Federal Court Decisions

     IMM-1071-96

BETWEEN:

     DIMITAR LAZOV

     and

     DJOULIA MIHAYLO LAZOVA,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND

     IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

PINARD J:

     This is an application for judicial review of a decision of the Convention Refugee Determination Division ("the Board") dated February 28, 1996, wherein the Board determined the applicants, Mr. Lazov and his wife, not to be Convention refugees.

     The Board's decision is based quite simply on the lack of credibility of the applicants' evidence. The Board's negative credibility finding is not based on any internal inconsistencies, nor is it based on an assessment of the applicants' demeanour. The primary basis for the negative credibility assessment revolves around implausibilities in the main applicant's story. It appears that the Board disbelieved the latter's entire claim on the basis that the summons and medical certificate adduced were not credible and that it was implausible that he is wanted by the Bulgarian authorities. The Board was of the view that had Mr. Lazov been wanted by Bulgarian authorities, he would not have been able to leave Bulgaria without difficulty on three occasions, two of which were prior to his departure for Canada. It further accorded no probative value to letters from Mr. Lazov's mother-in-law which the Board deemed to be self-serving.

     A review of the transcript and the Tribunal Record indicates that the Board made several erroneous findings of fact which, in my view, render the inferences drawn by it unreasonable so as to warrant judicial intervention. First, the evidence was that Mr. Lazov, subsequent to his alleged detention and prior to his departure for Canada, left and returned to Bulgaria twice. There is no evidence to support the Board's finding that during this period, Mr. Lazov left and returned to Bulgaria three times. Secondly, the evidence regarding the summons indicated that the summons was for Mr. Lazov to appear at the 6th Police Station and not at court as found by the Board. Thirdly, the Board found that correspondence between Mr. Lazov and his mother-in-law had been interfered with by the authorities when the evidence in the letters was that Mr. Lazov's mother-in-law had sent him mail in the past that did not reach him.

     Although I would agree that the error as to how many times Mr. Lazov left and returned to Bulgaria is inconsequential, I am unable to accept that the errors with respect to the summons and the mail between Mr. Lazov and his mother-in-law are inconsequential. Both of these errors relate to the crucial findings of implausibility.

     The Board's mischaracterization of the summons as a court summons is at the heart of the Board's doubts regarding the summons' legitimacy and seriousness, which in turn led the Board to conclude that Mr. Lazov was not wanted by the authorities. This is apparent when one examines both the Board's decision and the transcript. In its decision, the Board states:

The testimony indicates that the claimant left and returned to Bulgaria on December 12, 1994, and left for Canada on December 15, 1994, despite a summons ordering him to appear before a court. The panel acknowledges that it has no expertise regarding the authenticity of such a document, but notes the absence of the receiver's name or signature on the summons, which appears to be part of the completion of the summons. This absence casts doubt, not only on the legitimacy but also on the serious nature of the summons.

     And, in the transcript, the Presiding Member states:

I think one of the concerns we had is summons [sic] is very important document and at least we know in most countries, including Canada, it is never put in a postbox or mail box because they have to have proof that the person had received it and if they didn't have a proof they will send it again because otherwise you could just say I never received a summons so that's why I didn't come to the court.

     Thus, it appears that it was the Board's characterization of the summons as a summons to Court, as opposed to a summons to appear at the police station, that led it to conclude that the summons was not legitimate. In short, the manner of service was not consistent with what the Board seems to have felt was standard for this type of document. Based on the erroneous assumption that the document in question was a summons to Court, the Board, apparently concluded that it was not complete - and therefore not legitimate - in the absence of the receiver's name or signature appearing on the "receipt" portion thereof. The Board also seems to have based its conclusion that the document in question was not a legitimate summons on its belief that summonses to Court, being very important documents, are never put in a postbox or mailbox.

     The Board's finding that the letters from Mr. Lazov's mother-in-law revealed that Mr. Lazov's mail had been interfered with was also not inconsequential because it was relied on by the Board to conclude that the letters themselves were not credible and that it was implausible that the Bulgarian authorities were pursuing Mr. Lazov. The Board states:

The panel also finds the claimant's mother-in-law's letters self-serving and hence gives no weight to their contents. The letters seems to indicate that the correspondence to the claimants had been intercepted and that the writer had to send the required documents through an agent. The panel does not accept that the claimant, for his limited role in Ilinden, would be pursued so vigorously by the authorities, that even the correspondence from his mother-in-law has been interfered with. If the authorities did indeed interrupt the mail, the panel sees no reason for the authorities to ask the claimant's mother-in-law about his whereabouts.

     In light of these serious and, in my view, not inconsequential flaws in the Board's decision, the application will be granted, the decision of the Board dated February 28, 1996 set aside, and a re-hearing by a differently constituted panel will be ordered.

     I agree with counsel for the parties that there is no matter for certification.

O T T A W A

April 11, 1997

    

     Judge