IMM-2563-96
OTTAWA, ONTARIO, the 17th day of October, 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN
KONDRATIEV IGOR
KONDRATIEV VICTORIA
KONDRATIEV LYUDMILA,
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
O R D E R
The application for judicial review of the decision rendered on July 5, 1996 by the Refugee Division, ruling that the applicants are not Convention refugees, is dismissed.
| Yvon Pinard |
| J. |
Certified true translation
Christiane Delon
IMM-2563-96
BETWEEN
KONDRATIEV IGOR
KONDRATIEV VICTORIA
KONDRATIEV LYUDMILA,
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER
PINARD J.
This is an application for judicial review of a decision rendered on July 5, 1996 by the Refugee Division, which ruled that the applicants, Igor Kondratiev, his wife Lyudmila Kondratiev and their daughter Victoria Kondratiev, are not Convention refugees. The applicants are nationals of Israel who base their claim on grounds of religion, nationality and membership in a particular social group.
The Division"s decision is based purely and simply on the male applicant"s lack of credibility:
| [Translation] After a careful review of all the evidence, bearing in mind the definition of Convention refugee, we conclude that the claimants are not credible, because their testimony appeared to us to be contradictory and implausible in regard to some major aspects of their claims. Furthermore, when we confronted the claimants with these contradictions and implausibilities, the explanations he provided could not be considered satisfactory. |
The Refugee Division then describes which aspects of the applicants" testimony it did not accept, such as Mrs. Kondratiev"s allegations of sexual harassment and Mr. Kondratiev"s army call-ups. It also pointed out that the fact that the claimants had spent ten months in Germany without claiming refugee status there was inconsistent with a genuine subjective fear of persecution.
The tribunal then concluded:
| [Translation] Because the claimants" story is not credible, the tribunal finds that they have not discharged the onus of proving that there is a well-founded fear of persecution in Israel by reason of any of the grounds in the definition of Convention refugee. |
In Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, at page 316, Décary J.A. described the applicable test for judicial restraint in regard to a finding of credibility by such a tribunal:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
In light of the evidence, I am of the opinion that the applicants have not discharged the burden of demonstrating that the inferences drawn by the tribunal were unreasonable. On the contrary, the tribunal could reasonably reach the conclusion that it did, since its perception that the applicants were not credible amounts in fact to the conclusion that there was no credible evidence that might justify the refugee claims in question. Let it suffice, on this latter point, to recall what Mr. Justice MacGuigan stated in Sheikh v. Canada (M.E.I.) [1990] 3 F.C. 238, at page 244:
| The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant"s claim can be directly deduced), a tribunal"s perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. |
Incidentally, on the issue of compulsory military service in Israel, it is worth emphasizing what my colleague, Tremblay-Lamer J., stated in Lishchenko v. M.E.I. (January 9, 1996), IMM-803-95, at paragraph 9:
| As for the military service, the Court concluded in Talman v. Canada (M.E.I.) [(1995), 93 F.T.R. 266; see also Zolfagharkhani v. M.E.I. (1993), 155 N.R. 311] that the punishment for failing to complete compulsory military service in Israel did not constitute persecution, but rather prosecution for failing to comply with a law of general application. |
For these reasons, the application for judicial review is dismissed.
OTTAWA, Ontario
October 17, 1997
| Yvon Pinard |
| J. |
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. IMM-2563-96 |
| STYLE: KONDRATIEV IGOR ET AL. v. |
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 8, 1997 |
REASONS FOR ORDER OF PINARD J.
| DATED: October 17, 1997 |
APPEARANCES:
| MICHEL LE BRUN FOR THE APPLICANTS |
| JACINTHE LANDRY FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| MICHEL LE BRUN FOR THE APPLICANTS |
MONTRÉAL, QUEBEC
| GEORGE THOMSON FOR THE RESPONDENT |
DEPUTY ATTORNEY GENERAL
OF CANADA