Toronto, Ontario, February 9, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Nikolay Vesselinov Stanchev, is a Bulgarian citizen of Roma ethnicity. The Applicant arrived in Canada through the United States. He entered the U.S with a valid U.S visa on May 23, 2005. He then arrived in Lacolle, Quebec via bus and taxi on June 6, 2002.
[2] He claims a well-founded fear of persecution by reason of his ethnicity. The Applicant claims he has been subjected to discrimination throughout his entire life due to his Roma ethnicity. This includes being called names and being harassed by his Bulgarian neighbours. He was also teased and beaten by Bulgarian children when he was a child. He alleges that he was assaulted and beaten numerous times by groups of racists or skinheads.
[3] On September 14, 2001, he alleges to have been beaten by the skinheads such that he required medical attention. He produced a medical report dated September 14, 2001 documenting the alleged attack.
[4] In March 2002, the police raided his house for stolen goods. He was taken to the police station and detained overnight. While detained, he was allegedly insulted and beaten in order to extract a confession for the robbery. He produced a medical certificate dated March 5, 2002. As a result of these incidents, he decided to flee Bulgaria.
[5] The Immigration and Refugee Board (the "Board") held two hearings before rendering a decision. After the conclusion of the first hearing, the Board verified certain documents submitted by the Applicant. With the Applicant's qualified consent, they were examined in Bulgaria and were found not to be genuine. At the second hearing, the Board gave the Applicant an opportunity to explain the lack of authenticity of the documents. The Board held these documents fatally undermined the credibility of the Applicant.
[6] The Applicant seeks judicial review of the decision raising 3 issues:
1. the credibility findings were patently unreasonable;
2. the documents were verified without sufficient protection for the Applicant; and
3. the failure of the Board to perform a separate s. 97 analysis.
Standard of Review
[7] There is no question that the standard of review for credibility findings is patent unreasonableness (see Aguebor v. Canada(Minister of Employment and Immigration) (1993), 160 N.R. 315).
Credibility Findings
[8] The Applicant alleges that the Board failed to provide clear reasons for its concerns regarding the Applicant's credibility. The Applicant submits that due to the Board's finding that the Applicant was "generally credible" at the conclusion of the first hearing, it was unreasonable to find the Applicant lost all credibility after concluding the Applicant's documents were false.
[9] The Board had concerns regarding his credibility as it decided to investigate whether the Applicant's documents were genuine. The Board explained why the false documents fatally undermined the Applicant's credibility. As it stated at page 4 of its decision:
The fact that these crucial documents are false undermines fatally the credibility of the claimant.
[10] Given that the false documents related to the key contention in the Applicant's case, it was not patently unreasonable that the Board found they undermined the balance of the Applicant's credibility.
Document Verification
[11] The Applicant submits that it gave a qualified consent to the documents being verified in that the Applicant's name was not to be disclosed, however his identity was revealed. The Applicant submits that his concerns resulting from that disclosure should have been addressed in the Board's decision.
[12] The Applicant is concerned about complicity between the medical professionals and the police. His concern is that the medical professionals would falsify the document verification in order to protect the police. The Applicant seeks to rely on the IRB Research Directorate's information notice, found at page 187 of the Applicant's Application Record, that states:
Two cases of police violence against Roma have been decided by the ECHR [European Court of Human Rights] ... both raising important factual and legal issues related to police brutality. These include the reluctance of the prosecutor's offices to initiate criminal proceedings in cases of police abuse against Roma or to indict police officers who are responsible for human rights violations against Roma; the complicity of medical professionals in concealing the crimes of law enforcement officers; and the lack of impartiality of the prosecution as an agency for imposing detention and prosecuting crime (ibid., 100).
[13] While the IRB report does indeed suggest that medical personnel have acted in complicity with police, there is no evidence that occurred in this case. The Applicant at the second hearing had the opportunity to establish that fact but failed to do so. The Board cannot act on speculation. It needs evidence on which to act; there was none in this case.
[14] Accordingly, the Board did not err in its determination regarding the verification of the documents.
S. 97 Analysis
[15] The Applicant argued the member should have performed a separate s. 97 analysis to determine if the Applicant faced a risk to life or of cruel and unusual treatment or punishment. The failure to do this is a reviewable error. The Applicant submits that if there is evidence that could establish that a claimant is a person in need of protection, the panel must undertake a separate s. 97 analysis.
[16] The Applicant submits that as the Board accepted the Applicant was Roma, found his testimony was generally credible, and the documentary evidence shows the risk that Romas face in Bulgaria, that information necessitated a s. 97 analysis.
[17] Although it may be good practice to perform a separate s. 97 analysis, it is not always required. This is because the analysis can be implicit in the decision. Section 97 is concerned with whether the Applicant faces a risk of torture or cruel punishment if returned to Bulgaria.
[18] In Yorulmaz v. Canada (Minister of Citizenship and Immigration), 2004 FC 128 it was held that as the Board's negative credibility finding was substantiated by the facts, a failure to perform a separate s. 97 analysis was not relevant as there was a lack of evidence showing it was necessary.
[19] In Bouaouni v. Canada(Minister of Citizenship and Immigration), 2003 FC 1211, Blanchard J. held at paragraph 42 the following:
In the present case the Board found important omissions, contradictions and implausibilities in the applicant's evidence, which led it to conclude that the applicant's story was not credible. I have already determined that these findings were open to the Board. The Board specifically disbelieved the applicant's allegation of arrest, detention and torture by the police forces and provided detailed reasons for its findings. Further, the Board showed an appreciation of the country conditions in Tunisia and specifically considered, in its reasons, the country documentation before it. There is no evidence to suggest that the Board failed to consider evidence before it or that it misapprehended any aspect of the evidence. Apart from the evidence that the Board found to be not credible, there was no other evidence before the board in the country documentation, or elsewhere, that could have led the Board to conclude that the applicant was a person in need of protection. I find that the Board did err in failing to specifically analyse the s. 97 claim. However, in the circumstances of this case and in the exercise of my discretion, I also find that the error is not material to the result. I find that the Board's conclusion, that the applicant was not a "person in need of protection" under paragraphs 97(1)(a) and (b) of the Act, was open to it on the evidence. (emphasis added)
[20] Given the Board's negative credibility finding and its corresponding finding that the balance of the Applicant's allegations were not credible, there was no evidence that the Applicant had suffered from torture or abuse in Bulgaria.
[21] Although the documentary evidence indicates the poor treatment of the Roma people, the Board found there is no evidence that all Romas suffer from harassment. Given this crucial finding, there was no reviewable error in the Board's failure to do a separate s. 97 analysis.
[22] For the preceding reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that this Application be dismissed.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1628-05
STYLE OF CAUSE: nikolay vesselinov stanchev
Applicant
and
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 7, 2006
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
APPEARANCES BY:
Robert Moores FOR THE APPLICANT
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Robert Moores
Burlington, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT