Date: 20020726
Docket: IMM-5079-01
Neutral citation: 2002 FCT 826
BETWEEN:
PIOTR BURIANSKI
EWA KENDZIERSKA
ROMAN KENDZIERSKI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants, claiming to be husband, wife and son, say they are Polish Roma. Their refugee claim was turned down by the Refugee Division of the Immigration and Refugee Board (the tribunal) on October 12, 2001 which they challenge in this judicial review application.
[2] Their story is a familiar one. In their Personal Information Form (starting in 1990 for Mr. Burianski and for Ewa Kendzierska in 1997 after she had returned to Poland from Canada in 1993 following her parents' failed refugee claim) tell of suffering a number of physical attacks at the hands of the skinheads and the unwillingness of the police to do anything or their failure to do much because the attackers had fled and were unidentified.
[3] The tribunal wrote its conclusions in the following terms:
In conclusion, therefore, the Panel finds that the Claimants in this case have not met the first and most significant test of any refugee claim and that is establishing that they are who they say they are. Their testimony with regard to identity is not credible. Even if the principal female Claimant's testimony with regard to the incidents that allegedly happened to her is true, it does not amount to persecution. In the case of the principal male Claimant, it may be that he is telling the truth with regard to the incidents that happened to him and, if so, it would amount to persecution. But once again, the panel has serious doubts about the veracity of his statements, given the fact that he and his wife did not leave until three years after the last incident. It makes no sense to the panel that, if these terrible things did happen, they didn't leave earlier.
And finally, even if everything the Claimants told the Panel both in their personal information forms and in their viva voce testimony is true, there is state protection in Poland for Polish Roma and the panel would reasonably expect that this state protection would be sought by the Claimants before they sought Canada's protection.
(a) Identity
[4] On the issue of identity, the tribunal was not satisfied with the evidence led by the applicants as to who they were and whether the couple was indeed married.
[5] Except for Piotr Burianski who produced a birth certificate, the applicants were without documents. None had a Polish Identity Card which the tribunal said all Poles have. There was no birth certificate for their son nor did they have any documentation about their marriage (marriage certificate, wedding photos, etc.).
[6] The tribunal gave little weight (in another place in its decision it said it gave no weight) to the birth certificate produced by Mr. Burianski. It said it was aware of a brisk trade in fake documentation with regard to Polish Roma claims and noted the birth certificate had a number of questionable aspects to it.
[7] More problematic for the applicants was, in the tribunal's view, the credibility of Mr. Burianski's "uncle" called to identify him. The tribunal recited a number of inconsistencies and implausibilities in his testimony. Again it concluded it would not give any weight (in another place "cannot give significant weight") to that person's testimony.
[8] On this point, the tribunal wrote:
So the Panel is left with only one conclusion and that is that the principal male Claimant and the principal female Claimant have not met the burden of proof in establishing what is absolutely essential in any refugee claim, and that is that the Claimants are who they say they are. The Claimants may be Roma. They may speak the Polish language but the Panel has no idea based on the evidence presented to it whether or not they have lived in Poland, whether or not they are married, and whether or not the child is theirs. And so the Panel finds that this claim fails on the basis that there is insufficient credible and trustworthy evidence that the Claimants are who they say they are.
(b) The Marriage
[9] The tribunal was not satisfied the couple had established they were married. Neither of them attended their wedding which the tribunal found was astonishing because it had heard of some Roma weddings where either the bride or groom was absent from the ceremony but had never heard of a wedding where both were absent. The tribunal relied on its experience and the documentary evidence to reach this conclusion.
[10] More importantly, when entering Canada, the Immigration Officer noted Mr. Burianski told him that he was single and in his notification of claim, he left blank the answer to the question about a spouse. He put N/A as an answer as did Ewa Kendzierska.
[11] The tribunal found implausible their explanation that they said they were single because prior to coming to Canada they had a fight and wanted to separate. The tribunal wrote:
Given the many instances of implausible testimony culminating in the testimony with regard to their marriage, the Panel has grave reservations about trusting anything that these Claimants tell us. But again, if the Panel is in error with its finding of persuasive credibility problems throughout the testimony with regard to identity and with regard to the alleged marriage, then it is incumbent upon the Panel to go through the Claimant's stories of what their life in Poland was.
(c) Analysis of Incidents
[12] With regard to the incident described by Ewa Kendzierska (disparaging comments by nurses at the hospital when she was giving birth to her son and being forced to wait longer than others at medical checkups) was not persecution but discrimination. It was one incident but it did not have the repetition and persistence that would transform it into the realm of persecution.
[13] As to the major attack which she testified occurred in 1998, the tribunal identified credibility problems in that in her PIF she had written the incident occurred in 1997. The tribunal concluded this mistake made no sense.
[14] The tribunal then turned to the incidents Mr. Burianski had written about. It questioned whether the incidents were true because the last incident described by him occurred in 1997 but they only left in early 2000. It did not accept his explanation which according to the tribunal was "that they stayed in the house, they did not go out."
[15] The tribunal concluded as follows:
The Panel does not find it plausible that a couple stayed in the house and did not go out for three years. If the Claimants stories are true, then the Panel would reasonably expect that they would have done in 1997 what they did in the year 2000 and that is gather some money together, pay a smuggler and leave. The fact that they did not makes the Panel wonder about the truthfulness of the allegations. And even if the allegations are true, then their failure to leave sooner than they did goes directly to subjective fear. It makes no sense that if these terrible things were happening, they would wait three years to do what they finally did in the year 2000.
(d) State protection
[16] The panel went on to examine the question of state protection prefacing that question by stating "but if we say for the sake of argument that the panel's assessment of the claimants' credibility with regard to their identity is wrong and that the allegations of persecutory acts are true, then the panel must examine the question of state protection."
[17] The panel was satisfied, examining the documentary evidence, state protection for Polish Roma was available.
ANALYSIS
[18] Counsel for the applicants argued the tribunal erred in four ways. First, on identity, counsel stated the validity of Mr. Burianski's birth certificate was not raised at the hearing and, if it had concerns about that birth certificate, the tribunal members not being experts, should have sent it to forensics. He added there was nothing to contradict Mr. Burianski was Polish and a Roma. He did provide pictures and the envelope in which his birth certificate was sent. He added the whole issue about the validity of the birth certificate seemed to be a conversation between the tribunal and the interpreter and not between the applicants and the tribunal.
[19] Second, the tribunal misapprehended the evidence of why the applicants did not leave Poland earlier. The applicants did not testify they remained closeted in their house for three years. Mr. Burianski acknowledged there were no incidents after 1998 but this was because he was very careful and did not go out much.
[20] Third, on the issue of state protection, counsel argued the tribunal erred in not looking at the totality of the documentary evidence but really at only one document which was state generated.
[21] Finally, counsel urged the tribunal denied the applicants a fair hearing because at their first hearing, tribunal members hamstrung applicants' counsel (who was a different person than the counsel who argued the judicial review) turned the process into an inquisition and became the adversaries of the applicants.
[22] In particular, applicants say that the interruptions during the examination and submissions by counsel and the sarcastic comments by the panel members would create a reasonable apprehension of bias and would lead a reasonable person to believe that the tribunal had prejudged the issue.
(a) Reasonable Apprehension of Bias
[23] The test for reasonable apprehension of bias is well known and consists of whether or not an informed person viewing the matter realistically and practically and having thought the matter through would think it more likely or not the decision maker would consciously or unconsciously decide the issue fairly.
[24] Specifically here the question is whether the tribunal members' conduct would give rise to a reasonable apprehension of bias.
[25] The applicants point to several instances of conduct by the presiding member as evidence of bias or leading to a reasonable apprehension of bias.
[26] These instances are: (1) skintone comments; (2) the presiding member as a prosecutor; (3) irrational questioning designed to belittle and confuse the claimants; (4) sarcastic questioning; (5) implausibility about not being asked questions at point of entry despite applicants answer that the smuggler handled everything; (6) hasty conclusion by the tribunal about the applicants' identity witness when that witness' testimony had not been completed; (7) prejudgement when examining identity photographs; (8) irrelevant questioning about Ewa Kendzierska's grandfather's experience in a concentration camp designed to confuse and belittle her; (9) refusal by the tribunal members to view Mr. Burianski's scar and (10) interruptions by the presiding member during counsel's argument leading to his confusion.
[27] I reviewed the transcript as a whole and conclude the applicants' argument on this point fails. I note there was an RCO present on July 3, 2001, but none present at the hearing held on September 14, 2001.
[28] I subscribe to the following comments made by Justice Heald on behalf of the Federal Court of Appeal in Mahendran v. Canada (Minister of Employment and Immigration) (1991), 14 Imm L.R. (2d) 30:
I have no hesitation in expressing my concern at the lengthy nature of the interventions of Board Member Groos. I think it would have been preferable for him to have left the main burden of questioning the appellant to the Refugee Hearing Officer. However, having said this, I hasten to add that members of this Tribunal are enabled, pursuant to subsection 67(2) of the Immigration Act to "administer oaths and examine any person on oath", and: "do any other thing necessary to provide a full and proper hearing". If Board Member Groos, as seems evident from the transcript, had problems with the appellant's testimony at the conclusion of the examinations conducted by the appellant's counsel and by the Refugee Hearing Officer, he was entitled to conduct his own questioning of the appellant in the proper discharge of his duties as he perceived them. On this basis, it is necessary to assess the nature of this questioning in order to determine whether there is merit in the objections to that questioning by counsel for the appellant ... . After carefully reviewing the transcript, I must respectfully disagree with counsel's criticisms of the questioning by Mr. Groos. I would characterize his questioning as being an energetic exercise in attempting to clear up some inconsistencies in the evidence. It also discloses some frustration at being unable to get a clear picture of the general purport of the evidence being given.
[29] Taken individually, the criticisms levelled at the presiding member's interventions, while perhaps not in the same vein as in Mahendran, supra, do not, in my view, offend the principles laid down by the Supreme Court of Canada in Committee for Justice and Liberty v. Canada (N.E.B.), [1978] 1 S.C.R. 369.
[30] My reading of the transcript shows the tribunal members had held two prehearing conferences with counsel for the applicants where issues were identified and lines of questions suggested. It is true the presiding member intervened considerably but counsel for the applicants was content with these interventions and never objected. Where he felt it necessary to complement or supplement the answers which his clients gave, he would do so by asking followup questions. As I see it, in a very real sense, counsel for the applicants was working in tandem with the tribunal members and, at the first hearing with the RCO, to elicit the applicants' story.
[31] I add there were some instances where the presiding member may have been sarcastic but counsel for the applicant would check him and would obtain from the presiding member the appropriate rectification.
[32] The record does not support counsel for the applicants' allegations the presiding members' questioning was demeaning of the applicants. Mr. Burianski complained once about detailed questioning but after the presiding member explained why it was necessary to obtain specific answers to specific questions, Mr. Burianski appeared satisfied.
[33] I would, for these reasons, reject the applicants' first point.
(b) Mr. Burianski's Birth Certificate
[34] The record does not substantiate, in my opinion, counsel for the applicants' complaint that the veracity of Mr. Burianski's birth certificate was not raised at the hearing.
[35] Identity had been identified prior to the hearing and throughout the hearing as a major issue. The issue of the stamp on the birth certificate was discussed (see transcript pages 191 to 194). At the transcript page 196, the presiding member was asked by Mr. Burianski whether he believed it was a good document with the presiding member answering "I am not saying that necessarily. I'll have to think about it."
[36] There were other features to Mr. Burianski's birth certificate which led the tribunal members to give it little or no weight such as the typing of the birth certificate being over the stamp.
[37] I am satisfied the applicants were reasonably put on notice by the tribunal the validity of the birth certificate was in issue as was the whole issue of who they were and whether they were married.
(c) A Misreading of Evidence
[38] Counsel for the applicants points to an erroneous conclusion of fact concerning the applicants staying in the house for a period of three years before their flight to Canada. He is correct to say Mr. Burianski did not testify to being closeted in his house for three years. He did say, however, he did not go out much, would not go out after dark and would not stray far from the building they lived in.
[39] I accept counsel for the applicants' view of Mr. Burianski's testimony. However, even with this view, the tribunal's finding does not constitute an error warranting this Court's intervention. The reason is found in the Supreme Court of Canada's decision in Boulis v. The Minister of Manpower and Immigration), [1974] S.C.R. 875 in the following words written by Justice Laskin, as he then was, speaking of the Immigration Appeal Board:
Its reasons are not to be read microscopically; it is enough that they show a grasp of the issues that are raised ... and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board's conclusions.
[40] What the Supreme Court of Canada is really telling us in Boulis, supra, is that the Courts are not to parse a tribunal's reasons but rather seek to understand what fundamentally motivates the decision relying on the record as substantiation.
[41] Adopting this perspective, as I see it, what troubled the tribunal on this point was why the applicants had waited three years before fleeing and the applicants' answer on their restrictive self confinement did not satisfy them. The record supports the tribunal's view.
CONCLUSION
[42] The approach mandated by Boulis leads me to accept the basic argument made by counsel for the respondent as to the essence that this decision turns on the central issue of credibility both as to the applicants themselves or the lack of sufficient and credible evidence to establish the basic elements of their claim.
[43] On the nature of credibility findings, it is appropriate to recall what Justice McDonald wrote on behalf of the Federal Court of Appeal in Secretary of State of Canada v. Siad, [1997] 1 F.C. 608 at 620:
Despite the hearsay frailties of Professor Samatar's evidence highlighted in the reasons of the presiding Judge, the Tribunal was entitled to find this evidence credible and trustworthy, and to base its decision upon it. The Tribunal is uniquely situated to assess the credibility of a refugee claimant; credibility determinations, which lie within "the heartland of the discretion of triers of fact", are entitled to considerable deference upon a judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence. In this case, the credibility determinations were made with regard to the evidence and the Tribunal gave reasons to prefer Professor Samatar's evidence to that of the respondent, as it is required to do.
[44] A review of the tribunal's reasons and of the evidence demonstrates the tribunal made credibility findings as to the applicants' testimony stating at page 6 it "has grave reservations about trusting anything that these claimants tell us". The tribunal made several implausibility findings related to (1) the adult claimants' explanation as to why they said they were single in their Point of Entry notes and answered not/applicable as spouses in their notification of claim; (2) the mixup in 1997 or 1998 as to the major persecutory event suffered by Ewa Kendzierska; (3) their delay in fleeing Poland; (4) credibility surrounding identity issues.
[45] It cannot be said these credibility findings are patently unreasonable.
[46] Since I find the tribunal did not err in finding the applicants had not made out their case on persecution, I need not examine the issue of state protection.
[47] For all of these reasons, this judicial review application is dismissed. No certified question arises.
"François Lemieux"
JUDGE
OTTAWA, ONTARIO
July 26, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5079-01
STYLE OF CAUSE: Piotr Burianski and others
- and -
Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: July 15, 2002
REASONS FOR ORDER : the Honourable Mr. Justice Lemieux
DATED: July 26, 2002
APPEARANCES:
Mr. Mike Bell FOR APPLICANT
Mr. John Unrau FOR RESPONDENT
SOLICITORS OF RECORD:
Bell, Unger, Morris FOR APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada