Date: 20050603
Docket: IMM-4601-04
Citation: 2005 FC 811
Toronto, Ontario, June 3rd, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
BOHDAN LOPUSHNYAK
(a.k.a. Bohdan Ivanovyc Lopushnyak)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case the Applicant claims refugee protection as a member of the Jehovah's Witnesses in the Ukraine. In its decision, the Refugee Protection Division ("RPD") rejected his claim on the finding that he is not a member of the Jehovah's Witnesses. In reaching this finding, the RPD placed strong weight on the evidence of the Associate Director, Legal Affairs, the Watch Tower Bible and Tracked Society of Canada ("the witness"). In support of its conclusion, the RPD relied on the witness's evidence. The Applicant submits that, with respect to two particularly important issues, the witness' evidence is unsubstantiated.
[2] In the context of generally providing the structure of the organization, and with the specific agreement of the Applicant, the witness made specific inquiries about the Applicant's statement that he is a Jehovah's Witness. It is with respect to these inquiries, and their results, that Counsel for the Applicant takes strong issue and argues that the RPD's decision is made in reviewable error. For the reasons which follow, I agree with the argument.
[3] The Applicant's claim for refugee protection is based on his evidence that, between 1995 and 2001, he suffered persecution as a Jehovah's Witness in the Ukraine. The essential question before the RPD was whether the Applicant proved that, at the time in question, he was, in fact, a Jehovah's Witness. In support of this claim, the Applicant testified that he was a member of a small Jehovah's Witness congregation in the city of Ternople. The Applicant also supplied a letter from persons who are also members of his congregation in Ternople attesting to the truth of the Applicant's membership (Applicant's Application Record, p. 58). To test the truth of the Applicant's statement, and the reliability of the letter, the witness made certain inquiries in the Ukraine. I am satisfied that, on the record, the inquiries made were not with respect to the Applicant's activities in Ternople but, instead, were with respect to his activities in his birth place being the village of Trybukhivtsi. The outcome of these inquiries was that the Applicant was unknown as a Jehovah's Witness in Trybukhivtsi, and, also, the three attesting members of his congregation were also unknown. Nevertheless, it appears that on the basis of this evidence, the witness generated a statement that the Applicant was not known as a Jehovah's Witness in the city of Ternople (Applicant's Application Record, p. 56).
[4] It is not difficult to understand why the Applicant would argue before the RPD that the witness was either mistaken, or not being truthful, in making his statement about the Applicant not being known as a Jehovah's Witness in Ternople, when the evidence on the record with respect to his membership in the Jehovah's Witnesses in the Ukraine was only with respect to him not being known in his birth village of Trybukhivtsi. Given the controversy which arose on this question, I find it was incumbent on the RPD to state the controversy and to make some concrete findings with respect to it.
[5] In its decision with respect to the controversy, the RPD said this:
Counsel submitted that the Ukrainian JW organization requested information with respect to the congregation in Trybukhivtsi where the claimant had been born, but not where he alleged he was a member which was the case, according to the letter from the Ukrainian administration office.
(RPD Decision, p. 8)
After posing the argument, the RPD failed to take up the challenge of rationalizing the conflicting evidence. Instead, the RPD avoided dealing with the critical issue advanced by the Applicant, and made a number of findings on how the Applicant's evidence with respect to his participation in the Jehovah's Witnesses does not conform with a standard description of the Jehovah's Witness' organization in the Ukraine presented by the witness. In my opinion, this analysis does nothing to resolve the controversy which I agree is central to the Applicant's case. As a result, I find the RPD's decision to be patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for re-determination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4601-04
STYLE OF CAUSE: BOHDAN LOPUSHNYAK
(a.k.a. Bohdan Ivanovyc Lopushnyak)
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: JUNE 1, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: JUNE 3, 2005
APPEARANCES BY:
Arthur Yallen FOR THE APPLICANT
Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Arthur Yallen
Barrister and Solicitor
Toronto, Ontario
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT