Date: 19980915
Docket: IMM-5437-97
Between:
NATALIA TCHEREMNYKH
ANDREY TCHEREMNYKH
VIKTORIA TCHEREMNYKH
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of the decision of the Refugee Division determining that the applicants, who are citizens of Kazakhstan, are not Convention refugees.
[2] The applicant Natalie TCHEREMNYKH and her two children, Andrey TCHEREMNYKH and Viktoria PLAKINA, claimed refugee status on the basis of a well-founded fear of persecution by reason of their nationality and membership in a particular social group. The children's claims are based on their mother's claim.
[3] In support of her claim, the applicant, who is of Russian nationality, essentially asserted that her mother's Jewish nationality was the source of all the problems suffered by the family over the last several years.
[4] The applicant filed a duplicate of her birth certificate in evidence; it shows her mother's nationality as Jewish. She explained how she had mislaid the original of that document. The Refugee Division did not consider her explanation to be plausible:
| [TRANSLATION] ... birth certificates issued in the former USSR are rather thick, and this makes the assertion that one might slip them into a book and then lend the book to someone, without it being apparent that the birth certificates were there, totally implausible.1 |
[5] In addition, the Refugee Division assigned no probative value to the (duplicate) birth certificate. On this point, the panel said:
| ... the panel told the claimant that it had specialized knowledge and that it knew perfectly well, from having been faced with similar situations several times in recent months, that it was very easy for claimants from Kazakhstan and the countries of the former USSR to procure identity documents indicating that they are of Jewish or partially Jewish origin.2 |
[6] Lastly, the Refugee Division considered the applicant's story about being persecuted because of her mother's Jewish origin to be implausible. The applicant acknowledged that a birth certificate is a document that an individual uses three or four times at most during his or her life and that what is used in everyday life in Kazakhstan is the passport. Her and her children's passports show that she is of Russian nationality. Accordingly, the Refugee Division placed no weight on the applicants' allegations that there had been acts of anti-Semitic persecution or discrimination against the claimants.
[7] The applicants contend that the Refugee Division erred in relying solely on its specialized knowledge in concluding that the applicant's duplicate birth certificate carried no weight.
[8] The applicant further argued negligence on the part of her former counsel, who failed to file the birth certificate of her sister, who was granted refugee status in Canada in 1992, which shows her mother's nationality.
[9] In my opinion, the Refugee Division clearly explained the reasons why it assigned no probative value to the duplicate birth certificate filed by the applicant. It was up to the Refugee Division to weigh the explanation supplied by the applicant and to draw its own conclusions as to the value of the document.
[10] As Mr. Justice Joyal recently pointed out in Culinescu,3 credibility is a question of fact that is entirely within the jurisdiction of the Refugee Determination Division, and that tribunal is justified in questioning the authenticity of a document when it has sufficient evidence to make that conclusion. This is the case in this instance.
[11] Moreover, as counsel for the respondent pointed out, its reasons were based not only on its specialized knowledge, but also on a number of implausibilities that emerged from the evidence submitted by the applicant.
[12] With respect to the implausibility of the claim, the Refugee Division could reasonably have made this inference: by the applicant's own admission, a birth certificate is used only 3 or 4 times in a lifetime. Since it is the passport that is used on a daily basis, and her passport shows Russian nationality, it is plausible to conclude that she could not have been persecuted because of her Jewish origin.
[13] Lastly, the applicant argues that her counsel was incompetent. The courts have repeatedly held that, other than in exceptional cases, a client cannot dissociate himself or herself from the conduct of his or her counsel.
[14] In Jouzichin,4 Madam Justice Reed stated:
| ... the general rule is that you do not separate counsel's conduct from the client. Counsel is acting as agent for the client and as harsh as it may be the client must bear the consequences of hiring poor counsel. |
[15] I am of that opinion. The applicant must suffer the consequences of her choice of counsel. In any event, she herself was lacking in diligence. At the time of the hearing, the Board members specifically asked her whether her sister had her birth certificate in her possession. The applicant's answer was simply that she didn't know. Moreover, although the panel again mentioned the importance of the certificate in question at the end of the hearing, the applicant did nothing to arrange for it to be filed.
[16] Consequently, there is no ground for this Court to intervene. The application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
September 15, 1998.
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-5437-97
STYLE OF CAUSE: NATALIA TCHEREMNYKH ET AL. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 11, 1998
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED: SEPTEMBER 15, 1998
APPEARANCES:
Brigitte Poirier
FOR THE APPLICANTS
Caroline Doyon
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Brigitte Poirier
FOR THE APPLICANTS
Caroline Doyon
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Reasons of the Refugee Determination Division, p. 3.
3 Culinescu v. M.C.I. (1997), 136 F.T.R. 241 (F.C.T.D.).
4 Jouzichin v. M.C.I., (December 9, 1994), IMM-1686-94 (F.C.T.D.), para. 2.