Date: 19980615
Docket: IMM-3576-97
OTTAWA, ONTARIO, JUNE 15, 1998
PRESENT: THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
BETWEEN:
ANDREI ABRAMOV,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is granted. The Board's decision is quashed and the matter is remitted to a differently constituted panel for redetermination.
"Danièle Tremblay-Lamer"
JUDGE
Date: 19980615
Docket: IMM-3576-97
BETWEEN:
ANDREI ABRAMOV,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board"), wherein it was determined that the Applicant is not a Convention refugee.
The Applicant is a citizen of Russia, who fled his home country to evade military service. He was first summoned to register for military duty in Chechnya in December 1994. Opposing the Russian intervention in Chechnya, he chose to ignore the summons. As a result, he was forcibly taken from his home by military officials, declared fit to serve and ordered to report in a week, which he failed to do.
Two other summons were eventually sent to the Applicant. He ignored both of them and was confronted again by the military. He managed, however, on both occasions to avoid conscription.
In support of his refugee claim, the Applicant alleged that if he returned to Russia, he would be persecuted for having avoided military service, by being forced to serve in the military and by being harassed by officers and soldiers who would know that he tried to evade conscription.
The Board, however, was not convinced that this would be the case. Relying on a TASS article whose source was a General of the Russian army, the panel found that the documentary evidence did not support the contention that the Applicant would be forced to serve in the military. Rather, the article indicated that only a small percentage of draft dodgers faced criminal proceedings and among these, only a few were actually sentenced. The vast majority of dodgers were imposed administrative penalties.
Furthermore, the Board held that the Applicant's own experience accorded with this documentary evidence. In the Board's view, the Russian authorities were not overly preoccupied with ensuring that the Applicant complete his military service. Otherwise, they would not have released him after detaining him on several occasions. Had he genuinely been sought by the authorities, he would have been conscripted at the first possible occasion. Hence, the Board concluded that the Applicant feared prosecution rather than persecution.
The Applicant takes issue with the Board's finding that he did not face persecution for having avoided military service. He argues that the Board did not take into consideration relevant documentary evidence, in particular the letter of Lisa Schwartzman, a journalist.[1] Ms. Schwartzman, who has researched army conditions, is of the opinion that recruitment officers are especially brutal towards dodgers. Specifically, she writes:
Pyotr Kaznacheyev, leader of Moscow's Anti-Fascist Youth Action organization (which actively participates in the anti-war movement, organizing protests and helping draftees to dodge) said in an interview that because the situation with Russia's army is so chaotic that the draft-evasion problem, which has crippled the army, causes recruitment officers to be especially brutal towards dodgers. That is, arbitrary punishment is common to make examples of particular dodgers and send a message to other would-be dodgers. Once they have been found, dodgers can expect harassement of themselves and their families, brutal beatings, threats, unlawful punishments, and particularly harsh service once they are forced into the army.[2]
I agree with the Applicant. The Board did commit a reviewable error in ignoring material evidence which contradicted its finding.
In light of the jurisprudence that recognizes that punishment of undue proportion by the state for military evaders can be considered persecution,[3] the Board should have explained why it gave more weight to the evidence of a General of the Russian army, instead of evidence from objective sources. Ms. Schwartzman's letter and other credible documentary evidence which describe the situation of recruits in the Russian army are directly relevant to the issue before the panel and should have been addressed in its decision. As stated by Gibson J. in Atwal v. Canada (Secretary of State):[4]
It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision.[5]
In light of the above, I do not need to consider other arguments raised by the Applicant.
The application for judicial review is granted. The Board's decision is quashed and the matter is remitted to a differently constituted panel for redetermination.
Neither counsel recommended certification of a question in this matter. Therefore, no question will be certified.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
June 15, 1998
TRIAI DIVISION
NAMF OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3576-97
STYLE OF CAUSE: Andrei Abramov v. M. C. I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 11, 1998
REASONS FOR ORDER BY:The Honourable Madame Justice Tremblay-Lamer
DATED: June 15, 1998
APPEARANCES:
Mr. Harvey Savage for the Applicant
Mr. Jeremiah Eastman for the Respondent
SOLICITORS OF RECORD:
Mr. Harvey Savage
Toronto, Ontario for the Applicant
Mr. George Thomson
Deputy Attorney General of Canada for the Respondent