Date: 19990208
Docket: IMM-1721-98
BETWEEN:
DMITRIY LAVRINENKO
VALERIYA LAVRINENKO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division ("CRDD"), according to which Valeriya LAVRINENKO and Dmitriy LAVRINENKO (the "Applicants") are not Convention Refugees.
FACTS
[2] The Applicants are Ukranian citizens and are husband and wife. They claim to have a well-founded fear of persecution based on the fact that Mrs. Lavrinenko"s mother was Jewish. Mrs. Lavrinenko claims in her Personal Information Form (PIF) and again in the affidavit filed for this judicial review, that she has been subjected to anti-semitic discrimination most of her life. Her husband, who is an artist, claims that because of his wife"s nationality he was not able to exhibit his work in expositions; he is no longer permitted to work with precious metals; and the Salon des arts unilaterally terminated his contract and refused to sell any more of his pieces.
[3] The Applicants allege that in 1992 nationalists set fire to the entrance of their apartment and threw a tear gas cannister through the window. Anti-semitic messages were painted on their door.
[4] In 1995, they allege that nationalists came to their home and ordered the husband to renounce his wife because of her nationality. When he refused to do so, both the Applicants were beaten and their home was vandalised. The police were notified, but did not follow up on the investigation.
[5] In October of the same year, nationalists again came to their home and beat the husband. He was hospitalised as a result, but again the police did nothing.
[6] In February 1996, the husband left the Ukraine for the United States, the wife on September 15, 1996. The Applicants stayed in the United States, for 13 and 6 months, respectively. They explained that they were waiting for their son so they could come to Canada together. However, he was unable to obtain a visa and could not join them.
[7] Both of the Applicants arrived at the Canadian border and declared themselves to be Convention refugees on March 15, 1997.
ANALYSIS
[8] Under Section 18.1(4)d) of the Federal Court Act,1 this Court may intervene where the Board has based its decision on an erroneous finding of fact that it made without regard to the material before it. In my opinion, this is such a case.
[9] The refugee board concluded that the applicant"s claim was not credible based on the premiss that a person who has hidden her Jewish identity all her life would not decide to expose herself and her family to discrimination at a time when antisemitism is at its peak.
[10] This conclusion is not supported by the evidence. Nothing in the record of evidence before the board suggests that she hid her Jewish identity. On the contrary, the applicant consistently alleged that she was discriminated against all her life because of her mother"s Jewish origin. In addition, her PIF details numerous events of discrimination throughout her life.
[11] Further, in her affidavit evidence, provided in support of the application for judicial review, the applicant confirms that she has suffered discrimination all her life. She also clearly states that she never hid her Jewish nationality and that in fact to do so would be impossible since it is mentioned on all her identity documents.
[12] Although passports in the Ukraine no longer specify an individual"s nationality, this is a relatively recent development. Further, the Applicant"s birth certificate plainly states that her mother"s nationality was Jewish.
[13] Accordingly, the Board"s finding cannot stand, as an essential part of its decision was either made without regard to the evidence before it, or it was based on an erroneous finding of fact.
[14] The judicial review is allowed and the matter is remitted to a different panel for redetermination.
[15] Neither counsel recommended certification of a question.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
February 8, 1999.
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