Date: 19990317
Docket: IMM-1884-98
Ottawa, Ontario, March 17, 1999
Present: THE HONOURABLE MR. JUSTICE DENAULT
Between:
SVETLANA BAGDASSARIAN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
PIERRE DENAULT
Judge
Certified true translation
Peter Douglas
Date: 19990317
Docket: IMM-1884-98
Between:
SVETLANA BAGDASSARIAN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board determining that the applicant is not a Convention refugee.
Facts
[2] The applicant claimed refugee status in Canada, fearing persecution in Armenia, her country of former habitual residence,1 for reasons of political opinion allegedly imputed to her. The evidence before the panel shows that her father, who was a parking lot attendant, was killed when a tank knocked over the hut in which he was working. The circumstances of his death were reported in a newspaper article that was put in evidence. His death certificate was also filed in evidence.
[3] Unable to believe it was just an accident, considering the suspicious circumstances surrounding her father"s death (he allegedly disappeared on the eve of his death, and the tank driver named in the article was apparently far from the scene of the accident at the time of death), the applicant claims she asked the police to investigate, but they refused. She says she then turned to the Department of Defence, thinking she could get help there because of her father"s connections with the armed forces; her father is said to have voluntarily transported military cargo for the army to the Nagorny Karabakh region during the conflict with Azerbaijan in 1994.
[4] In her meeting with a Department official, she professes to have handed him several documents, including her father"s log books, in which he recorded information about the cargo he was transporting, as well as invoices and other documents the contents of which she did not know. The official allegedly kept the documents and told her to leave. Three days later, three men stopped her in the street and threatened to kill her unless she left the country.
[5] From all these events, the applicant infers that her father was murdered by soldiers after he discovered something incriminating about them. Believing she might implicate them, the soldiers presumedly threatened to kill her. She therefore left Armenia for Moscow in 1995 after obtaining a one-year work permit. She stayed there for two years before coming to Canada in June 1997.
Decision of the panel
[6] In a decision from the bench on the day of the hearing, the panel rejected the claim, finding the applicant"s two main arguments in support of her refugee claim implausible. In the first place, the panel found the applicant"s contention that her father had been murdered implausible. It found it implausible that her father, escorted by soldiers, had voluntarily transported military cargo for the army. The panel also noted that the death certificate and the newspaper article in no way proved the applicant"s allegations of murder.
[7] The panel was no more convinced that the applicant went to the Department to ask for help. It found it implausible that she should hand documents over to the Department without having analysed them and believing there was nothing incriminating in them. On this last point, the panel also noted the inconsistency and vagueness of her testimony.
Analysis
[8] The applicant argues that the decision should be quashed. As noted earlier, the panel delivered the reasons for its decision from the bench after the hearing, adding that written reasons would follow, subject to grammatical and stylistic corrections. In the applicant"s record, counsel for the applicant submitted to begin with that this procedure was not consistent with the requirements of subsection 69.1(11) of the Immigration Act .2 At the hearing, however, counsel abandoned that argument.
[9] Counsel for the applicant also argues that the panel was biassed, both by being aggressive in its questioning to try to find inconsistencies between the applicant"s testimony and PIF, and by deliberating for only twenty minutes or so before giving its decision, which would not have allowed for a very thorough review of the voluminous documentary evidence filed by the Claims Officer and the documentary evidence filed the same day by counsel for the applicant, thus leaving a doubt hanging over the fairness of the procedure.
[10] The proper test for reasonable apprehension of bias was laid down by Mr. Justice de Grandpré in Committee for Justice and Liberty v. National Energy Board3 and subsequently repeated in numerous judgments of the Supreme Court:
| . . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically"and having thought the matter through"conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly."4 |
[11] With respect to the first point raised, it should be pointed out that under subsection 67(2) of the Act, the Refugee Division has the power to examine any person on oath and to do any other thing necessary to provide a full and proper hearing. It obviously has some leeway to conduct its inquiry.
[12] In my view, this argument by counsel for the applicant is unsound. He dwelt on an example of what he called the "vehement attitude" of the panel members in question, but a careful examination of the transcript reveals nothing that would lead one to believe or suspect that there was a reasonable apprehension of bias.
[13] As for the brevity of the deliberation and the speed with which the panel gave its decision, these facts do not give rise to the belief that there is a reasonable apprehension of bias. As the respondent noted, due to the deficiencies in the applicant"s testimony, a thorough analysis of the documentary evidence was unnecessary to the decision given.
[14] Last, the applicant argues that the panel made a series of errors of fact and law. Specifically, she argues that the panel did not have regard to all the evidence. She maintains, for example, that the panel disregarded the evidence that showed that her father was from Nagorny Karabakh and was very active in the ARF opposition party, which supported the independence movement in that region. Considering that evidence, she claims it is not implausible that her father should have volunteered to transport cargo to support a cause close to his heart. In addition, Exhibit A-6 shows that the Armenian government unofficially supported the Armenian independence forces of Nagorny Karabakh during the hostilities, reinforcing the conclusion that it is entirely plausible that her father transported cargo there.
[15] Having regard to these facts, it might well have been reasonable to believe, as the applicant contends, that her father voluntarily transported military equipment to the Azerbaijani border with an army escort, but the panel found that contention implausible. However, it is not for this Court, on an application for judicial review, to substitute its opinion for the panel"s. In a case such as this, the Court has to ask whether it was unreasonable to find that fact implausible. In the case at bar, there is no choice but to hold that it was not unreasonable for the panel to find that a volunteer could not transport military equipment escorted by the army.
[16] The applicant also claims that the panel again disregarded the evidence when it found her father"s murder implausible. She says it did not consider the unusual circumstances surrounding his death as well as his involvement in a political party that was declared illegal. Once again, there is nothing to suggest that the panel disregarded that evidence. As a matter of fact, the documents the applicant filed"the newspaper article and the death certificate"tend to corroborate the panel"s finding that the father was apparently the victim of an accident. The panel quite simply did not draw the conclusions the applicant had hoped from that event.
[17] For these reasons, the application for judicial review must be dismissed. There is no serious question of general importance to certify in the case at bar.
PIERRE DENAULT
Judge
Ottawa, Ontario
March 17, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-1884-98
STYLE OF CAUSE: SVETLANA BAGDASSARIAN v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: 12-MAR-1999
REASONS FOR ORDER OF DENAULT J.
DATED: 17-MAR-1999
APPEARANCES:
JACQUES BEAUCHEMIN
FOR THE APPLICANT
MARIE-NICOLE MOREAU
FOR THE RESPONDENT
SOLICITORS OF RECORD:
JACQUES BEAUCHEMIN
FOR THE APPLICANT
MARIE-NICOLE MOREAU
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 There was a debate before the panel on the applicant"s citizenship. Born in Azerbaijan in 1960, of Armenian nationality, the applicant emigrated with her family to Armenia in 1976. As the Transcaucasian region was then under the USSR"s control, the applicant obviously had Soviet citizenship. However, after the break-up of the USSR and Armenia"s independence, it is not clear whether she has Armenian citizenship. The Armenian citizenship law was proclaimed in 1995, after the applicant had left for Moscow. Because the law does not mention its date of coming into force, the panel accepted that the applicant did not have Armenian citizenship, but that Armenia was her country of former habitual residence.
3 [1978] 1 S.C.R. 369. The Supreme Court repeated the test on numerous occasions: see, for example, Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267; and R. v. S.(R.D.), [1997] 3 S.C.R. 484.