Date: 20050726
Docket: IMM-8627-04
Citation: 2005 FC 1025
BETWEEN:
ANATOLY AIDARUK SKODTAEV
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLANCHARD J.
INTRODUCTION
[1] The applicant Anatoly Aidaruk Skodtaev seeks judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), rendered by member Diane Fecteau on September 2, 2004, dismissing his refugee claim.
[2] As a remedy, the applicant is asking this Court to quash the decision, to order a re-hearing before another panel and, in the meantime, to stay any removal order.
FACTUAL BACKGROUND
[3] The applicant, a Russian citizen of the Orthodox Christian religion, is married and the father of two children. He lived in Vladikavkaz, the capital of Northern Ossetia, a republic that is part of the Russian Federation. From 1983 to 2002, he worked as a physician. In 2002 he was dismissed, and he alleged this was on account of his mixed nationality.
[4] The applicant maintained he had been the victim of discrimination and persecution by Ingush and Ossetian nationalists. He said he was humiliated, beaten and harrassed by Ossetians and suffered reprisals from Ingush, who beat him and his family, and who threw an incendiary bomb and hurled stones through the window of his apartment. He said he was attacked by Ingush while he was on an emergency call, tied to a tree and had his ambulance stolen.
[5] In addition, his involvement in a community organization helping the disabled also made him a victim of discrimination and mistreatment. When he was looking after Ingush families who had been mutilated by Ossetian nationalists, the applicant was attacked by individuals of the same group.
[6] The applicant further alleged that the church he attended was attacked by Moslem Ingush and by Ossetian nationalists, who quarrel with the interpretation given to the New Testament by his Church.
[7] In March 2003, the applicant, who is a five-time champion international arm wrestler, took part in an international competition in Poland. Ossetians threatened the applicant and his family with death if he did not lose the competition.
[8] In April 2003, the applicant said he was held for four hours and beaten by officers of the militia for his opposition to the participation of young people in the war in Chechnya.
[9] In November 2003, he said Ingush carried out a “pogrom” in the applicant's apartment because he had taken part in another competition as a judge during which a young Ingush was eliminated.
[10] Finally, the applicant alleged he became a member of the “United Russia” party after being forced to do so by the sports committee, whom he unsuccessfully asked for aid and protection. The applicant said in his opinion he was used because he was a five-time international champion.
[11] The Board heard the application on August 20, 2004 and dismissed it in a decision it rendered on September 2, 2004. Leave to file the application for judicial review at bar was granted on January 27, 2005.
IMPUGNED DECISION
[12] The applicant made a refugee claim pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA). He based his fear of persecution on his nationality and mixed Ingush/Ossetian ethnic origin, his Orthodox Christian religion, his membership in a particular social group and his political opinions.
[13] The evidence offered to the Board consisted, inter alia, of the applicant's testimony, his Personal Information Form (PIF), his passport, his degrees, his championship certificates, interview notes with an immigration officer, Form Appendix 1 - Basic Information, and documents on the socio-political conditions in the applicant's place of origin.
[14] As to the question of the applicant's identity, the Board was persuaded that the applicant had dual Ingush/Ossetian nationality, but felt his testimony that he was known as such was not credible.
[15] The Board acknowledged that the documentary evidence showed there was a very serious problem between the Ingush and Ossetians in Northern Ossetia. The evidence also was that the situation of the Ingush was very precarious and they did not have the same rights as the Ossetians.
[16] The Board noted that the applicant continued living in Vladikavkaz in Northern Ossetia, at the same address, until November 2003. This led the Board to doubt that the applicant's Ingush origin had been a major problem.
[17] In his PIF, the applicant stated that he was sent to give seminars. At the hearing, the applicant testified that, in 1998, on a radio broadcast, he had publicly thanked his mother and noted that she was an Ingush. He maintained that it was publicly recognized that he had dual nationality. On this point, which the Board considered very important, it examined the argument of counsel for the applicant, indicating that this addition merely provided clarification of the information contained in his PIF, though at the outset of the hearing he had said that document was complete. The Board stated that, in its opinion, it was an addition the purpose of which was actually to support the allegations of persecution. The Board noted that this information was not mentioned either in the PIF or in any other document, or during the applicant's interview with the immigration officer. The Board found that, in view of the inter-ethnic conflicts, it was not plausible that the applicant had thus endangered his life and that of his mother and family.
[18] The Board found that the remainder of the applicant's testimony was also not credible. The Board found that the applicant's story had significant discrepancies for which he had provided no satisfactory explanations:
- the kind of discrimination suffered by the rest of his family, which was not consistent with his statements at the interview with the immigration officer and with his statements in his PIF and in Form Appendix 1 - Basic Information;
- the fact that he did not allege he was in danger on account of his work and his sports performances until two months after his arrival in Canada, at the interview with the immigration officer;
- the fact that at one point he maintained he was the only member of his family to be endangered on account of his professional status and subsequently alleged that his family was also threatened;
- the contradictions as to the number of times and the occasions on which he was beaten by Ingush and Ossetians and held by the authorities.
[19] The Board further noted that it attached no evidentiary weight to the medical certificates submitted by the applicant, since the medical problems they indicated were not linked to the alleged incidents.
[20] In short, the Board dismissed the applicant's refugee claim as follows:
In this case, the panel finds that all the above-mentioned discrepancies, the danger to his family still living in Russia, the number of times the claimant was beaten and by whom, the period of detention, and the lack of explanations regarding the alleged acts of discrimination against his brothers and sisters, are central to the claim and prove that his story is invented. Consequently, those discrepancies are fatal to his claim.
ISSUES
[21] In my view, the following issues are raised by the case at bar:
(1) Did a breach of the rules of natural justice and procedural fairness occur in the case at bar with respect to the sending of documents?
(2) Did the Board err in dismissing the refugee claim as a result of its negative assessment of the applicant's credibility?
ANALYSIS
(1) Did a breach of the rules of natural justice and procedural fairness occur in the case at bar with respect to the sending of documents?
[22] A preliminary point of procedure was raised by the applicant in the case at bar. He alleged that the Board made an error in interpreting its own rules of procedure, specifically those relating to the sending of documents.
[23] The Board noted that, at the hearing, counsel for the applicant informed it that he had not received the immigration documents. The Board noted that a letter dated June 29, 2004 indicated that the documents had been sent to him, that is over 21 days before the date of the hearing. An additional copy was accordingly given to counsel for the applicant and he was granted an adjournment so that he could consult the documents. Neither the applicant nor his counsel objected to the hearing going forward.
[24] The applicant maintained that the Board misinterpreted its own rules of procedure. He argued that subsection 29(4) of the Refugee Protection Division Rules, SOR/2002-228 (the Rules), provides that any document must be received by the party to whom it is sent no later than 20 days before the hearing. The applicant noted that it was the time of receipt, not the time of sending, that was important. Finally, the applicant argued that the Board did not correctly apply the rules pertaining to the admission of tardy evidence into account provided for in Rule 30.
[25] The respondent replied that the Board had adequately interpreted the rules. He noted that the hearing took place on August 20, 2004, that is over 21 days after the immigration documents were sent on June 29, 2004. I accept the respondent's argument that 52 days elapsed between the time the documents were sent by mail and the day of the hearing, which considerably exceeds the seven-day receipt presumption provided for in subsection 35(2) of the Rules. Further, the applicant did not object to the hearing going forward. I cannot conclude that in the case at bar the Board erred in applying its own rules on these matters. There was no breach of the rules of natural justice and procedural fairness in this case.
(2) Did the Board err in dismissing the refugee claim as a result of its negative assessment of the applicant's credibility?
[26] The Board dismissed the applicant's refugee claim because it did not find the claim credible. This type of finding must be treated with great deference by this Court. The Board is in a better position to assess the evidence, to attach the evidentiary weight to it which it feels is appropriate on the facts in the record and to determine the credibility of witnesses: Bula v. Canada (Secretary of State), A‑329‑94, June 19, 1996, [1996] F.C.J. No. 876 (QL). Therefore, the applicable standard of review is that of the patently unreasonable decision: Aguebor v. Canada (Minister of Employment and Immigration), A-1116-91, July 16, 1993, [1993] F.C.J. No. 732 (QL), (1993) 160 N.R. 315; R.K.L. v. Canada (Minister of Citizenship and Immigration), 2003 FCTD 116; [2003] F.C.J. No. 162 (QL); (2003) 228 F.T.R. 43, (2003) 26 Imm. L.R. (3d) 292.
[27] The applicant maintained that the Board erred by finding that his brothers and sisters were the victims of discrimination, not persecution. The applicant further objected to the Board's finding that his mixed Ingush/Ossetian origin was not known. In the applicant's submission, the Board failed to take into account the fact that he suffered persecution on account of his Ingush origin since it did not refer to instances of persecution on the part of Ossetians. He maintained that it was the fact he was targeted by Ingush and Ossetians which caused him to flee to Canada. He argued that the Board also erred by not examining his allegation that he was at risk of persecution on account of his work and his sports performances.
[28] The respondent replied that the Board correctly relied on the evidence in the record in arriving at its findings. The Board was not satisfied with the explanations given by the applicant. As to the applicant's profession and his sports performances, the respondent noted that he did not mention these at the interview and did not refer to them until later in the proceeding. In addition, the Board dismissed the applicant's statement that he disclosed his ethnic identity over the radio in 1998. These findings of fact are not patently unreasonable.
[29] In my opinion, it was reasonable for the Board to question the alleged “persecution” or “discrimination” suffered by the applicant's family, since he was of the same origin as the members of his family and lived in the same area. The applicant himself described the type of problem his family confronted as “discrimination”. Since the applicant at one point alleged that his family was in danger and at another stated that his family suffered discrimination, but it was only he who was really in danger on account of his work and sports performances, it is not unreasonable for the Board to have questioned his credibility.
[30] The applicant further argued that the Board did not deny the authenticity of the medical certificates submitted by him but did not take them into account in arriving at its decision. In my opinion, the Board did not attach any evidentiary weight to them because it could reasonably find that these documents were not related to the events mentioned in the refugee claim and did not tend to confirm the incidents in which the applicant was allegedly involved.
[31] Finally, the applicant argued that the Board erred in not ruling on all the grounds advanced in support of his claim, namely his religion, his membership in a particular social group, his political opinions and the fact that he was a “person in need of protection” within the meaning of subsection 97(1) of the IRPA.
[32] The Board's decision was based, inter alia, on fundamental contradictions between the applicant's testimony at the hearing, his PIF and the statements contained in Form Appendix 1 - Basic Information, regarding the number of times and the occasions he was allegedly beaten by the Ingush and Ossetians as well as by officers of the militia. Further, the applicant did not mention his problems related to his work and his sports status in the examination by the immigration officer.
[33] In my opinion, it appears from the Board's decision that it found the applicant to be not credible based on his story as a whole. Accordingly, it could not base its conclusion on another ground. If it found the applicant to be not credible in his story, this is the reason the applicant's whole refugee claim was dismissed. The Board further noted that it dismissed the refugee claim both on account of the grounds pertaining to section 96 and of the grounds pertaining to subsection 97(1) of the IRPA.
[34] As noted earlier, the probative value attached to the evidence by the Board is subject to the standard of the patently unreasonable decision, as are its findings on credibility. In the case at bar, I cannot find that the Board's decision is patently unreasonable. It took into account contradictions in the applicant's evidence regarding important aspects of his refugee claim. Their cumulative effect supported the Board's decision and I feel there is no basis for this Court to intervene.
CONCLUSION
[35] In short, I have been persuaded that the Board did not err in basing its conclusion on the applicant's lack of credibility. The application for judicial review is dismissed.
[36] The applicant requested an extension of time after the filing of these reasons to propose a serious question for certification. The applicant will be allowed ten days from the date of these reasons to serve and file his question. As the respondent has indicated that he will not file any question, he will have five days from the date of receipt of the applicant's question to file his reply. After reviewing the submissions, an order will be made dismissing the application for judicial review and disposing of the question for certification.
« Edmond P. Blanchard »
Judge
Ottawa, Ontario
July 26, 2005
Certified true translation
François Brunet, LLB, BCL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8627-04
STYLE OF CAUSE: ANATOLY AIDARUK SKODTAEV v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 27, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Blanchard
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Lucie St-Pierre FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec