Date: 20051220
Docket: IMM-182-05
Citation: 2005 FC 1655
BETWEEN:
HANNA KAMIAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated December 16, 2004, wherein the Board found that the applicant is not a Convention refugee or "a person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Hanna Kamiak ("the applicant") is a citizen of Belarus who alleges a well-founded fear of persecution by reason of her membership in a particular social group, i.e. abused women.
[3] The Board based its decision on a negative credibility finding. In questions of credibility, this Court cannot substitute its opinion for that of the Board unless the applicant can demonstrate that the Board erred in law, or that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard to the material before it (subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7). Furthermore, the Board's decision will only be disturbed if it is sufficiently unreasonable to attract this Court's intervention. It has been established that the Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[4] The applicant first submits that the Board erred by refusing to alter the order of questioning so as to allow the applicant's counsel to question first, an alteration which was required because of the applicant's depressed state, and that this decision coloured the rest of the hearing.
[5] However, there is no evidence whatsoever that supports the applicant's assertion that because the Refugee Protection Officer questioned her first, she was in fact denied procedural fairness.
[6] The Board may alter the order of questioning if the Board feels that there are exceptional circumstances justifying a variation in the standard order (Refugee Protection Division Guideline 7, "Concerning Preparation and Conduct of a Hearing at the Refugee Protection Division", section 3.2, paragraph 23).
[7] In my opinion, it is not unreasonable that the Board did not find that the applicant's depression amounted to such exceptional circumstances, as there was no evidence that the depression would have any effect on the applicant's ability to present her testimony.
[8] The applicant futher submits that the Board did not believe that the medical report could have been generated for more than one purpose, and that this amounted to a conclusion without any valid reasoning or support.
[9] However, this was not the conclusion of the Board. The Board in fact used the testimony of the applicant with regard to the medical report to assist in its determination of credibility. The Board found that the applicant's testimony on this matter was not given in a straightforward manner, was not spontaneous and lacked consistency.
[10] In my opinion, it was not unreasonable of the Board to find the applicant's inconsistent testimony with regard to the purpose of the medical report to impact on the determination of credibility.
[11] The applicant also submits that the Board found that the documents should have borne "seal stamped" rather than seals which were ink jet printed without providing any valid reasoning or other authority for such finding.
[12] The forensic examination concluded that the seals on the documents were "ink jet printed" and the applicant asserted that they were stamped. Clearly the applicant was in error.
[13] In my opinion, the Board was not in error in concluding that the seals should have been stamped, as opposed to ink jet printed, as the purpose of a seal is to prove the authenticity of a document. In the Board's opinion, the location of the stamp, the purpose of stamped seals, and the testimony of the applicant that the seals were stamped all pointed to the conclusion that the documents should have been seal stamped. Upon receiving the evidence from forensics that the seals were ink jet printed, and taking the applicant's inconsistent testimony into consideration, the Board made the determination that the medical and police reports were, on a balance of probabilities, not credible or trustworthy, and therefore, decided not to give weight to these documents.
[14] The onus was upon the applicant to provide credible or trustworthy evidence to corroborate her allegations. The Board committed no patently unreasonable error in finding that the applicant, in light of the above, did not discharge this onus.
[15] Finally, the Board found that re-availment and delay were factors that further reinforced its finding that the applicant lacked subjective fear. The applicant submits that these specific findings were not borne out by the facts. Upon reviewing the evidence, I agree.
[16] However, the Board's findings on delay and re-availment were both subsidiary findings which supported the Board's main conclusion, that the applicant was not credible because of the dubious authenticity of her documentation and her inconsistent testimony.
[17] Therefore, although I find that the Board mis-stated facts and made erroneous findings of fact with regard to delay and re-availment, I find that the Board's determination that the applicant is not a Convention refugee should not be disturbed.
[18] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
December 20, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-182-05
STYLE OF CAUSE: HANNA KAMIAK v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 9, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: December 20, 2005
APPEARANCES:
Mr. Salvatore Campese FOR THE APPLICANT
Ms. Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Salvatore Campese FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada