Ottawa, Ontario, June 15, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of the Refugee Protection Division (the Board), dated October 31, 2006, finding that the applicant was neither a “Convention refugee” nor a “person in need of protection.”
ISSUE
[2] Was the decision of the Board patently unreasonable?
[3] For the reasons that follow, the answer to this question is negative. Consequently, the application for judicial review shall be dismissed.
BACKGROUND
[4] The applicant is a Russian citizen of Armenian nationality, born in Gyorgyes, on June 1, 1933.
[5] She arrived in Canada on November 7, 2005 not intending to apply for refugee status. However, near the expiration of her visitor’s visa, she learned on February 27, 2006 that she was sought by the State General Prosecutor (SGP) of Russia on allegations that she had harboured Chechen terrorists in her apartment, which was seized by the SGP.
[6] The applicant alleges that prior to coming to Canada to visit her daughter and grandson, she was denounced to the authorities by her neighbours for receiving Chechens in her home. As an Armenian, she was a victim of verbal and other abuse by skinheads and the SGP. As a result of this, the applicant feared persecution upon her imminent return to Russia and decided to apply for refugee protection in Canada.
[7] The Board was simply unimpressed with the applicant’s incredible story and wasted no time in dismissing her application, from which the applicant brings the present application for judicial review.
DECISION UNDER REVIEW
[8] The decision is relatively brief, noting that the applicant waited four months before claiming refugee protection. The Board found that her explanations during the hearing were unsatisfactory, since the applicant said that she did not apply for refugee protection initially because she thought the situation would change and that she could go back home. This is hardly the behaviour of someone having a well founded fear of persecution.
[9] Moreover, the Board was concerned about the contradictions between the applicant’s testimony and the responses to questions 19 (should be 9(a)) and 31 of her Personal Information Form (PIF) and the answers provided to questions 19 and 20 during her interview with an Immigration Officer. The Board notes at page 2 as follows:
At question 19 of her interview, the claimant answered “no” when asked if she was wanted by the police/military. She also answered “no” at question 20 when asked if she had been detained. Yet, in her PIF, at question 31, she mentioned that she was detained and that she was being sought by the police.
Asked to explain, the claimant answered that she was detained by the Prosecutor’s office, not the police. However, in her PIF she does mention that she was detained by the police. As for not mentioning that she was sought by the police, she claims that she did not know at the time, she found out only later on, which is possible.
However, it rejects the latter and considers that this is an important omission which greatly damaged the claimant’s credibility. No one who has been detained overnight and questioned would forget the experience.
[10] Finally, the Board found that the applicant had an internal flight alternative in Savatov, for instance, where she lived and worked throughout her distinguished professional career. However, the applicant said she preferred to remain in her family home in Gheorghievsk. The Board found that this behaviour was inconsistent with that of someone who fears for her life, especially since she alleges that her problems began when she rented a room in her family home to a woman who was married to a Chechen.
RELEVANT LEGISLATION
[11] The guidelines for the submission of affidavits are also outlined in Rules 80 and 81 of the Federal Courts Rules (the Rules), SOR/98/106:
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Affidavit Evidence and Examinations Affidavits Form of affidavits 80. (1) Affidavits shall be drawn in the first person, in Form 80A. [. . .] Exhibits (3) Where an affidavit refers to an exhibit, the exhibit shall be accurately identified by an endorsement on the exhibit or on a certificate attached to it, signed by the person before whom the affidavit is sworn.
Content of affidavits
81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included.
Affidavits on belief (2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts.
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Preuve par affidavit et interrogatoires Affidavits Forme 80. (1) Les affidavits sont rédigés à la première personne et sont établis selon la formule 80A. Pièces à l’appui de l’affidavit (3) Lorsqu’un affidavit fait mention d’une pièce, la désignation précise de celle-ci est inscrite sur la pièce même ou sur un certificat joint à celle-ci, suivie de la signature de la personne qui reçoit le serment.
