Date:
20070828
Docket: IMM-445-07
Citation:
2007 FC 854
Montréal, Quebec, the 28th day of August 2007
Present:
the Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
AIDA
ASLANYAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) from a decision by
the Refugee Protection Division (the panel) on January 4, 2007 denying the
applicant’s application for refugee status, holding that the applicant was
neither a Convention refugee nor a person in need of protection. The
application for judicial review was allowed on April 27, 2007.
RELEVANT FACTS
[2]
The
applicant is a citizen of Armenia. In her capacity as a
psychologist she was a member of a medical commission which was biannually
responsible for the medical evaluation of military recruits. For the rest of
the year, she was a personnel director at an aquatic park in Yerevan.
[3]
In March
2005 the applicant said that, at an individual’s request, she met with a
certain Major Rustamyan, who asked her to sign a medical certificate indicating
that his son was suffering from mental disability and so should be exempt from
military service.
[4]
Following
the applicant’s refusal to accede to this request the applicant said she
received telephone threats in August 2005 and filed a complaint with the
police, who she said refused to intervene.
[5]
On September 8, 2005 the applicant said she was
summoned to the prosecutor’s office in the presence of Major Rustamyan, who
again demanded that she sign the medical certificate required for his son,
which she once again refused to do.
[6]
The
applicant said she then sought the advice of the chair of the medical
commission and its director, before resigning in spring 2006 when they refused
to help her.
[7]
Additionally,
during her work with the aquatic park the applicant said she was approached by
an individual who asked her to hire someone, which she refused to do on the
ground that the individual was not fit for work. On August 10, 2005 she said an
individual again approached her at her residence asking her to hire the person.
Subsequently, two individuals came into her office to get a record of employment.
She did not think it advisable to make a complaint to the police.
[8]
In
response to her son’s invitation to come and visit him, the applicant arrived
in Canada on October 12, 2005 with a Canadian visa and as
of that date began proceedings to obtain refugee status. To this end, she
alleged she feared being persecuted in her country because of her membership in
a particular social group and claimed the status of a person in need of
protection.
IMPUGNED DECISION
[9]
On January
4, 2007 the panel decided to deny the protection application on the ground that
it attached no credibility to the applicant’s story. The panel said it needed
further documentary evidence to support her application, namely a copy of the
complaint filed with the Armenian authorities, proof of the existence of Major
Rustamyan, proof of her involvement in and resignation from the military
commission, and her air ticket.
[10]
The panel
concluded that the applicant [TRANSLATION] “did not take reasonable steps to
obtain these documents which could have proven the existence of her persecutor
and the authenticity of her employment with the military recruits commission,
so her credibility is vitiated”. It also added that it did not believe she was
likely to be threatened since [TRANSLATION] “her assistance was not essential
to the young man’s exemption from service”.
[11]
To justify
its decision, the panel relied on subsection 100(4) of the IRPA and RPD Rule 7, which read as follows:
|
100(4)
The burden of proving that a claim is eligible to be referred to the Refugee
Protection Division rests on the claimant, who must answer truthfully all
questions put to them. If the claim is referred, the claimant must produce
all documents and information as required by the rules of the Board.
|
100(4)
La preuve de la recevabilité incombe au demandeur, qui doit répondre
véridiquement aux questions qui lui sont posées et fournir à la section, si
le cas lui est déféré, les renseignements et documents prévus par les règles
de la Commission.
|
|
7.
The claimant must provide acceptable documents establishing identity and
other elements of the claim. A claimant who does not provide acceptable
documents must explain why they were not provided and what steps were taken
to obtain them.
|
7. Le demandeur d'asile
transmet à la Section des documents acceptables pour établir son identité et
les autres éléments de sa demande. S'il ne peut le faire, il en donne la
raison et indique quelles mesures il a prises pour s'en procurer.
|
PARTIES’ SUBMISSIONS
[12]
The
applicant’s principal argument was that in its decision the panel failed to
consider the explanations she gave at the hearing of her application. She
further objected that the panel created a legitimate expectation on her part by
suggesting that it would not only be considering all the evidence but would
also be verifying the identity of Major Rustamyan, in accordance with the
consent required by the panel and given by her. The applicant also objected to
the questions raised by the panel and regarding the possibility of sponsorship
by her son.
[13]
The
respondent, for his part, maintained primarily that due to the many weaknesses
in the applicant’s evidence the panel was justified in not believing her story
of persecution. Further, the respondent emphasized that procedural fairness was
observed since the doctrine of legitimate expectation did not apply in the case
at bar as the panel had made no promise or statement and not created the
slightest expectation regarding whether it would itself undertake to obtain
evidence of the existence of Major Rustamyan.
ISSUE
[14]
Did the
panel commit an unreasonable error in not accepting the applicant’s story?
STANDARD OF REVIEW
[15]
It has
been well settled by prior judgments of this Court that the standard of review
applicable to the conclusions of a panel is patent unreasonableness (Aguebor
v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), Thavarathinam
v. Canada (M.C.I.), 2003 FC 1469 (F.C.A.) recently applied in Saeed v. Canada
(M.C.I.), 2006 FC 1016; Ogiriki v. Canada (M.C.I.), 2006 FC 342; Mohammad
v. Canada (M.C.I.), 2006 FC 352).
[16]
Further,
the standard of review to be applied in assessing evidence accepted by a panel
is also that of patent unreasonableness (Kirac v. Canada (M.C.I.),
[2002] F.C.J. No. 476, at para. 10; Ganiyu-Giwa v. Canada (M.C.I.),
[1995] F.C.J. No. 506; Hassan v. Canada (M.E.I.), [1992] F.C.J. No. 946;
Singh v. Canada (M.C.I.) (1999), 173 F.T.R. 280).
[17]
Evaluations
of the evidence by tribunals are not subject to re-evaluation by the Court on
judicial review unless the evaluation was unreasonable (Chaudhry v. Canada
(M.C.I.), [1998] F.C.J. No. 160, at para. 3). Thus, unless there is a
capricious or perverse conclusion without regard for the evidence, the Court
must exercise great restraint since it is the panel’s function to assess an
applicant’s testimony and to determine his or her credibility. If the panel’s
conclusions are reasonable, it must be shown great deference, so that the Court
should refrain from intervening.
[18]
On the
other hand, if the Court were to find a breach of procedural fairness the
application for judicial review would be allowed, since it is well settled that
the applicable standard of review for questions of natural justice and
procedural fairness is that of correctness (Canadian Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539,
at para. 100).
[19]
Did the
panel make an unreasonable error, as alleged, because it attached no
credibility to the applicant’s story?
[20]
It is well
established in law that the burden of presenting sufficiently credible and
reliable evidence to establish the points in a claim rests with the applicant
and no one else (Soares v. Canada (M.C.I.), [2007] F.C.J. No. 254, at
para. 22).
[21]
The panel
enjoys much greater flexibility regarding the evidence it may consider, without
being bound by strict or technical rules of evidence: it may thus rely on any
evidence it considers credible and reliable (IRPA, paras. 173(c) and (d);
Soares, supra, at para. 23; Thanaratnam v. Canada (M.C.I.), 2004
FC 349, [2004] F.C.J. No. 395 (QL), at para. 7).
[22]
While the
panel may draw negative conclusions from the lack of evidence which it
considers necessary or essential in support of an application, it must still
bear in mind that its negative conclusions should not be unreasonable (Bilquees
v. Canada (M.C.I.), 2004 FC 157, [2004] F.C.J. No. 205 (T.D.) (QL), at para.
7; Aguebor, supra).
[23]
As regards
the applicant’s air ticket which was required by the panel, we should recall that
in Elazi v. Canada (M.C.I.), [2000] F.C.J. No. 212 (QL), at para. 17,
Nadon J. mentioned the importance of this type of
document :
[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.
[Emphasis
added.]
[24]
The Court
notes that the applicant obtained her visitor’s visa for Canada on September 19, 2005, when
an entry in her work book indicated that at her own request she ceased working
for the aquatic park on September
30, 2005. She
left for Canada on October 12, 2005 and did
not make her refugee status application until October 25, 2005, the eve of her departure by
air scheduled for October 26, 2005. For the panel on the basis of these facts
to also require proof of the applicant’s resignation from the military
commission with which she allegedly had a problem and as well to want to see
the applicant’s air ticket is not unreasonable. In the absence of such
evidence, it is not unreasonable for the panel to conclude that the applicant
initially had the intention of not returning to her country and not being
sponsored by her son.
[25]
As to the
applicant’s argument that the panel led her to have a legitimate expectation
that it would check the existence of Major Rustamyan, the hearing transcript
indicates the following:
[TRANSLATION]
So, madam, would you object to our
seeking to determine whether this colonel – this major – really exists?
. . . . .
So if need be, we will send a request to
that effect to your counsel. I have no further questions.
[26]
The words
[TRANSLATION] “if need be” used by the panel indicate that it did not intend to
make a request to the applicant’s counsel unless this was necessary. The panel
thus created no legitimate expectation that it would do any research in this
regard. Once again, the Court must point out that it is up to the applicant to
submit all the necessary evidence in support of his or her application, and not
for the panel to present such evidence or to add to that of the applicant. The
applicant could choose to add to her evidence or do nothing about it, and the
panel did not have to ask her or tell her what she should do.
[27]
Finally,
even if the RPD made some errors in giving
certain aspects of the evidence more importance than others, the Court can only
concur in and adopt the comments of Harrington J. in Miranda v. Canada
(M.C.I.), [2006] F.C.J. No. 813, at para. 13:
[13] . . . In the case at bar, the Court
must counterbalance the errors stated above with the decision of the RPD as a
whole. On the basis of the evidence submitted before this Court, it does not
seem patently unreasonable that the RPD
questioned the applicant’s credibility.
[28]
Accordingly,
the Court concludes that the RPD’s decision taken as a whole was not patently
unreasonable and the applicant is not justified in asking to have it quashed,
especially as the decision is based fundamentally on questions of credibility
which it was for the RPD to assess.
CERTIFICATION OF QUESTION
PROPOSED BY APPLICANT
[29]
The
applicant submitted the following question for certification:
[TRANSLATION]
Where the applicant is unable to obtain a
document or official certification from the authorities of the country against
which she is seeking protection and that document or certification is
considered useful or essential to establishing the validity of her application,
can the panel (IRB) unreasonably refuse or refrain from exercising the power
conferred on it by section 170(a) of the IRPA, especially when there are
reasons to believe that the document or certification could be sent to it by
the authorities of the country in question?
[30]
The
applicant submitted that as formulated the question is serious and of general
importance as required by section 74(d) of the IRPA. She further
submitted that there is no decision bearing directly on the interpretation of
section 170(a) of the IRPA or its application.
[31]
The
respondent of course objected both to the formulation of the question and the
necessity to certify a question. Nevertheless, to be on the safe side and only
in the event that the Court considered certifying a question to be justified,
the respondent suggested the following wording:
[TRANSLATION]
Can the discretionary power mentioned in paragraph
170(a) of the Immigration and Refugee Protection Act impose on
the panel (the IRB Refugee Protection Division) a duty to obtain a document or
official certification from authorities of the country against which the
applicant is seeking protection?
The applicant admitted that the rewording of the question
suggested by the respondent is more general and did not object to it provided
the words [TRANSLATION] “in certain special circumstances” were added after the
words [TRANSLATION] “duty to obtain”. Regardless of this argument as to
wording, and the fact that the Court still has the last word on the way a
question is formulated, it remains to be seen whether certification of a
question is justified in the case at bar.
[32]
Whether
reworded or not, the suggested question does not meet the criteria laid down by
the Federal Court of Appeal in Canada (M.C.I.) v. Liyanagamage, [1994] F.C.J.
No. 1637 (C.A.):
[4] In
order to be certified pursuant to subsection 83(1), a question must be one
which, in the opinion of the motions judge, transcends the interests of the
immediate parties to the litigation and contemplates issues of broad
significance or general application (see the useful analysis of the concept of “importance”
by Catzman J. in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57
O.R. (2d) 569 (Ont. H.C.)) but it must also be one that is determinative of the
appeal. The certification process contemplated by section 83 of the Immigration
Act is neither to be equated with the reference process established by
section 18.3 of the Federal Court Act, nor is it to be used as a tool to
obtain from the Court of Appeal declaratory judgments on fine questions which
need not be decided in order to dispose of a particular case.
[33]
As the
panel drew several conclusions regarding the applicant’s credibility, contrary
to several of her allegations, the only question suggested for certification,
whether reworded or not, applied only to one of these questions and conclusions
and could not in the circumstances be in any way determinative of the judicial
review sought.
[34]
Certification
of the question could at most serve to obtain a declaratory judgment on it from
the Court of Appeal, when it is not necessary to decide the question in order
to determine the outcome of this judicial review, bearing in mind several
negative inferences drawn by the panel regarding the credibility of the
applicant’s story.
[35]
This
reason alone justified dismissing the application to certify the question
suggested, but there is more.
[36]
It is well
established that a refugee status claimant has the burden of proof in showing
the validity of the allegations on which his or her claim is based. More
recently, the Court of Appeal recalled in Soares, supra, what it said in
Kante v. Canada (M.E.I.), [1994] F.C.J. No. 525 (QL):
[8] The law is clear that the burden of proof lies with the
Applicant i.e. he must satisfy the Refugee Division that his claim meets both
the subjective and objective tests which are required in order to have a well
founded fear of persecution. Consequently an Applicant must come to a hearing
with all of the evidence that he is able to offer and that he believes
necessary to prove his claim.
[37]
The
Federal Court has restated this principle several times, that it is for the
applicant and only the applicant to produce all the evidence needed in support
of his or her application. This duty imposed on an applicant is moreover
codified in the wording of section 7 of the Refugee Protection Division
Rules (RPDR) and section 106 of the Act.
[38]
Further,
it is clear that the power conferred on the panel by paragraph 170(a) of
the Act is optional, not compulsory.
[39]
The
question the application is seeking to certify attempts to shift onto the panel
a duty or responsibility which both the Act and Rules, and the principles laid
down by appellate courts, have consistently imposed on the applicant. The Court
cannot certify the question without being in conflict with the Act, the Rules
and the judgments of the Court of Appeal, which it is not prepared to do,
especially as section 170(a) of the Act, to which the proposed question
refers, clearly mentions an optional power which the applicant is seeking by
her question to make compulsory.
[40]
For these
reasons, certification of the suggested question is denied.
JUDGMENT
THE COURT for these reasons:
1.
dismisses
the application for judicial review;
2.
denies
certification of the suggested question.
“Maurice E.
Lagacé”
Certified
true translation
Brian
McCordick, Translator
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