Date: 19990628
Docket: IMM-2459-98
BETWEEN:
ARTYOM SANTROSYAN
ARMINE HARUTYUNYAN
Applicants
- and -
THE MINISTER
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a Convention Refugee Determination Division decision that the applicants are not Convention refugees; the decision is dated April 28, 1998, and the applicants received the reasons for decision on June 15, 1998.
[2] I am of the view that based on the evidence in the record, it was reasonable for the panel to find as it did.
[3] The decision was based on the evidence in both applicants" testimony and the documentary evidence.
[4] The claims are chiefly based on the fact that the applicant was allegedly called up for military service.
[5] Based on a certain amount of evidence in the record, the panel did not believe that the applicant was wanted by the military authorities.
[6] The applicants, filing documentary evidence on the international condemnation of the Armenian aggression and of the Armenian authorities" treatment of prisoners of war, argued that they had a legitimate conscientious objection.
[7] I must dismiss this conscientious objection argument considering that after reviewing the evidence before it, the panel found that the applicants were more afraid of war and dying. Thus it was not unreasonable under the circumstances for the panel to find that this ground did not meet the Convention requirements, particularly the provisions of paragraphs 167 to 174 of the Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR, Geneva, 1992).
[8] Counsel for the respondent suggested that the Court must not intervene on a credibility issue unless the panel"s finding is unreasonable. She added that even when the panel"s findings are weak, the Court is not to intervene unless, once again, the findings the panel made are unreasonable.
| [9] On the issue of credibility, in Sylla v. M.E.I.,1 Mr. Justice Marceau said: |
| Despite the efforts of counsel for the appellant, we are not persuaded that our intervention in this case could be justified. |
| It is clear from reading the decision as a whole that the members of the tribunal did not believe the story on which the claimant based his claim. The points they advanced to justify their incredulity are not all of equal weight, and some even appear weak, but nonetheless the decision as a whole establishes, in our eyes, that their reaction was reasonable. |
[10] In Salvador Garcia,2 Mr. Justice Pinard said:
| . . . it being well known that aversion to military service or fear of combat is not in itself sufficient to establish a well-founded fear of persecution within the meaning of the Convention. |
[11] On the test that guides this Court on intervening to overturn a panel"s decision, in Randhawa v. M.C.I. ,3 Mr. Justice Joyal said:
| Contradictions or discrepancies in the evidence of a refugee claim are an accepted basis for a finding of a lack of credibility.4 The Court should not interfere in the Board's conclusion unless it is unreasonable.5 |
[12] The documentary evidence shows that the international community has condemned the Armenian intervention in Karabakh.
[13] The panel applied the test set out in paragraphs 167 to 174 of the Handbook on Procedures and Criteria for Determining Refugee Status based on its finding that instead of having an actual conscientious objection, the applicants were more afraid of war and dying. The panel considered whether the claimant could show "that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion" and found in the negative.
[14] In addition, paragraph 171 says:
| Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution. |
[15] In my view, in its analysis of the evidence before it, the panel made no finding that could appear unreasonable and warrant this Court"s intervention.
[16] For all these reasons, the application for judicial review is dismissed.
[17] Counsel for the applicants submitted the following question for certification:
| [TRANSLATION] Do paragraphs 168 and 169 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees refer to different cases than those to which paragraphs 170 to 172 refer? |
[18] This question is not determinative with respect to the decision and therefore will not be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
JUNE 28, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2459-98
STYLE OF CAUSE: ARTYOM SANTROSYAN et al. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 8, 1999
REASONS FOR ORDER OF BLAIS J.
DATED JUNE 28, 1999
APPEARANCES:
YVES GRAVEL
FOR THE APPLICANTS
SHERRY RAFAI FAR
FOR THE RESPONDENT
SOLICITORS OF RECORD:
YVES GRAVEL
FOR THE APPLICANTS
SHERRY RAFAI FAR
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 A-23-92, May 16, 1994 (F.C.A.).
2 Salvador Garcia c. S.E.C., IMM-2521-93, February 4, 1994 (F.C.T.D.).
3 IMM-3653-97, June 4, 1998 (F.C.T.D.).