Date: 20030828
Docket: IMM-3743-02
Citation: 2003 FC 1004
Between:
STEFAN NECHIFOR
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Divisionof theImmigration and Refugee Board (the 'IRB') dated July 23, 2002, that the applicant is not a Convention refugee as defined in section 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The IRB found that the applicant was not credible and therefore that there were no grounds to allow his claim. In terms of credibility, this Court cannot substitute its findings for those of the IRB unless the applicant can demonstrate that the IRB's decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7). The IRB is a specialized tribunal empowered to assess the plausibility and credibility of testimony as long as the inferences drawn are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.) and the reasons are set out in clear and unmistakable terms (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[3] The applicant submits, first, that the IRB erred in finding it implausible that he notified the government of his change of name, since the authorities must be notified of such a change and in Romania, where military service is mandatory, the authorities include the territorial Commissariat. However, it was not patently unreasonable for the IRB to find it implausible that the applicant had notified the army of his name change given his desire to protect himself from the authorities.
[4] The applicant then alleges that the IRB erred in dismissing the letter provided by his parents on the basis that it had not been translated in its entirety. This letter is a relevant document. The IRB acted properly by referring to it in the reasons and explaining why it had not given it probative value (Cepeda-Gutierrez v. The Minister of Citizenship and Immigration (October 6, 1998), IMM-596-98). It was not unreasonable for the IRB to question its merit given that it had not been translated in full by a certified translator. The issue of the appropriate weight to be assigned to a document is a matter that falls within the IRB's discretion in assessing the evidence put before it.
[5] The applicant also submits that the IRB erred in not considering all of the documentary evidence submitted, that was inconsistent with the findings of the panel. However, it is settled law that the panel is presumed to have considered all of the evidence submitted to it (Randhawa v. The Minister of Citizenship and Immigration (April 30, 1999), IMM-1482-98 and Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 at page 318 (F.C.A.)). The IRB did not question the existence of trafficking in contraband cigarettes but rather based its findings on a lack of credibility with regard to other aspects of the applicant's testimony. Overall, the documentary evidence is not sufficient in itself to prove the claim and to compensate for the lack of credibility.
[6] The applicant further submits that the IRB made unreasonable inferences regarding his failure to produce medical certificates or a copy of the complaint he had filed with the police. It is settled law that a panel cannot make negative inferences from the fact that a party failed to produce any extrinsic document corroborating its allegations (Ahortor v. Canada (M.E.I.) (1993), 65 F.T.R. 137 and Miral v. The Minister of Citizenship and Immigration (February 12, 1999), IMM-3392-97). However, when an applicant's credibility is at issue, a lack of evidence corroborating his allegations is a relevant consideration (see Syed v. The Minister of Citizenship and Immigration (March 13, 1998), IMM-1613-97 and Herrera v. The Minister of Citizenship and Immigration (September 28, 1998), IMM-2737-97).
[7] The applicant alleges that the IRB erred in citing his failure to declare a trip to Greece at question 37 on the Personal Information Form. The IRB, however, based its finding of lack of credibility on the confusion of the applicant's explanations, not on the omission per se. The conclusion that the applicant was fabricating his answers was therefore not unreasonable.
[8] The applicant submits, finally, that the IRB erred in citing his failure to claim refugee status in France or the United States, and his delay in doing so in Canada. Such an omission is not necessarily decisive in terms of credibility. However, the IRB can consider this in conjunction with other aspects of the claim in determining whether an applicant really has a subjective fear of persecution (Huerta v. Canada (M.E.I.) (1993), 157 N.R. 225 (F.C.A.)), which it did in the present case.
[9] For the foregoing reasons, I am of the opinion that the IRB did not make any patently unreasonable errors in finding that the applicant is not a Convention refugee. The application for judicial review is therefore dismissed.
'Yvon Pinard'
JUDGE
OTTAWA, ONTARIO
August 28, 2003
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3743-02
STYLE OF CAUSE: STEFAN NECHIFOR v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 9, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: August 28, 2003
APPEARANCES:
Lia Cristinariu FOR THE APPLICANT
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lia Cristinariu FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario