Date: 20020917
Docket: IMM-5791-01
Neutral citation: 2002 FCT 982
Toronto, Ontario, Tuesday, the 17th day of September, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
VITALIY PETLYUCHENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated August 2, 2001, wherein the Applicant was determined not to be a Convention refugee.
[2] The Applicant is a Jewish refugee claimant from the Ukraine who based his claim on a well-founded fear of anti-Semitic persecution. In rejecting the claim, the CRDD concluded that there was insufficient credible or trustworthy evidence, specifically, the panel found that the Applicant had not established that he is Jewish.
[3] To prove his Jewish ethnicity, the Applicant supplied copies of his Ukraine identity documents. The CRDD found that the copies were poor. The CRDD questioned the Applicant as to why he did not bring the originals with him to Canada, to which the Applicant answered that he did not know he would have to verify his nationality. The Applicant also supplied documentary proof that he could not obtain the originals while in Canada because they could not be sent through the mail from the Ukraine. This explanation was not accepted by the CRDD, and in reaching this conclusion, referred to the fact that there is easy availability of false documents coming from the former Soviet Union. As a result, the CRDD effectively decided that the copies of the identity documents tendered by the Applicant were not admissible.
[4] To this point, I find no error on the part of the CRDD. The CRDD's refusal to accept the copies of the identity documents set up the situation that, without documentary evidence, the Applicant had the onus of providing proof of his ethnicity in some other way. In this situation, proof can be provided from an Applicant's evidence, if it is found to be credible.
[5] The problem in the present case is that the evidence the Applicant gave was disbelieved by the CRDD because it did not match its understanding of what might be expected. Thus, the key to the decision under review is the standard applied by the CRDD in rejecting the Applicant's evidence, which it did without actually making a precise credibility finding.
[6] Two evidentiary issues are cited in the following passage of the CRDD's reasons at pp. 2-3:
Furthermore, the claimant provided historically inconsistent testimony. He states he went to Synagogue 10 to 12 times before the collapse of the Soviet Union. Documents (Exhibit R-1, CRDD Information Package: Ukraine, items 1.2 - 1.7 and item 3.1) suggest that such activity would be highly improbable. He was also unaware of the number of Jews who perished in the Holocaust. The panel finds the claimant's lack of information surprising, given that his mother allegedly insisted his documents carry her ethnicity (Jewish) and maintained some traditions. The panel believes that given such a commitment to ones nationality/religion in the face of alleged persecution, it is reasonable that the claimant would know of the most significant instance of persecution in Jewish history.
With respect to Jewish customs and traditions the claimant had extremely limited knowledge.
(Emphasis added)
[7] During the course of oral hearing, Document "3.1" which was referred to by the CRDD was supplied by counsel for the Respondent. In my opinion, this document does not supply clear evidence that is capable of substantiating the "highly improbable" finding made by the CRDD.
[8] In addition, I find it difficult to understand how a test of knowledge on a single fact such as "the number of Jews who perished in the Holocaust" can impugn the otherwise unchallenged testimony of an Applicant. It is agreed that, in a situation such as the one in the present case where effectively the CRDD says that the Applicant is lying, the CRDD must give cogent reasons for reaching this conclusion. In my opinion, the CRDD's decision is devoid of this requirement. Making a finding that a statement is "highly improbable" or "surprising", without detailing the evidence relied upon, is not sufficient.
[9] Therefore, I find the decision is made in error of law.
ORDER
Accordingly, I set aside the CRDD'S decision and refer this matter to a different panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5791-01
STYLE OF CAUSE: VITALIY PETLYUCHENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, SEPTEMBER 17, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: TUESDAY, SEPTEMBER 17, 2002
APPEARANCES: Mr. Peter Woloshyn
For the Applicant
Mr. Robert Bafaro
For the Respondent
SOLICITORS OF RECORD: Mr. Peter Woloshyn
Yallen Associates
204 St. George Street, 3rd floor
Toronto, Ontario.
M5R 2N5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020917
Docket:IMM-5791-01
Between:
VITALIY PETLYUCHENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER