Seifelmlioukova v. Canada ( Minister of Employment and Immigration )
IMM-4321-93
Denault J.
3/8/94
4 pp.
Applicant Islamic Tatar from Crimea -- Claiming persecution based on race, nationality, religion, membership in particular social group -- Convention Refugee Determination Division finding not Convention refugee -- Holding on "balance of probabilities" no objective basis to support claim in subjective fear, and no "reasonable chance" claimant would face persecution for any of grounds stated in definition of Convention refugee if returned to Russia -- Applicant maintaining "on balance of probabilities" standard of proof too high -- Respondent replying Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.) not rejecting "balance of probabilities," but merely adding "reasonable chance" to which tribunal referring -- Arguing tribunal using right test elsewhere and mention of "balance of probabilities" at end merely "slip of tongue" -- Applicant submitting test for determining whether applicant having well-founded fear of future persecution upon return to Russia one of "reasonable chance," "serious possibility" or "good grounds," threshold of which lower than "balance of probabilities" -- Application dismissed -- To find use of "balance of probabilities" amounting to mere slip of tongue suggesting "balance of probabilities" wrong test for weighing evidence before Board but that in this instance, and upon reading of Board's reasons as whole, Board properly evaluating evidence before it -- "Balance of probabilities" test for determining objective well-foundedness of applicant's fear of persecution not completely ousted by Adjei and Ponniah v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 241 (F.C.A.) -- Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) supporting this view -- Issue becoming at what stage in analysis does each test apply -- Resulting possible type of analysis artificial, with little relevance to context of refugee determination process -- Might also involve further compartmentalization of Convention refugee definition which ought to be viewed as whole, each of elements inextricably linked with each other and reality of applicant's situation -- Regardless of which interpretation of tests set out in Adjei correct and without deciding whether Board's expression of test correct, Board not making any improper finding or reviewable error -- Serious question of general importance certified for consideration by Court of Appeal: at what stage in analysis of objective basis of fear of persecution does "balance of probabilities" test apply and at what stage does "reasonable chance" test apply?