Digests

Valtchev v. Canada (Minister of Citizenship and Immigration)

IMM-4497-99

2001 FCT 776, Muldoon J.

6/7/01

23 pp.

Judicial review of CRDD decision applicant not Convention refugee--Applicant citizen of Bulgaria, claiming to be of Roma (gypsy) ethnicity--Alleged Bulgarian police, civic officials trying to evict him, family from apartment in Sofia because Roma--Testified unwilling to leave apartment because after previous eviction waited four years to secure new accommodation--Testified in attempt to evict him mother improperly incarcerated in mental asylum where she died, and that he was abducted, savagely beaten, jailed without authority, brought back from work assignment abroad in Russia--Stated apartment rigorously searched, family repeatedly interrogated while lawyer's efforts to secure justice futile--Testified as to continuing effort to compel applicant to sign statement voluntarily relinquishing apartment, parallel effort to seize copies of all of applicant's complaints to various government officials--CRDD concluded not likely applicant Roma, or if was, personal attributes, including appearance, assimilation into Bulgarian population, reduced risk of persecution to mere possibility--Also determined applicant not reliable, trustworthy; held left Bulgaria for economic reasons, not because of fear of persecution--Application allowed--(1) CRDD erred in finding applicant not credible--Conclusion applicant not credible permeated entire analysis--Not applying presumption of truthfulness from Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.) to applicant--Tribunal may make adverse findings of credibility provided inferences drawn can reasonably be said to exist--Plausibility findings should only be made in clearest of cases i.e. if facts presented outside realm of what could reasonably be expected, or where documentary evidence demonstrating events could not have happened in manner asserted--Tribunal must remember actions which appear implausible when judged from Canadian standards might seem plausible when considered from within claimant's milieu--Findings of implausibility must refer to relevant evidence: Leung v. Canada (Minister of Employment and Immigration) (1994), 81 F.T.R. 303 (F.C.T.D.)--Must not be based on Canadian paradigms: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.)--In asking why regime, so arbitrary, lawless in basic character as to repeatedly abduct, beat applicant would be so fastidious about having him sign apartment release, CRDD may have been falsely applying Canadian paradigm--Throughout decision CRDD asking applicant to explain authorities' actions, categorically rejecting answers--CRDD positing theory applicant's conflict with authorities started because mother's mental condition causing her to become danger to herself, neighbours--As no evidence supporting this conclusion, pure speculation--CRDD stating, without evidence, could not believe neighbour would deliberately start fire to blame applicant's mother--Finally, wrongly blaming applicant for predicament because complaints intemperate, defamatory, evinces degree of callousness, possible bias by CRDD--When discussing applicant's credibility, CRDD omitting evidence supporting claim--Applicant explained neighbours knew of Roma ethnicity from apartment registry--CRDD erred when stated no reference to applicant's ethnicity on extract from registry card since, in fact, card clearly indicating "Roma family" in top left corner--CRDD mischaracterized evidence regarding children's interrogation--Applicant testified minor children interrogated by prosecutors without presence of either parent, lawyer--CRDD stated applicant not answering comment son not minor at time, when in fact applicant clearly indicating reference to daughter who was minor at time of interrogation--CRDD noted applicant overly assertive, bombastic, shouted to emphasize points--In assessing speaking style, stated applicant verbose, voluble, prolix--In assessing manner in which delivered answers, CRDD stated testimony wooden, declamatory, rehearsed, unspontaneous--CRDD contradicted itself when observed testimony rambling, off-centre, evasive--CRDD apparently held applicant's personality against him, forgetting claimants from different cultural backgrounds may act, express themselves differently--(2) CRDD erred in assessing ethnicity--CRDD failed to have regard to totality of evidence--No adequate explanation of why CRDD omitted documents from preview--Rejection of documents as "problematical" difficult to accept, given importance of evidence to claim--In stating applicant indicating did not know whereabouts of earlier baptismal certificate, CRDD mischaracterized evidence as, in fact, applicant stating parents lost original--CRDD engaging in speculation when CRDD admitting no precise information surrounding birth requirements in Bulgaria during period in which claimant born, but impugning applicant's version of events--Omission from review without explanation of letter from former member of Parliament referring to applicant as Roma, error since patently unreasonable--CRDD observed applicant had fair complexion, blue eyes rather than dark eyes, dark-skinned appearance ascribed to Roma--Applicant asserting had green eyes--CRDD admitted no experience regarding Bulgarian Roma, yet dismissed claim in part because of appearance--Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 holding appropriate when considering claims to refugee status based on any of grounds set out in definition also to consider perspective of persecutor, because determinative in inciting persecution--Analysis applicant safe because other Bulgarians would not recognize him as Roma incomplete--That authorities, source of applicant's problems, already determined applicant Roma, sufficient reason for CRDD to consider risk at their hands as well as at hands of other Bulgarians--CRDD not addressing matter from point of view of potential persecutors--(3) CRDD erred in assessing applicant's delay in claiming refugee status--Not believing applicant's explanation for seven-week delay in United States before making way to Canada to claim refugee status--Applicant clearly explaining convinced Canada accepting refugees more easily--Nothing implausible about applicant obtaining job in United States to pay for visa to come to Canada--Characterization of seven-week delay as painting picture of "opportunistic, untrustworthy witness" implies dishonesty on applicant's part, amounts to speculation--Statement applicant "doubtless heard" about movement of Czech Roma to Canada difficult to accept as applicant Bulgarian, not Czech, and no evidence before CRDD to allow such inference--In absence of evidence, characterization of applicant as opportunistic, untrustworthy, patently unreasonable--Seven weeks not unreasonable time to get bearings in strange country--(4) CRDD demonstrated reasonable apprehension of bias towards applicant--Negative description of applicant's demeanour but one aspect of pattern raising reasonable apprehension of CRDD's probable bias against applicant--CRDD's refusal to accept applicant's testimony, combined with errors in reviewing documentary evidence appearing to favour applicant, and substitution of own version of events without evidence leading to conclusion CRDD biased--(5) CRDD's conduct amounting to special reasons for Minister to bear costs of this application under Federal Court Immigration Rules, 1993, SOR/93-22, R. 22.