Date: 19971205
Docket: IMM-3527-96
Ottawa, Ontario, the 5th day of December 1997.
Present: The Honourable Mr. Justice Pinard
Between:
PAUL SEVASTIAN OSTAFI and
EDUARD CRISTIAN OSTAFI,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review of the decision rendered on September 10, 1996 by the Convention Refugee Determination Division, which found that the applicants Paul Sevastian Ostafi and his brother Eduard Cristian Ostafi are not Convention refugees, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Christiane Delon
Date: 19971205
Docket: IMM-3527-96
Between:
PAUL SEVASTIAN OSTAFI and
EDUARD CRISTIAN OSTAFI,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.:
[1] The application for judicial review concerns a decision rendered on September 10, 1996 by the Convention Refugee Determination Division, which found that the applicants Paul Sevastian Ostafi and his brother Eduard Cristian Ostafi are not Convention refugees as defined in subsection 2(1) of the Immigration Act (the Act). The applicants are basing their claim on their fear of persecution in Romania due to membership in a particular social group, namely young Romanians between the ages of 19 and 26.
[2] The applicants left Romania by bus on May 15, 1993. They crossed the Ukraine and Poland and then requested asylum in Germany on May 18, 1993. They later went to France and finally arrived in Canada on September 8, 1993.
[3] After holding that young Romanians between the ages of 19 and 26 are not a particular social group within the meaning of the Convention, as defined in subsection 2(1) of the Act " which would have been sufficient to deny the applicants" claim " the panel nevertheless considered the applicants" version of the facts and their conduct. It ultimately concluded as follows:
| [translation] In this context, the claimants have not discharged their burden of proof, since they have not shown in a reasonable and credible fashion that there is a "serious possibility" they will be persecuted if they return to Romania. |
[4] On the issue of credibility relating to the fear of persecution expressed by the applicants personally, the panel did not believe that the main applicant had not kept a copy of the newspaper article referring to the scandal involving his employer; despite the scarcity of paper in Romania, the panel found it implausible that he had used the page of the newspaper on which the article appeared to wrap his sandwich. Moreover, the Refugee Division felt that the applicants had contradicted themselves in explaining why they had not waited for Germany"s response to their refugee claim; after first answering that they had come to Canada because they were drawn by the publicity, they then stated that they had come here after discussing the matter with their parents. Finally, the panel noted that the applicants" conduct was inconsistent with a genuine subjective fear of persecution, since they had not claimed refugee status in France, where they had spent a few months. The panel stated the following on this last point:
| [translation] No refugee claim was made in France, where they stayed for two months. The panel feels that the applicants" conduct is inconsistent with that of persons who claim to fear for their lives. Do those who claim to fear for their lives choose their country of refuge? According to Mr. Justice MacKay, it is assumed that a country that signs an international convention will meet its obligations:5 |
| In my view, it may also assume that a country adhering to an international convention will meet its obligation to implement the convention within its own territory if that be required, unless evidence to the contrary is adduced. |
| 5 Lucian Ioan Ilie v. M.E.I., F.C.T.D., IMM-462-94, November 22, 1994. |
[5] In Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, Décary J.A., writing for the Federal Court of Appeal, stated at pages 316-17 that the same level of judicial deference is applicable to questions of credibility and questions of implausibility:
| It is correct, as the court said in Giron, that it may be easier to have a finding of implausibility review where it results from inferences than to have a finding of non-credibility review where it results from the conduct of the witness and from inconsistencies in the testimony. The court did not, in saying this, exclude the issue of the plausibility of an account from the Board"s field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility". |
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
(Emphasis added.)
[6] In the case at bar, it is my view, having regard to the evidence, that the applicants have not discharged the burden that rests on them of showing that the inferences drawn by the Refugee Division, which is a specialized tribunal, could not reasonably have been drawn. This is sufficient to justify dismissing the application for judicial review without this Court having to rule on the question of whether the applicants are members of a particular social group as defined in the Convention.
[7] Moreover, the stare decisis rule relied on by the applicants is not applicable here, since all the facts of the other claim before the Refugee Division were not adduced in evidence (see Handal et al. v. M.E.I. (June 10, 1993), 92-A-6875).
[8] For all these reasons, the application for judicial review must be dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
December 5, 1997
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT NO.: IMM-3527-96 |
| STYLE OF CAUSE: PAUL SEVASTIAN OSTAFI ET AL. v. MCI |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: December 3, 1997 |
| REASONS FOR ORDER BY: PINARD J. |
| DATED: December 5, 1997 |
APPEARANCES:
Serge Segal FOR THE APPLICANTS
Josée Paquin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Serge Segal FOR THE APPLICANTS
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada