the application, [. . .]
|
MISE
EN ÉTAT DE LA DEMANDE
D’AUTORISATION
10.
(1) Le demandeur met sa demande d’autorisation en état en se conformant au
paragraphe (2) [. . .]
(2)
Le demandeur signifie à chacun des défendeurs qui a déposé et signifié un
avis de comparution un dossier composé des pièces suivantes, disposées dans
l’ordre suivant sur des pages numérotées consécutivement :
[.
. .]
d)
un ou plusieurs affidavits établissant les faits invoqués à l’appui de sa
demande,
[.
. .]
|
ANALYSIS
PRELIMINARY OBJECTIONS
Inadequate affidavit
[13]
At
the outset, the respondent objects to the applicant’s affidavit and submits
that it should be struck or given no weight as it does not comply with
paragraph 10(2)(d) of the Immigration Rules. The affidavit is not confined only
to the facts. Paragraphs 7 and 14 of the affidavit are not drafted in the first
person.
[14]
Moreover,
many of the paragraphs consist of conclusion and argument on the correctness of
the Board’s decision rather than on facts. In essence, the affidavit is the
applicant’s response to the Board’s decision. As the respondent points out,
this is amply demonstrated by the fact that the paragraphs contained in the
affidavit are reproduced in their entirety in the applicant’s Memorandum of Argument.
[15]
Although
it is true that some paragraphs of the affidavit constitutes polemical
arguments and conclusions in an effort to refute the different elements of the
Board’s decision, this is not a case where the Court should strike and give no
weight to the affidavit. In fact, there are only paragraphs 7 and 14 that are
not drafted in the first person. Paragraph 7 is an argument advanced by the
applicant that the Board did not consider the applicant’s explanation that she
had no ground to claim refugee status in Canada before
February 26, 2006. Paragraph 14 mentions paragraphs 3-6 of page 2 of the
Board’s decision. This is not a set of circumstances found in Bakary v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1111, [2006] F.C.J. No.
1418 (F.C.) (QL), where Justice Yvon Pinard concluded as follows at paragraph
5:
The respondent submits that paragraphs 8,
17, 48 and 51 of the applicant's affidavit on his application for leave consist
of conclusions and arguments as to the merits of the IRB's decision instead of
facts and, accordingly, these statements are inadmissible. I agree with the
respondent.
[16]
The
Court does not agree also with the respondent when it cites Metodieva v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 629 (F.C.A.) (QL) and argues
that the affidavit is inadequate and incomplete to such an extent that it amounts
to an absence of affidavit. This is not the case here, and consequently, the
affidavit will not be stricken from the record.
[17]
On
the substantive issue of this application, the Court is of the opinion that
based on the evidence before the Board, and having copiously reviewed the
transcript from the hearing, as well as the record before the Board, it believes
that it was reasonably open to the Board to reach the decision it did. This
case can be distinguished from R.K.L. v. Canada (Minister of
Immigration and Citizenship), 2003 FCT 116, [2003] F.C.J. No. 162
(F.C.T.D.) (QL) cited by the applicant because the context and the facts are
not the same (referred to by the applicant at the hearing as the Kaur case).
[18]
The
parties did not raise any questions for certification.
JUDGMENT
THIS COURT
ORDERS that:
- The application for
judicial review is dismissed.
- No question is
certified.
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