Date: 19990708
Docket: IMM-2049-98
OTTAWA, Ontario, the 8th day of July 1999
PRESENT: The Honourable Mr. Justice Pinard
Between:
VASSILI IOURIEV ARKHANGUELSKI
Applicant
- and -
THE MINISTER
Respondent
ORDER
The application for judicial review of the decision dated April 1, 1998, by the Convention Refugee Determination Division, which determined that Vassili Iouriev Arkhanguelski is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
M. Iveson
Date: 19990708
Docket: IMM-2049-98
Between:
VASSILI IOURIEV ARKHANGUELSKI
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision dated April 1, 1998, by the Convention Refugee Determination Division, which determined that the applicant is not a Convention refugee and which also found that there was no credible basis for the claim pursuant to subsection 69.1(9.1) of the Immigration Act. The applicant is a citizen of Kazakhstan who alleges a well-founded fear of persecution for reasons of Russian nationality and membership in a particular social group, namely homosexuals.
[2] Because of inconsistencies in the applicant"s testimony, omissions in his Personal Information Form (PIF) and discrepancies between his claims and the documentary evidence on the record, the Refugee Division found the applicant was not credible, was not a Convention refugee and that there was no credible basis for his claim. It is important to list the following reasons why the panel did not believe the applicant:
| - it was noted in the copy of the medical certificate filed by the applicant that he was beaten by persons unknown, although he claims that he was beaten by Kazak recruits at the army recruiting centre; |
| - the panel only learned he was claiming refugee status mainly because of his homosexuality when the addendum to his PIF was filed, as this ground was not explicitly raised either in his PIF or during his examination at the point of entry; |
| - he was not in hiding between October 1994 and January 1996 when he left for Canada; in fact, he continued to work until August 1995; |
| - he did not file any evidence on the issue of his cousin"s murder; |
| - the documentary evidence did not include references to violent acts by nationalist groups against Russian-speaking people in Kazakhstan; |
| - the documentary evidence with respect to the criminalization of homosexuality is unclear and the panel accordingly concluded that in light of amendments to the legislation, the applicant no longer has reason to fear ill treatment because of his homosexuality. |
[3] It is well established that in the absence of clear proof that a relevant and significant piece of evidence was not considered by the Refugee Division, there is a presumption that the panel assessed all of the evidence before it (see Hassan v. M.E.I. (1993), 147 N.R. 317). In addition, it is also generally open to the Refugee Division to give more weight to the documentary evidence filed by the refugee hearing officer than to a claimant"s testimony (see M.E.I. v. Zhou (July 18, 1994), A-492-91 (F.C.A.). In the instant case, after hearing counsel for the parties and reviewing the evidence, this degree of disregard of the evidence by the panel was not established and its decision appears to be well-founded both on the applicant"s testimony and the documentary evidence. As this is fundamentally a matter of the assessment of evidence, the Court may not substitute its decision for that of the Refugee Division, which is a specialized tribunal, when, as in the instant case, the applicant failed to prove that its decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d ) of the Federal Court Act). Under the circumstances, the inferences drawn by the panel also appear entirely reasonable (see Aguebor v. M.E.I. (1993), 160 N.R. 315).
[4] The application for judicial review is accordingly dismissed.
YVON PINARD
JUDGE
OTTAWA, Ontario
July 8, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2049-98
STYLE OF CAUSE: Vassili Iouriev Arkhanguelski - and -
The Minister
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 2, 1999
REASONS FOR ORDER OF PINARD J.
DATED JULY 8, 1999
APPEARANCES:
Michel LeBrun FOR THE APPLICANT
Sherry Rafai-Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel LeBrun
Montréal, Quebec
FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada