Date: 20000609
Docket: IMM-2067-99
BETWEEN:
VLADIMIR KHAIOUTINE
(AKA VLADIMIR ALEXANDROVITCH KHAYUTINE)
GUENRIETTA KHAIOUTINA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Vladimir Khaioutine is 35 years old. Guenrietta Khaioutina is his 65 year old mother. Both are citizens of Russia. They claim Convention refugee status in Canada on the ground that they have a well-founded fear of returning to Russia by reason of their Jewish ethnicity.
[2] In a decision dated March 31, 1999, the Refugee Division of the Immigration and Refugee Board ("the Board") determined that the applicants were not Convention refugees.
[3] The Board made specific findings of credibility against each applicant.
[4] In finding that the applicants were not Convention refugees, the Board stated as follows:
| CONCLUSION |
| In light of the above, the panel is not persuaded that persecution for Convention reasons is imminent, if the claimants return to Russia. The panel finds that the fear they have expressed is not well-founded, and that they have not met the onus of establishing that there is a reasonable chance of being persecuted if they return to Russia, by reasons [sic] of their Jewish ethnicity, or for any Convention reason. |
| The panel further finds that there is no clear and convincing evidence that the state is unable to offer protection. |
[5] With respect to the finding of credibility made against Mrs. Khaioutina, her counsel argued persuasively that the Board contradicted itself in that having found that "in all probability the young perpetrators attacked the female claimant", the Board later went on to say "[t]he credibility of the allegation that the female claimant was beaten comes into question when one looks at the evidence".
[6] With respect to the finding of credibility made against Mr. Khaioutine, the Board observed that it was not until the day of the hearing that the claimant revealed that he is a doctor. This statement is not correct. In the first paragraph of the narrative portion of his Personal Information Form ("P.I.F."), Mr. Khaioutine stated "I was able to attend medical school in 1986". In the third paragraph of his P.I.F., Mr. Khaioutine spoke of his efforts to obtain a specialty in gynaecology. His P.I.F. disclosed that he received a medical doctor diploma.
[7] The Board went on to conclude from this alleged "late disclosure" and from "the only reasonable inference that can be drawn from the evidence, that the pull factor here is immigrating to Canada for economic reasons, and that the male claimant has fabricated this anti-semitic story in order to bolster his refugee claim". The Board then determined that "the female claimant is here in Canada, not to flee persecution for the reasons advanced, but to be with her son, the male claimant".
[8] I have reviewed the record before the Board and, in my view, the evidence before the Board did not justify the drawing of either inference. In the absence of such evidence, these conclusions were conjecture on the part of the Board.
[9] I conclude therefore that the Board erred in making its findings of credibility against each applicant.
[10] As to the effect of such error, counsel for the Minister, notwithstanding the position which had been taken in the respondent"s written memorandum of fact and law, advised in oral argument that he was not going to defend the Board"s findings of credibility because, and in any event, the Board"s decision should not be interfered with. The ground advanced by counsel for the Minister was that in the absence of clear and compelling evidence of the lack of state protection, the Board properly concluded that the applicants failed to establish that the state was unable to offer protection to the applicants.
[11] The substantial issue before me, therefore, is whether or not the Board"s conclusion that there was "no clear and convincing evidence that the state is unable to offer protection" is correct.
[12] As noted by Justice Pelletier of this Court in Zhuravlvev et al. v. The Minister of Citizenship and Immigration (IMM-3603-99, April 14, 2000), the effect of the decision of the Supreme Court of Canada in Canada (AG) v. Ward, [1993] 2 S.C.R. 689 is that the question of state protection must be considered twice when considering whether an individual falls within the definition of a Convention refugee. The first occasion is in relation to the question of a claimant"s well-founded fear of persecution. The second occasion is in relation to a claimant"s unwillingness or inability to avail himself or herself of state protection.
[13] The evidence of the applicants before the Board on the issue of state protection may be summarized as follows:
| i) In the summer of 1990, Mr. Khaioutine and his wife were beaten by a group of men and Mr. Khaioutine"s leg was broken (the Board erred in stating that the group of men had beaten Mr. Khaioutine and his mother). Mr. Khaioutine stated that he and his wife complained to the police, however, the police refused to act and accused him of fabricating the story. He said the police told him that they did not have enough resources to protect the Jews. |
| ii) In January of 1994, Mr. Khaioutine was required to pay money to strangers who told him that he was required to pay this money, because all Jews had to pay Russians for the courtesy of living on their land. Mr. Khaioutine stated that he went to the police to complain, however was told that there was no evidence of extortion. A few days later, on finding that he had gone to the police, the same people beat Mr. Khaioutine. |
| iii) In the spring of 1995, Mr. Khaioutine hired an accountant and asked her to provide documents for the purpose of checking her background. Mr. Khaioutine was then called by the accountant"s brother, who advised that he was a member of the "National Patriotic Organization", and told Mr. Khaioutine to leave his sister alone. The brother then threatened to extort money from Mr. Khaioutine. Mr. Khaioutine stated he complained to the police who said they would agree to help if Mr. Khaioutine was able to catch the brother in the act. It later developed that the brother was himself a policeman who threatened to arrest Mr. Khaioutine and his wife if they did not pay him money. Mr. Khaioutine"s wife phoned the police who abandoned any investigation when their colleague assured them that everything was alright. Mr. Khaioutine said that he then complained to the Commissioner of the St. Petersburg police. However, the matter was not pursued because the police could not identify the person who claimed to be a police officer. Mr. Khaioutine said that the Commissioner of police told him in person not to pursue the matter, as "criminals were on the loose", and the police could not provide 24 hour protection for Mr. Khaioutine and his family. |
| iv) In August of 1995, Mr. Khaioutine stated that he was beaten on a train by an individual who later handcuffed him and took him to a police station where Mr. Khaioutine was again beaten. Mr. Khaioutine stated that while he was at the police station, his wife and mother became alarmed that he had not returned home. They phoned the police station and were told that Mr. Khaioutine was not at the police station. Mr. Khaioutine said no records existed to confirm his presence at the police station. |
| v) Because of these incidents, Mr. Khaioutine and his family constantly moved. |
| vi) In May of 1997, Mrs. Khaioutina, the female applicant, was beaten by anti-semitic thugs. She sustained a heart attack and was thereafter unconscious for five days. The applicants" evidence was that the police refused to do anything about this. |
| vii) In the summer of 1997, Mr. Khaioutine was returning home when he was met by three men near the entrance of his building. They grabbed him, threw him into a car, drove him to a deserted area, and severely beat him. He said that he was unable to get any help from the police because the police told him that they required the names of the attackers or precise descriptions. |
[14] In considering the issue of the existence of state protection, the Board stated:
| The male claimant"s evidence is, as a result of the 1997 summer incident, he could not provide the police with names or description of the attackers. However, the police said they would attempt to keep, if he could provide vital basic information. The police"s response, in the view of the panel, is not unreasonable. The police in Russia, as in any jurisdiction, needs [sic] adequate information to launch an investigation. The evidence also indicates that the male claimant never filed a complaint in the alleged August 1995 train arrest and beating incident. |
[15] This is a cursory analysis of the relevant evidence and the issue of the existence of state protection.
[16] In Zhuravlvev, supra, after reviewing the analysis of the Supreme Court of Canada in Ward, supra, Justice Pelletier summarized jurisprudence from this Court which has considered the requirements for establishing the lack of state protection.
[17] I accept Justice Pelletier"s analysis and endorse the conclusions he drew. They were stated at paragraph 31 of his reasons as follows:
| [31] What conclusions can be drawn from the above? The first is that when the agent of persecution is not the state, the lack of state protection has to be assessed as a matter of state capacity to provide protection rather than from the perspective of whether the local apparatus provided protection in a given circumstance. Local failures to provide effective policing do not amount to lack of state protection. However, where the evidence, including the documentary evidence situates the individual claimant"s experience as part of a broader pattern of state inability or refusal to extend protection, then the absence of state protection is made out. The question of refusal to provide protection should be addressed on the same basis as the inability to provide protection. A local refusal to provide protection is not a state refusal in the absence of evidence of a broader state policy to not extend state protection to the target group. Once again, the documentary evidence may be relevant to this issue. There is an additional element in the question of refusal which is that refusal may not be overt; the state organs may justify their failure to act by reference to various factors which, in their view, would make any state action ineffective. It is for the CRDD to assess the bona fides of these assertions in the light of all the evidence. |
[18] In the present case, the Board in its analysis referenced only two incidents related by the applicants in the context of state protection. The first was the 1997 summer incident, the second was the August 1995 arrest and beating incident. There is no indication that the Board considered the other incidents of contact with the police. Specifically, the Board"s analysis did not reference the evidence before it of the advice from the police in 1990 that there was not sufficient resources to protect Jewish people, or the advice in the spring of 1995 from the St. Petersburg police Commissioner to the effect that Mr. Khaioutine should not pursue his complaints to the police "because criminals were on the loose".
[19] The Board did note that no complaint had been filed in connection with the August 1995 train arrest and beating incident. However, the Board appears to have failed to analyse or consider that Mr. Khaioutine testified that, after the beating on the train, he was taken to the police station where he was handcuffed, and again beaten. The Board also apparently failed to consider the evidence that while he was so detained, his wife and mother called the police station, but were told he was not there. There was no analysis as to whether in the face of that evidence, Ward, supra, required further effort by the claimants to avail themselves of state protection.
[20] The Board did accept that the $5,000.00 extortion attempt took place and noted that the perpetrator may well have been a member of the National Patriotic Organization and a policeman, but found this did not "take this incident out of the category of criminality".
[21] Further, the Board"s analysis failed to have regard to evidence contained in the documentary evidence filed before it. There was evidence to the following effect:
| On the other hand, there clearly remains much unease among the Russian Jewish community that the police and judicial author-ities [sic] are not doing enough to apprehend the perpetrators of antisemitic acts and to presec-ute [sic] offenders to the degree required. It is apparent that the will to do so is often not there. The existence of such an extensive extremist network-notwithstanding its inability to achieve parliamentary representation-remains a very serious issue. It must also be said that, while there have been improvements in the monitoring of Russia"s racial and antisemitic scene in the last few years, much work remains to be done in this field, by the central author-ities [sic] and Jewish organizations alike. [Antisemitism World Report, 1997]. |
| ... |
| Jews who feel harassed may have no alternative but to leave Russia. In general, they would not go to the police because they would not expect the police to help or they may even fear that the police may take the side of the perpetrator. The police are often involved in criminal activity or at least in covering up criminal activity. There are often reports of police officers being fired and arrested for corruption, etc. but it is not clear on whether they are actually being prosecuted and jailed. Because of the state of the security forces, there is no recourse for Jews. As far as the Jewish community is concerned as a source of assistance, in spite of the strides the Jewish community is making in organized life. In most places, Jewish organizations are weak, underfunded, often at war with local authorities over property reinstatement, etc. Consequently, with some exceptions, intervention of the Jewish community on the behalf of a family would not bring about the desired effect. [Research Directorate, Immigration and Refugee Board - August 25, 1997]. |
[22] To attract judicial intervention, the applicants must satisfy the Court, as set forth in section 18.1(4)(d) of the Federal Court Act, that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[23] As noted by Justice Evans of this Court in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), a court may conclude that a tribunal made an erroneous finding of fact without regard to the material before it from the Board"s failure to mention in its reasons evidence before it which was relevant to the finding and which pointed to a different conclusion.
[24] Justice Evans further noted that while a tribunal need not deal with or summarize all of the evidence before it, the more important the evidence not mentioned, the more willing a court may be to infer that the Board made an erroneous finding of fact without regard to the evidence.
[25] In this case I conclude, from the Board"s failure to mention in its analysis of state protection and deal with:
| (i) the evidence before it of all of the instances where the applicants reported incidents to the police; |
| (ii) the response of the police to all of those reports, particularly the response of the St. Peterburg Commissioner; |
| (iii) the evidence of police involvement in the August, 1995 incident; |
| (iv) documentary evidence which, to use the words of Justice Pelletier in Zhuravlvev, supra, situated the individual claimants" experience as part of a broader pattern of state inability to extend protection; |
that the Board erred, and reached its conclusion with respect to state protection without regard to the material before it.
[26] Therefore, the application for judicial review is allowed, and the matter is to be remitted to a differently constituted panel for redetermination.
[27] No question was proposed for certification by counsel.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
June 9, 2000