Date: 19971205
Docket: IMM-4133-96
Ottawa, Ontario, the 5th day of December 1997.
Present: The Honourable Mr. Justice Pinard
Between:
GHEORGHE SILAGHI,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review of the decision rendered on October 9, 1996 by the Convention Refugee Determination Division, which found that the applicant is not a Convention refugee, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Christiane Delon
Date: 19971205
Docket: IMM-4133-96
Between:
GHEORGHE SILAGHI,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.:
[1] The application for judicial review concerns a decision rendered on October 9, 1996 by the Convention Refugee Determination Division, which found that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act (the Act). The applicant is basing his claim on his 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 applicant left Romania on February 14, 1994. He went to Hungary, Czechoslovakia, Germany and France before finally arriving in Canada.
[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 applicant"s claim " the panel nevertheless considered the applicant"s version of the facts and his conduct. It ultimately concluded as follows:
| [translation] In this context, the claimant has not discharged his burden of proof, since he has not shown in a reasonable and credible fashion that there is a "serious possibility" he will be persecuted if he returns to Romania. |
[4] On the issue of credibility relating to the fear of persecution expressed by the applicant personally, the panel began by questioning his version of the facts concerning a fire at his home and then held that his conduct was inconsistent with a genuine subjective fear of persecution:
| [translation] Second, we note that the claimant was on vacation in Turkey in October 1993 and in Hungary in November 1993. The claimant claims that he was persecuted since his youth. However, as can be seen from his answer to question 23 of his PIF, the claimant made two trips in October and November 1993 but returned to Romania voluntarily each time. The claimant"s conduct is not that of a person who fears and seeks to avoid persecution, and it therefore casts doubt on the genuineness of his subjective fear. |
| We also note the route he took to come to Canada and claim refugee status here. The claimant fled Romania and went to four countries before arriving in Canada. He left Romania on February 14, 1994, he stayed in Hungary on February 14, in the Czech Republic and Slovakia from February 15 to 16 and in Germany from February 16 to 26, he lived in France from February 27 to April 25 and he finally arrived on May 5 in Canada, where he claimed refugee status. |
| We asked him why he did not claim refugee status in some of the countries where he stayed. He replied that he had made a claim in Germany but that an interpreter had told him the response would be negative and he would be summoned and sent back to Romania. He made a claim in France but did not wait for the response, since the conditions were "atrocious". |
| We find his conduct after he left Romania inconsistent with his fear of persecution. If the claimant had feared persecution, he would at least have claimed refugee status in the first two countries he went through before coming to Canada. |
| We also find the claimant"s answer about his claims in Germany and France implausible. In this regard, we are assuming that each country that signs an international convention is responsible for meeting its obligations thereunder unless otherwise informed. |
| We also note that we asked the claimant about the incident on August 20, 1993 when his family home was set on fire by members of the National Salvation Front (NSF). On question 37 of his PIF, the claimant wrote that the city"s firefighters fought the fire, whereas at the hearing he stated that his friends and cousins helped them put out the fire. The claimant told us that he had not gone over the written text of his claim. We find that this casts doubt on how genuinely credible he is. |
[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 applicant has not discharged the burden that rests on him 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 applicant is a member of a particular social group as defined in the Convention.
[7] Moreover, the stare decisis rule relied on by the applicant 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-4133-96 |
| STYLE OF CAUSE: GHEORGHE SILAGHI |
v.
| MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: DECEMBER 3, 1997 |
| REASONS FOR ORDER BY: PINARD J. |
| DATED: DECEMBER 5 |
APPEARANCES:
SERGE SEGAL FOR THE APPLICANT
JOSÉE PAQUIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
SEGAL, LAFOREST, EL MASRI FOR THE APPLICANT
MONTRÉAL, QUEBEC
GEORGE THOMSON FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA