Date: 19990519
Docket: IMM-4619-97
BETWEEN:
VITALI PAPSOUEV
MARINA DEMIDOVA PAPSOUEVA
JULIA PAPSOUEVA
DARIA PAPSOUEVA
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated October 31, 1997, wherein it was determined that Vitali Papsouev and his family were not Convention refugees.
[2] The applicant seeks an order setting aside the decision and remitting the matter for reconsideration by a differently constituted panel.
[3] Vitali Papsouev, his wife, Marina Papsoueva, and their daughters, Julia and Daria Papsoueva, made refugee claims on April 7, 1995. They are citizens of Russia. Mr. Papsouev is Christian and was a prominent businessman in his country. His wife and children are Jewish. They allege they are persecuted because they are Jewish; in Mr. Papsouev's case, for being wealthy and married to a Jew.
[4] The applicants testified before the Board that the persecution was always a factor in their lives. It reached however a critical point in 1991 when a group of men stormed into their apartment and vandalised it. Ms. Papsoueva was beaten and the furniture was destroyed. The men threatened her that if she did not leave Russia, her entire family would be killed. The applicant's eldest daughter required psychiatric treatment following this incident.
[5] In February 1992, Ms. Papsoueva was approached on the street by two men, one of whom she believes she recognized from the 1991 attack. They screamed that they would not tolerate any more "kikes" in Russia, threatened to kill her and hit her twice in the face. Ms. Papsoueva went back to her apartment and called the police. They came after a long delay, took a statement but never pursued the investigation.
[6] A week later, her husband got a letter in the mail. It contained anti-Semitic remarks, threats and demands that he pay money to the sender. Mr. Papsouev ignored the letter. At the time, there were several extortionists who demanded money from wealthy businessmen. However, a week later, armed men came to his office and tied up everyone including Mr. Papsouev. The men kicked the people on the floor, threatened to kill them, and called them "kikes" as several people from his office were Jewish. They then demanded the keys to the safe, took the money and told Mr. Papsouev that since this was a kike office, they had to pay a huge amount of ransom to them, or they would kill him and kidnap his children.
[7] After the 1991 incident, the applicants had decided to leave Russia; they had grown fearful for their children's lives. Ms. Papsoueva applied for a passport for her and her children. In December 1991, Vitali Papsouev travelled to Canada. His wife received her passport in February 1992. Despite her request, the passport did not include the children. The couple travelled on business and pleasure to Switzerland, Canada, Aruba and the United States. They had to leave their children with Mr. Papsouev's mother. In August of 1992, they finally obtained passports and visa documents for the children.
[8] During their visit to Canada, the couple consulted with immigration lawyer Mendel Green. They were advised to secure their children and seek permanent resident status as members of the business class. The possibility of making a refugee claim was discussed and rejected as the other option was viewed to be more efficient.
[9] The couple returned in September 1992 and Mr. Papsouev left Russia again a few days later to travel to Canada, Switzerland and the United States. His wife and daughters joined him in Canada in December 1992. Mr. Papsouev returned briefly to Russia in June, 1993, to help a friend.
[10] The Papsouevs met with Mr. Green on December 23, 1992. His firm filed an application for permanent residence on behalf of Mr. Papsouev on February 4, 1993. Mr. Papsouev was interviewed on February 10, 1993 and on the same day he received an employment authorization which entitled him to commence business activities in Canada.
[11] Unfortunately, the permanent residence application was delayed and the Papsouevs lost their status to remain in Canada. Their application for judicial review was unsuccessful. They then made claims for refugee status in April 1995. The Board concluded that the Papsouevs did not have a well-founded objective fear of persecution in Russia. As I read the conclusion of the Board's decision, it is apparent that what is central to its finding is the delay in making a claim for refugee status; they were in Canada for three years before filing a refugee claim and the Board found this was an undue delay for which there was no explanation. Also, the Board suggested that, after the more serious incidents in Russia, Mr. and Ms. Papsouev still travelled to countries well known for entertaining refugee claims, such as the United States and Switzerland, and yet failed to make a claim, having returned to their homeland.
[12] At the hearing, attempts were made to clarify the delay in filing their claim for refugee status. The explanations were corroborated by the applicants" counsel, Mr. Mendel Green; he had been informed of the persecution they had suffered in Russia. He testified that he advised against making a refugee claim in favour of making an application for permanent residence through the independent investor program, as the latter is a more expeditious process. In its reasons, the Board wrote "This panel rejects Mendel Green's testimony (...) it is inconceivable to this panel that an experienced immigration lawyer would advise against making refugee claims in favour of attempting to gain permanent residence through the independent investor program". The Board then alluded that the applicants had the audacity to further delay the filing of a refugee claim by appealing the matter of their permanent residence application to the Federal Court. The Board suggested the refugee claim appeared to be a last ditch effort. The Board also doubted the objectivity of Mendel Green"s testimony; it suggested that his son, Stephen Green, had a business relationship with Vitali Papsouev. In short, the applicants" behaviour and failure to make refugee claims after the alleged persecution incidents led the panel to find that their evidence of persecution in Russia was not credible.
[13] The applicants submit that there was a breach of natural justice in that they were not given the opportunity to present corroborating evidence of their persecution. One of their daughters, also a claimant and present at the hearing, had a recollection of the events and was offered as a witness. The Board advised that no corroborating evidence was required. The finding that their claim was not credible, led the Board to conclude that no further evidence was necessary; this constitutes a gross violation of natural justice.
[14] I also find that the Board unreasonably disregarded the applicants" explanations for the delay in making a refugee claim. First, it neither commented nor rejected the applicants" explanation that initially they had incurred delays in obtaining passports and visas for their daughters.
[15] The Board's decision should be set aside if for no other reason than its rejection of Mr. Green's evidence. A finding that a reputable lawyer and an officer of the court would perjure himself requires substantial grounds. The Board had none. Both Mr. Green and the applicants testified that they had discussed the past persecution and the possibility of making a refugee claim. It is perfectly conceivable that a lawyer would advise a claimant who fits both criteria to file an application for permanent residence as opposed to a refugee claim. Counsel must discuss all options open to their clients along with their practical aspects. In this case, both processes could achieve the same result: permanent residence in Canada. The investor program is more efficient, more easily documented and more predictable.
[16] I will now address the matter of the business relationship between Stephen Green and Mr. Papsouev which seemed to bear undue influence on the Board's findings. In his affidavit, Mendel Green indicates that his son Stephen has no business relationship per se with Mr. Papsouev. Stephen Green, also a lawyer, incorporated a company for Mr. Papsouev. It is standard practice in commercial and business proceedings for a lawyer to act as an initial incorporator for a company and then sever his ties once the charter is issued. There is no basis to disbelieve Mr. Green on the so-called business relationship and this is an added reason to set aside the Board's finding.
[17] To infer that an applicant should not exhaust all remedies by appealing decision is not worthy of comment.
[18] Furthermore, the Board never disbelieved that Ms. Papsoueva and her daughters were Jewish. It therefore had an obligation to consider this aspect of persecution and evaluate whether they would be at risk upon return to Russia. The applicants called an expert witness to support their allegation that they were unprotected because they were Jewish but the Board chose not to comment either favourably or unfavourably with respect to this evidence.
[19] The respondent argues that they Board need not have heard corroborating evidence since it was satisfied that since the claimant had returned to Russia after the incidents of physical harassment they were convinced that there could be no objective fear of persecution. It was satisfied that they chose not to claim refugee status in countries signatories to the Convention before making a claim in Canada, and felt a three year delay could be relied upon as further evidence.
[20] No doubt many authorities support the position that a Board may take into account the delay in making a claim for refugee status to impugn a claimant's credibility but all of the jurisprudence cited in referring to this principle does not assist since it was not the primary reason for denying the claim. It is usually a corollary reason to what is considered to be more central for refusing a claimant.
[21] Therefore, even if the Board found that the applicants were not credible and rejected their account of what happened to them in Russia because of their delay in making their refugee claim, it still had to consider or comment on the central question of whether or not the applicants had a well-founded fear of persecution in Russia as a result of their religion; or, in Mr. Papsouev"s case, as a result of being associated with Jews. In fact, the documentary evidence on the situation of Jews in Russia may tend to support the applicants" allegations that Jewish persons are at risk in Russia.
[22] For all these reasons, the application is granted, and the matter is remitted for reconsideration by a differently constituted panel.
JUDGE
OTTAWA, Ontario
May 19, 1999