Date: 20020926
Docket: IMM-2121-01
Neutral citation: 2002 FCT 1009
Toronto, Ontario, Thursday, the 26th day of September, 2002
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MARINA GOLUBYATNIKOVA
YULIYA GOLUBYATNIKOVA
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated March 19, 2001, wherein the Board determined that the applicants were not Convention refugees.
[2] The only issue is whether the Board erred in finding the applicant not credible.
[3] The applicant, Marina Golybyatnikoa, and her minor daughter, Yuliya, are citizens of Kazakhstan. She claims Convention Refugee status on the basis of a well-founded fear of persecution based on her membership in a particular social group, that is, ethnic Russian lesbians in Kazakhstan, and women abused by their husbands.
[4] The Board accepted that the claimants were ethnic-Russians from Kazakhstan, but was not satisfied that the applicant has established that she is a lesbian or faces persecution on the basis of spousal abuse in Kazakhstan.
[5] The applicant alleged that beginning in 1990, she was physically and verbally abused by her spouse. Her husband refused to give her a divorce and threatened her with violence if she initiated divorce proceedings. She stated in 1995 she met Galina, and subsequently they became lovers. Her husband allegedly discovered her sexual orientation in January 1998, and then revealed this information to her work colleagues. Subsequently her co-workers began to harass her. In May 1998, she claimed that she and Galina were attacked by a group of Kazaks, one of whom she recognized from work. She claims that Galina died as a result, and that the applicant incurred a brain injury.
[6] The Board found that the applicant's fear of persecution was not credible for the following reasons:
a) The applicant completed an independent immigration application in January 1998, and included her husband as a dependent. It was denied. Shortly after that the applicant visited her sister in Canada and made a refugee claim. The Board found it implausible that the applicant would include her husband in her immigration application considering his physical abuse and the discovery that she was a lesbian.
b) The Board did not believe the applicant's explanation that her husband threatened to withhold his consent for their daughter to accompany the applicant if he were not included in the application.
c) When the Board asked how the applicant obtained permission from her husband to visit her sister once the independent application failed, she alleged that she handed over all her property to her husband in exchange for his relinquishment of custody rights to their daughter. The applicant provided a divorce certificate dated May 12, 1999, approximately one week after she received her Canadian visitors visa. She had no custody papers or evidence of her property transfer other than a power of attorney she had given her husband. The panel did not accept this as sufficient evidence of a relinquishment of her property in exchange for their daughter.
d) The applicants did not leave their country until 1999, after they had been refused as independent applicants.
e) The applicant gave evidence that she has a brain tumor, but no evidence that it was linked to the applicant's fear of persecution.
[7] The applicant submits that the Board erred in finding the applicant not credible. It is submitted that there is a presumption of truthfulness of oral testimony given under oath unless there is valid reason to doubt its truthfulness. It is further submitted that in this case, the applicant's evidence was plausible and consistent, and that the panel had no reason to doubt her testimony.
[8] The Board is a specialized tribunal with complete jurisdiction to determine the plausibility of testimony and gauge the credibility of an account and draw the necessary inferences. See Arguebor v. Canada (Minister of Employment and Immigration), 1993 F.C.J. No. 732 (QL) (F.C.A.), Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (QL) (F.C.A.), Razm v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 373 (QL) (F.C.T.D.), Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL) (F.C.T.D.).
[9] In this case, the inferences drawn by the Board are not so unreasonable as to warrant the Court's intervention. It is apparent from the decision that the Board based its decision on the claimant's credibility. The Board rejected the claimant's testimony and provided detailed reasons for its decision on credibility and plausibility in clear and unmistakable terms. The Court is not authorized to substitute its view of the facts for that of the Board. The Board had the benefit of seeing and hearing the witnesses, and the expertise for assessing evidence relating to facts within its area of specialized expertise. The Court is not satisfied that the Board made a patently unreasonable finding of credibility or plausibility in this case.
ORDER
This application for judicial review is denied. Counsel indicated that there was no
question for certification. No question is certified.
"Michael A. Kelen"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2121-01
STYLE OF CAUSE: MARINA GOLUBYATNIKOVA
YULIYA GOLUBYATNIKOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, SEPTEMBER 26, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: THURSDAY, SEPTEMBER 26, 2002
APPEARANCES BY: Mr. Robin Morch
For the Applicant
Mr. Marcel LaRouche
For the Respondent
SOLICITORS OF RECORD: Robin Morch
Barrister, Solicitor & Notary Public
1137 Royal York Road
Suite 1010C
Toronto, Ontario
M9A 4A7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020926
Docket: IMM-2121-01
BETWEEN:
MARINA GOLUBYATNIKOVA
YULIYA GOLUBYATNIKOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER