Date: 20001003
Docket: IMM-474-00
BETWEEN:
EWA PRZYBYLA
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review application of the decision of the Refugee Board, dated January 6, 2000, in which the applicant was determined not to be a Convention refugee.
Facts
[2] The applicant, a citizen of Poland, arrived in Canada on December 6, 1995. She claims that her parents were Jewish. The applicant married Zibigniew Przybyla, a devout Catholic and anti-Semite, believing him to be Jewish.
[3] Her trouble started, when she refused to have her children baptized. She claims that her husband's anti-Semitism and alcoholism led to verbal and physical abuse. She also claims that he was involved in desecrating a Jewish cemetery.
[4] She further alleges that the abuse increased, when her husband found out that she was a lesbian.
The Board's decision
[5] The Board made a general finding of lack of credibility and determined that there is insufficient credible or trustworthy evidence on which to base a positive decision.
[6] In the Board's opinion, the evidence in the claim was highly implausible, requiring a suspension of disbelief that the Board was unable to make. The Board was of the view that the following allegations defied logic:
| 1) that a Jewish person would have Catholic relatives |
| 2) a Jewish person would be tricked by those relatives into marrying a Catholic posing as a Jew |
| 3) a rabid anti-Semite would pose as a Jew, so as to marry a Jewish person for some perverse purpose of revenge, and |
| 4) a person could be misled into marrying a Catholic. |
[7] The Board found the above evidence not only highly implausible, given the historic, antagonistic relationship between Catholics and Jews in Poland, but also found it insulting to the intelligence and common sense of the Board.
[8] Given that the aforementioned allegations are substantive issues in the claim at bar, the lack of a plausible explanation led the Board to make an adverse finding of credibility.
[9] The Board was not convinced that the applicant was Jewish, since she did not provide any documents to support her ethnicity. The Board was of the view, that the applicant's Jewish identity is pivotal to her claim.
[10] The Board noted that the applicant did not provide any marriage certificate to prove her marital status of birth certificate for her children. The Board drew a negative inference from the absence of these documents.
[11] As to her sexual orientation, the Board noted that the applicant wrote in her PIF that she told her husband of her involvement with another woman, whereas she testified that she became aware of her sexual orientation in Canada.
[12] The Board pointed out that the applicant's husband is not a threat to her, since he had not harmed her since she left the marital home in March 1995.
[13] Furthermore, the Board concluded that the two years and a half delay in making a refugee claim indicates a lack of a subjective fear of persecution. The Board noted the large Polish community and concluded that the applicant could have approached it for assistance.
Analysis
[14] The Board member had asked the applicant at the hearing for the marriage certificate and the birth certificates of her children. She replied that she did not get them from Poland.
[15] Counsel for the applicant asked the Board to allow her until October 31, 1999 to present written submissions and additional evidence. The applicant's submissions were received November 3, 1999. Those documents were later provided as they appear in the Tribunal record before this Court.
[16] Although it is clear that the Board erred in concluding that the applicant did not provide them and in drawing a negative inference from the absence of the documents, I am of the view, that the error was not determinative in this case. In Yassine v. Canada (M.E.I.) [1994] F.C.J. No. 949. DRS 94-11781 Appeal No. A-795-91, Stone J.A. stated at page 5 paragraph 9:
| A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. |
[17] The Board concluded to a general lack of credibility on the applicant's part and based that conclusion on Sheikh v. Canada (M.C.I.), [1990] 3 F.C. 238, where the Federal Court of Appeal explained:
| I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient. |
[18] The Board also noted serious implausibilities in the applicant's testimony that led the Board to conclude that the applicant was not a Convention refugee.
[19] The Federal Court of Appeal held in Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 315:
| 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. |
[20] The Board did not believe that the applicant would have Jewish relatives practising Catholicism, nor that they would trick her into marrying an anti-Semite Catholic, posing as a Jew. Furthermore, the Board noted contradictory evidence as to her sexual orientation. The Board also drew a negative inference from the fact that she submitted a refugee claim over two years and a half of her arrival, concluding that she did not have a subjective fear.
[21] The applicant has failed to prove to this Court that its intervention is warranted. For these reasons, this judicial review application is dismissed.
[22] Neither counsel suggested a question for certification.
Pierre Blais
Judge
Ottawa, Ontario
October 3, 2000