Contenu 81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
Poids de l’affidavit (2) Lorsqu’un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables. |
[12] The Federal Court Immigration Rules (the Immigration Rules), SOR/93-22 set out clearly the contents of an affidavit in the immigration context. The relevant passages are found in paragraph 10(2)(d), as follows:
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PERFECTING APPLICATION FOR LEAVE 10. (1) The applicant shall perfect an application for leave by complying with subrule (2) [. . .] (2) The applicant shall serve on every respondent who has filed and served a notice of appearance, a record containing the following, on consecutively numbered pages, and in the following order
[. . .] (d) one or more supporting affidavits verifying the facts relied on by the applicant in support of the application, [. . .] |
MISE EN ÉTAT DE LA DEMANDE D’AUTORISATION 10. (1) Le demandeur met sa demande d’autorisation en état en se conformant au paragraphe (2) [. . .] (2) Le demandeur signifie à chacun des défendeurs qui a déposé et signifié un avis de comparution un dossier composé des pièces suivantes, disposées dans l’ordre suivant sur des pages numérotées consécutivement : [. . .] d) un ou plusieurs affidavits établissant les faits invoqués à l’appui de sa demande, [. . .] |
ANALYSIS
PRELIMINARY OBJECTIONS
Inadequate affidavit
[13] At the outset, the respondent objects to the applicant’s affidavit and submits that it should be struck or given no weight as it does not comply with paragraph 10(2)(d) of the Immigration Rules. The affidavit is not confined only to the facts. Paragraphs 7 and 14 of the affidavit are not drafted in the first person.
[14] Moreover, many of the paragraphs consist of conclusion and argument on the correctness of the Board’s decision rather than on facts. In essence, the affidavit is the applicant’s response to the Board’s decision. As the respondent points out, this is amply demonstrated by the fact that the paragraphs contained in the affidavit are reproduced in their entirety in the applicant’s Memorandum of Argument.
[15] Although it is true that some paragraphs of the affidavit constitutes polemical arguments and conclusions in an effort to refute the different elements of the Board’s decision, this is not a case where the Court should strike and give no weight to the affidavit. In fact, there are only paragraphs 7 and 14 that are not drafted in the first person. Paragraph 7 is an argument advanced by the applicant that the Board did not consider the applicant’s explanation that she had no ground to claim refugee status in Canada before February 26, 2006. Paragraph 14 mentions paragraphs 3-6 of page 2 of the Board’s decision. This is not a set of circumstances found in Bakary v. Canada (Minister of Citizenship and Immigration), 2006 FC 1111, [2006] F.C.J. No. 1418 (F.C.) (QL), where Justice Yvon Pinard concluded as follows at paragraph 5:
The respondent submits that paragraphs 8, 17, 48 and 51 of the applicant's affidavit on his application for leave consist of conclusions and arguments as to the merits of the IRB's decision instead of facts and, accordingly, these statements are inadmissible. I agree with the respondent.
[16] The Court does not agree also with the respondent when it cites Metodieva v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 629 (F.C.A.) (QL) and argues that the affidavit is inadequate and incomplete to such an extent that it amounts to an absence of affidavit. This is not the case here, and consequently, the affidavit will not be stricken from the record.
[17] On the substantive issue of this application, the Court is of the opinion that based on the evidence before the Board, and having copiously reviewed the transcript from the hearing, as well as the record before the Board, it believes that it was reasonably open to the Board to reach the decision it did. This case can be distinguished from R.K.L. v. Canada (Minister of Immigration and Citizenship), 2003 FCT 116, [2003] F.C.J. No. 162 (F.C.T.D.) (QL) cited by the applicant because the context and the facts are not the same (referred to by the applicant at the hearing as the Kaur case).
[18] The parties did not raise any questions for certification.
JUDGMENT
THIS COURT ORDERS that:
- The application for judicial review is dismissed.
- No question is certified.
« Michel Beaudry »
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6105-06
STYLE OF CAUSE: NINA GAKINULYAN and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 13, 2007
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: June 15, 2007
APPEARANCES:
Alain Joffe FOR APPLICANT
Evan Liosis FOR RESPONDENT
SOLICITORS OF RECORD:
Alain Joffe FOR APPLICANT
Montreal, Quebec
John Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec