IMM-4497-96
B E T W E E N:
OLGA TCHAYNIKOVA
MILENA RUBANOVSKA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD, J.:
The applicant seeks to set aside the decision of the Immigration and Refugee Board (the "Board") dated November 5, 1996, wherein the Board determined that the applicant is not a Convention refugee.
The Board concluded that the female applicant did not discharge her onus of proving that she is Jewish. The Board member stated in her reasons that she assigned no weight to the birth certificates of the female claimant and her mother, which were entered as an exhibit, noting that they are duplicates, not originals, and were quite recently obtained. The Board member added:
| In my opinion the female claimant did not discharge her onus of proving that she is Jewish. It have assigned no weight to the birth certificates of the female claimant and her mother, which were entered as part of Exhibit C-5. They are duplicates, not originals, and were quite recently obtained. I am aware, having heard many claims from the former Soviet Union, that false documents indicating Jewish ethnicity are commonly available. Further, I did not accept the female claimant's explanation of the loss of the originals or the replacement of them. According to her PIF the female claimant had moved from her mother's home in Ukraine to her father's home in Moldova in the mid 1980s to attend school there. She finished school in 1987. She was married briefly, had a child, and only returned to her mother's home for a matter of months during 1988/89. The PIF states that she returned to Benderi in early 1989 and obtained her hairdressing position. It does not seem plausible to me that the female claimant would have left her birth certificate at her mother's home until the fall of 1990, when the vandalizing of her mother's apartment allegedly took place, instead of keeping it herself, but then would have made the effort to replace it less than six months late, in April 1991. I also find the explanation of why her mother waited until 1993 to replace her birth certificate to be somewhat at odds withe the claimant's actions. The testimony was that her mother had an internal passport, and therefore did not need her birth certificate. Why, then did the claimant allegedly replace hers so quickly? |
| Also, the evidence about the documents being burned in the sink in her mother's apartment seemed contrived to me. It was too convenient an excuse for not having either her mother's or her own original birth certificates available. |
Counsel for the applicant did not dispute that the Board member could make use of the experience gained by her in the exercise of her duties on the Board. However, counsel argued that the member should have advised the applicant of her specialized knowledge.
However, the Board's decision turned on its assessment of the credibility of the female applicant. The female applicant was put on notice at the outset that the hearing would focus on the ethnicity of the female applicant and her credibility. She was aware of these issues. The burden of establishing a refugee claim was on the female applicant.
The Board's finding of credibility was based on all the evidence. The Board did not find credible or plausible the female applicant's evidence concerning:
| a) the explanation for the loss of the originals or the replacement of them; |
| b) the plausibility that the female applicant would have left her birth certificate at her mother's house after she had moved out, instead of keeping it herself; |
| (c) the explanation why her mother waited two years to replace her birth certificate; and |
| (d) the evidence about the documents being burned in the sink in her mother's apartment seemed contrived. |
Based on all the evidence the Board member concluded:
| As I do not accept the female claimant is Jewish, it follows that I do not accept that she and her family members experienced anti-Semitic actions or discrimination directed at them. I think that the evidence concerning such acts was concocted by the adult claimants in the hopes of creating a successful claim. |
The Board is not required to bring to a claimant's attention every reservation held or implausibility found in reflecting upon the applicant's testimony as a whole, before its decision is made1. In any event, in the present case, the adverse finding of credibility was based on all the evidence and not solely on the experience of the Board member.
Accordingly, the application for judicial review is dismissed.
"John D. Richard"
Judge
Toronto, Ontario
May 8, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4497-96
STYLE OF CAUSE: OLGA TCHAYNIKOVA ET AL.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: MAY 7, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: RICHARD, J.
DATED: MAY 8, 1997
APPEARANCES:
Mr. Hart A. Kaminker
For the Applicants
Ms. Marissa Beata Bielski
For the Respondent
SOLICITORS OF RECORD:
Mamann, Kranc
410-212 King Street West
Toronto, Ontario
M5H 1K5
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-4497-96
Between:
OLGA TCHAYNIKOVA ET AL.
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 See: Akinlolu v. M.C.I. (IMM-551-96) per MacKay J.