Date: 20000726
Docket: IMM-5912-99
OTTAWA, ONTARIO, THIS 26th DAY OF JULY 2000
| Before: THE ASSOCIATE CHIEF JUSTICE |
Between:
PETR GAVRYUSHENKO,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
ORDER
IN VIEW OF the plaintiff's application for judicial review of the decision by the Refugee Division of the Immigration and Refugee Board on November 15, 1999;
IN VIEW OF the written submissions of the parties and the hearing held in Montréal, Quebec on July 19, 2000;
THE COURT ORDERS THAT:
1. The application for judicial review is allowed.
2. The decision of the Refugee Division of the Immigration and Refugee Board on November 15, 1999 is quashed and the matter referred back to a panel of the Refugee Division with different members for re-hearing and decision.
| Allan Lutfy A.C.J. |
Certified true translation
Martine Brunet, LL. B.
Date: 20000726
Docket: IMM-5912-99
BETWEEN:
PETR GAVRYUSHENKO,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
LUTFY A.C.J.
[1] The plaintiff, a Russian national, is objecting to a decision by the Refugee Division which refused to grant him Convention refugee status. The plaintiff alleged a valid fear of persecution for his political opinions against the war conducted by Russia in Chechnya and his membership in a particular social group objecting to the fascist organizations operating in Russia.
[2] In particular, the plaintiff alleged three acts of persecution which he claimed were committed in 1995, 1997 and 1999. The tribunal concluded that the plaintiff's version was not credible.
[3] From my review of the transcript and the decision which is the subject of this application for judicial review, I am satisfied that the tribunal did not express itself in clear and unambiguous language in justifying its conclusion that the plaintiff's testimony was not trustworthy: Hilo v. Minister of Employment and Immigration (1991), 130 N.R. 236 (C.A.) and Okyere-Akosah v. Canada (Minister of Employment and Immigration) (1992), 157 N.R. 387 (C.A.). This Court must accordingly intervene. I will explain.
[4] At the start of its analysis of the case the tribunal saw fit to describe the plaintiff's testimony in these terms:
| [TRANSLATION] |
| The tribunal appreciates the candour with which the claimant testified, but it considers that the latter has not shown that he had a valid fear of persecution if he returned to his country. [My emphasis.] |
[5] After analysing the three acts of persecution mentioned by the plaintiff, the tribunal concluded as follows:
[TRANSLATION]
| The claimant is not a politician, he is not a member of any political party and he has not conducted any political or ideological campaign against the said nationalists. In these circumstances, the tribunal does not feel that the claimant would be targeted simply because of alleged conversations. |
| The tribunal considers that the claimant invented without any basis a history of persecution by UNR fascists which he never experienced. [My emphasis.] |
[6] On the one hand, the tribunal expressed its appreciation for [TRANSLATION] "the candour with which the claimant testified", and on the other, later in its reasons, concluded that [TRANSLATION] "the claimant invented without any basis a history of persecution". I have taken into account the defendant's argument that the tribunal, when it referred to his candour, had in mind the plaintiff's sincere convictions against the war in Chechnya. If that was the case, the tribunal should have said so clearly.
[7] Further, the tribunal made no reference in its reasons to the evidence submitted by the plaintiff of a series of events which he said were related to his fear of persecution and that occurred after his arrival in Canada in March 1999. Inter alia, the plaintiff filed certificates dealing with bodily injuries suffered in May 1999 by the family which took him in after the persecution incidents in 1997, the injuries to his daughter as the result of a sexual assault she suffered in August 1999 and the fire at his home on August 27, 1999.
[8] If the tribunal thought that his documents were forged it should have said so, and would have had some difficulty concluding that the plaintiff's testimony was candid. On the other hand, if the tribunal did not question the veracity of the information contained in his documents, it should have provided a clear and unambiguous explanation of its refusal to accept the connection between those events, which the plaintiff claims occurred after his arrival in Canada, and the prior acts of persecution of which he complained.
[9] Finally, the tribunal had some question about the plaintiff's failure to claim refugee status in the U.S. in the three weeks immediately prior to his arrival in Canada, while the boat on which he was travelling was moored in the Port of New Orleans. Citing a judgment of this Court in Ilie v. Canada (Minister of Citizenship and Immigration) (1994), 88 F.T.R. 220, the tribunal concluded [TRANSLATION] "that a claimant should take the first opportunity he has to claim refugee status in a country which is a signatory of the 1967 Convention or Protocol".
[10] In my opinion, the tribunal would have arrived at a more correct interpretation of the decision in Ilie if it had referred to the comment of Prof. Hathaway in The Law of Refugee Status (Toronto, Butterworths, 1991) at p. 46:
| There is no requirement in the Convention that a refugee seek protection in the country nearest her home, or even in the first state to which she flees. Nor is it requisite that a claimant travel directly from her country of first asylum to the state in which she intends to seek durable protection. |
[11] My colleague MacKay J. gives the following explanation in Ilie, at para. 15:
| Finally, in my opinion the tribunal was entitled to consider his failure to claim refugee status in other countries while travelling from July 1992 to January 1993 in Europe, and to consider how the applicant's evidence was to be weighed in light of that. |
The fact that a person does not seize the first opportunity of claiming refugee status in a signatory country may be a relevant factor in assessing his or her credibility, but it does not thereby constitute a waiver of his or her right to claim that status in another country.
[12] In the circumstances of the case at bar, it is not up to this Court to rule on the plaintiff's credibility. Without drawing any conclusions as to the truth of the plaintiff's evidence, I am persuaded that his right to clear and unambiguous reasons respecting his credibility was not observed by the tribunal. Consequently, the application for judicial review is allowed, the decision of the Refugee Division quashed and the matter referred back to a panel of the Refugee Division with
different members for re-hearing. There is no basis for certifying a serious question of general importance.
| Allan Lutfy A.C.J. |
Ottawa, Ontario
July 26, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-5912-99 |
| STYLE OF CAUSE: PETR GAVRYUSHENKO |
v.
MCI
PLACE OF HEARING: Montréal, QUEBEC
DATE OF HEARING: JULY 19, 2000
REASONS FOR ORDER BY: LUTFY A.C.J.
DATED: JULY 26, 2000
APPEARANCES:
| MICHEL LE BRUN FOR THE APPLICANT |
| ANNIE VAN DER MEERSCHEN FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| MICHEL LE BRUN FOR THE APPLICANT |
Montréal, Quebec
| Morris Rosenberg FOR THE RESPONDENT |
Deputy Attorney General of Canada