Date: 20021115
Docket: IMM-4914-01
Neutral citation: 2002 FCT 1189
Ottawa, Ontario, this 15th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ANDREY (ANDRIY) MYKHAYLOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, in respect of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated September 26, 2001, (date of Notice of Decision) wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant seeks an order setting aside the decision of the Board.
Background
[3] The applicant is a citizen of the Ukraine. He claims a well-founded fear of persecution on the basis of his religion - a Jehovah's Witness. He claims to have been the subject of verbal and physical abuse as a result of his faith.
[4] According to the applicant's Personal Information Form ("PIF"), the applicant started practicing his faith in 1997. He claims that in January 1998, he was attacked and hospitalized for two weeks. He complained to the police, but his application was ignored. In March 1998, he was attacked in public. Someone called the police and they took him into custody until he paid a bribe. He complained to the prosecutor's office, but the office did not assist him and sent him away. In April 1998, he received threatening letters and phone calls almost every night. The police would not do anything and told him to forget his religion. Again, in May 1998, he claims he was beaten up outside the area where he lived and was forced to sing orthodox songs. When he refused, he was beaten and tortured. He gave up and sang the songs but as his singing was not good, he was beaten again. After five hours, he was left alone and passed out.
[5] The applicant went to the police and the prosecutor the next day, but could not obtain help. He left the Ukraine for the sake of his safety and landed in New York, U.S.A., in June 1998.
[6] Upon arrival in the United States, he sought the assistance of Russian-speaking people. He found a man, Sergei, who was willing to assist him and gave him a job in Rhode Island. After some time, he sought out the Russian evangelical community in Rhode Island. They informed him that while refugee asylum based on religious persecution would not be available in the United States, it might be available in Canada.
[7] He then travelled to Canada, via Detroit, on December 13, 1999. He joined the Russian congregation of the Jehovah Witnesses, in Toronto, one month later. The applicant submitted a claim for refugee protection in January 2000.
[8] In its reasons, the Board expressed serious concern about the applicant's credibility. To begin with, the Board was not convinced that he was a Jehovah's Witness. It stated:
The onus is on the claimant to establish a well-founded fear of persecution for a Convention ground. In the panel's opinion, the claimant has not discharged that onus. The panel makes a general finding of lack of credibility and determines that there is insufficient credible or trustworthy evidence on which to base a positive decision.
[9] The Board preferred the documentary evidence to that of the applicant. It found that there was no evidence of attacks against individual parishioners, but rather there was a general trend in the Ukraine toward increased acceptance of different faiths, including Jehovah's Witnesses.
[10] The Board found that the applicant had not provided sufficient evidence to justify a claim of a well-founded fear of persecution on the basis of religion. As such, it denied the applicant's claim.
Applicant's Submissions
[11] The applicant submits that the Board erred in law by basing its findings on mistakes of fact.
[12] The applicant further submits that the Board erred in law by ignoring oral and documentary evidence, specifically with regard to the oral testimony of the applicant's witness, Mr. Beulik.
Respondent's Submissions
[13] The respondent submits that the Board has committed no error of law or fact, and that the finding is within the jurisdiction of the Board.
[14] The respondent further submits that the applicant has not demonstrated that there is an issue that should be the subject of review.
[15] Issues
1. Did the Board make a reviewable error in finding that the applicant was not credible?
2. If the Board made an error with respect to credibility, was the error material since the Board also found that the applicant's fear was not well-founded?
[16] Relevant Statutory Provisions
The following relevant sections of the Immigration Act, R.S.C. 1985, c. I-2, as amended, state as follows:
| 2.(1). . ."Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), . . . |
2.(1) . . . « réfugié au sens de la Convention » Toute personne: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). . . . |
| 67. (1) The Refugee Division has, in respect of proceedings under sections 69.1 and 69.2, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. |
67. (1) La section du statut a compétence exclusive, en matière de procédures visées aux articles 69.1 et 69.2, pour entendre et juger sur des questions de droit et de fait, y compris des questions de compétence. |
Analysis and Decision
[17] The Board made a finding of a general lack of credibility against the applicant and based the finding on the following particulars:
1. The Board stated that the applicant said that a church member would usually be baptized within six months of joining the church. The applicant had become a Jehovah's Witness in 1997 and was not baptized as of February 13, 2001.
2. The applicant did not have a "no blood transfusion" card.
[18] Not Being Baptized
The applicant, when questioned, stated at pages 172 to 173 of the Tribunal Record:
COUNSEL: Can you give us some indication of, you know, when you think you may be Baptised or what is required to be Baptised or why you're not Baptised?
CLAIMANT: Well, usually it's only once in six months which is when the procedure of Baptising is carried out and usually it is done in the framework of four of a Congress and Baptising isn't just a ritual. It's a promise one gives to God, to carry out his word and to carry it into the people. Baptising symbolises the readiness and awareness of the person to do what he began doing even before under the guidance of God and that is to preach and every Witness preaches before he's actually Baptised.
[19] The applicant's witness, Walter Boulelik, an elder in the church, gave the following evidence at pages 182 to 183 of the Tribunal Record:
COUNSEL: Okay. Is there a reason why he's not Baptised?
WITNESS: Because we have - - I have with Andriy Bible study. We have a book, like knowledge and after the book we give the time, maybe three, four, six months and we see how people progress and after if person good progress he go to the first step. It's Unbaptised published and after this first step it will be Baptised person [sic].
COUNSEL: So, where would Andriy be on this journey? Is he Unbaptised yet or not yet?
WITNESS: He ask about this, but I was in Ukraine and I just back maybe few months ago, but here I did to the Unbaptised published [sic].
COUNSEL: He is?
WITNESS: He's ready.
COUNSEL: He's ready?
WITNESS: Yes, he's ready.
And at pages 190 to 191 of the Tribunal Record:
PRESIDING MEMBER: Okay. I have a couple of questions. From the time that somebody becomes a Witness what is the usual length of time before they are actually Baptised?
WITNESS: What time before Baptise?
MS. ROWSELL: How long?
WITNESS: How long? Usually from one year to two years. It's approximately. How a person progress, how person feel, but it's better two years because this is time show good for us because if person after one year tell okay, I want to Baptised and after he change mind or she. Elders doesn't want to tell okay, you go or you must. Some religion has okay, some tell, you know, ten days or one month, but we don't have. Sometimes from one to three years to four years [sic].
PRESIDING MEMBER: Would it be ever longer than three years? I mean, how long could it be before - - how long could it be? Is there a limit of time?
WITNESS: It's approximately from one to two years is good time. But sometimes happen three years, sometimes four years. It depends. Nobody can tell a person okay, you must go or you're ready because this like swear, like promise to God, I do this, I do this and some people decide after six months oh, I'm ready, but Elders see and tell okay, hold on [sic].
[20] The evidence of the applicant did not state that a person who joins the Jehovah's Witnesses would be baptized within six months of joining. He stated that baptisms only took place once every six months. The witness, Mr. Boulelik, an elder in the church, testified that people who joined the church were usually baptized in one to two years, but it could take three or four years. I find that it was patently unreasonable to use the fact of not being baptized as a basis to find the applicant not credible.
[21] Lack of "No Blood Transfusion" Card
The Board stated as follows at page 2 of its decision:
. . . In addition, the claimant did not have a "no blood transfusion" card. As this is a very fundamental part of the religion, he was asked why he did not have one. His response was that they were issued only after baptism. The Elder testified that one can sign a form and that this was recommended to the claimant, but that he did not do this. Based on these two significant elements in the practice of the Jehovah's Witness religion, and given that the claimant could not satisfactorily explain either, the panel concludes that the claimant was not a Witness in Ukraine, and further that he has not taken the steps in Canada that would have been expected of a Witness.
[22] The applicant's witness, Mr. Boulelik, further testified at pages 191 to 192 of the Tribunal Record:
PRESIDING MEMBER: Okay. In terms of the blood card that you have at what point in time are people asked to sign or carry one of these cards?
WITNESS: This is question about my blood card?
PRESIDING MEMBER: Yes?
MS. ROWSELL: Well, when would a congregate carry a card? Like, when would they start to carry a card like that?
WITNESS: It's after Baptised.
PRESIDING MEMBER: After?
WITNESS: Baptised.
MS. ROWSELL: But this gentleman hasn't been Baptised yet, so why does he have a card?
COUNSEL: No, it's his card.
WITNESS: It's my card. It's no [sic] his.
PRESIDING MEMBER: So again, I guess something I'm having trouble to understand is, if someone adopts the tenets of the religion and yet they don't have a blood card then it would seem to me that there would be a possibility that something could happen and they could get a transfusion and without a blood card in their possession they could wind up having a transfusion? That's the purpose, I think of having the blood card. So, what I'm wondering is, like, why people don't get the blood card right away or very soon after they agree to be Witnesses, even if they aren't Baptised?
WITNESS: We have a special article for this for child. For example, you have a small card for child and like if you see my card it's after Baptised [sic].
PRESIDING MEMBER: Yes?
WITNESS: But person like Andriy can have like no this card, no copy this card, but he can put his for like letter, I will not this, this, this, I don't want a transfusion and like need two, three witnesses. If he want this he can do any time and I can sign and put my address and another people can sign and we recommend this and this is my fault. I didn't speak with him about this because nobody knows what happen tomorrow and Andriy need this card. You're right. Need some letter, no like card. Letter. But we do this. He can print from his, I want this and I don't want this. It's signed like blood card [sic].
[23] Based on the above evidence, I find that it was patently unreasonable for the Board to use the lack of a "no blood transfusion" card or letter to find that the applicant was not credible.
[24] The Board also stated at page 6 of its decision:
. . . The panel notes that the claimant has been allegedly involved with the Jehovah's Witness congregation in Canada for approximately one year. The panel notes that at the time of the hearing in May 2001, the claimant had not yet been baptised, nor, did he have a letter from the congregation confirming his membership. The panel drew a negative inference from the aforementioned facts.
[25] The evidence at the hearing was that the church no longer gives out letters. Mr. Boulelik testified at pages 183 to 184 of the Tribunal Record:
MS. ROSWELL: Do you have any business cards, sir, from Kingdom Hall?
WITNESS: We don't have them.
MS. ROSWELL: No.
WITNESS: And society before one, we don't have one.
MS. ROSWELL: Yes.
WITNESS: We don't have a business card and society recommend we don't. Before like one year they give some paper from congregation, but now society told no any papers. If you want to go to the court [sic].
MS. ROSWELL: If you want to go to court?
WITNESS: Yes, if you want to invite the court or if some people ask somebody doesn't okay. For example, if I tell I'm Elder, but who believe me I'm Elder. If some person ask me if you Elder how I know you're Elder, you don't have business card, you don't have any paper? We just told go to the society. We have a society branch in Georgetown and they ask, okay, well what position. I don't know they tell or not but they know - - - [sic]
[26] Apparently, the church no longer gives out letters. It is patently unreasonable to draw a negative inference from the fact that the applicant did not have a letter.
[27] The Board did not discuss or make a finding with respect to the remaining evidence given by the applicant, relevant to this application, other than its general credibility finding.
[28] I am accordingly, of the view that the Board made a reviewable error with respect to credibility.
[29] Issue 2
If the Board made an error with respect to credibility, was the error material since the Board also found that the applicant's fear was not well-founded?
I am further of the view that the error was material. I cannot predict what conclusion the Board might have reached had its credibility findings been different.
[30] The applicant for judicial review is allowed.
[31] Neither party wished to propose a serious question of general importance for certification.
ORDER
[32] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a differently constituted panel for reconsideration.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
November 15, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4914-01
STYLE OF CAUSE: ANDREY (ANDRIY) MYKHAYLOV
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, October 2, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Friday, November 15, 2002
APPEARANCES:
Mr. David Yerzy
FOR APPLICANT
Mr. Robert Bafaro
FOR RESPONDENT
SOLICITORS OF RECORD:
David Yerzy
Suite 108
14 Prince Arthur Avenue
Toronto, Ontario
M5R 1A9
FOR APPLICANT
Department of Justice
Suite 3400, Box 36, The Exchange Tower
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021115
Docket: IMM-4914-01
BETWEEN:
ANDREY (ANDRIY) MYKHAYLOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER