Date: 20010530
Docket: IMM-4492-00
Neutral Citation: 2001 FCT 548
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
-and-
ANATOLI KEN, VERA STARKOVA
Respondents
[1] This is an application for judicial review of the Immigration and Refugee Board's [the"Board"] decision dated July 25, 2000, wherein the Board determined that the respondents are Convention refugees.
FACTS
[2] The respondents, both citizens of Russia, based their claims to a well-founded fear of persecution in Russia on the ground of political opinion. They fear persecution because they refused to co-operate with certain Russian companies interested in exploiting for profit the respondents' unique scientific methods of identifying mineral deposits. Because of this, the respondents were threatened and harassed repeatedly.
[3] As a result, they came to Canada on a business trip in 1997 and when the harassment continued in Canada as well as in Russia (through their daughters) they both made claims to refugee status in August 1998. They said there would be no protection for them if they returned to Russia because of the state's involvement with criminal elements that attempted to exploit them.
ISSUE
[4] Did the Board err in its assessment of the respondents' credibility without proper regard to the evidence before it?
ANALYSIS
[5] Issues of credibility are part of the Board's jurisdiction. The Federal Court of Appel in Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A), explained:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.
[6] In Boye v. Canada (M.E.I.) (1994), 83 F.T.R. 1 (F.C.T.D.), Jerome A.C.J. stated:
To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanor, frankness, readiness to answer, coherence and consistency in oral testimony before it.
[7] Before the hearing, the applicant raised issues of credibility by sending a submissions letter to the Board. The applicant also tendered a letter from David Burros, a representative of Inco Ltd.
[8] The applicant argues that the Board ignored the evidence submitted by the applicant and that nowhere in its reasons did the Board explain its understanding of the evidence referred in the submissions letter which called into question the credibility of the respondents.
[9] The applicant alleges that the Board was presented with highly relevant and weighty evidence which directly called into question the credibility of the respondents. By neglecting to consider this evidence in its reasons and simply accepting the testimony of the respondents, it is submitted that the Board erred.
[10] A Board does not have to refer to every document tendered in evidence. The Federal Court of Appeal, in Florea v. Canada (M.E.I), [1993] F.C.J. No.598 (F.C.A.), explained, at paragraph 1:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.
[11] However, if the evidence not mentioned in the Board's decision is important and contradicts squarely the evidence accepted by the Board, the Board might have a duty to refer specifically to it.
[12] In Cepeda-Gutierrez v. Canada (M.C.I) (1998), 157 F.T.R. 35 (F.C.T.D.) at paragraph 15, it was held:
The Court may infer that the administrative agencies under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (M.E.I) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.). That would be far to onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources...
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[13] In the case at bar, the evidence tendered by the applicant called into question the respondents' credibility. The applicant submits that the Board erred by simply accepting the respondents' testimony.
[14] On the issue of the respondents' credibility, the Board stated at page 3 of its decision:
The claimants presented their evidence in a sincere manner; their subjective fear was obvious. Notwithstanding the complexity of the testimony, the panel finds that they were credible. Although they indicated in their Canadian Visitor Visa application interview that they were planning to return to Russia, they testified that they made claims for refugee status only when they found out that criminal elements were still targeting them and that Russian security forces and government officials were also involved. Hence the delay in claiming. The panel has weighed the evidence presented and is satisfied with this explanation.
[15] I have carefully reviewed the evidence before the Board as well as the Hearing transcript. In my view, the Board simply ignored this evidence and nowhere in its reasons did the Board explain its understanding of the evidence referred in the submissions letter which called into question the credibility of the respondents.
[16] The Board was presented with highly relevant and weighty evidence which directly called into question the credibility of the respondents. By neglecting to consider this evidence in its reasons and simply accepting the testimony of the respondents, the Board erred.
[17] The applicant, in the applicant's memorandum of argument, raised many points undermining the credibility of the respondents:
· The fact that the Respondents stated in their PIFs that they applied for and were provided with visas within 24 hours (on October 21, 1997), when their visa applications clearly indicated that they had applied for these visas on October 14, 1997.
· The fact that the Respondents approached Inco to set up a meeting and not the other way around as asserted in the Respondents' PIFs.
· The fact that the Respondents, in requesting the meeting with Inco, told the representatives of Inco that they were in the United States on other business, thereby either lying to Inco or lying in their PIFs.
Applicant's Record, Submissions Letter, Exhibit "A" to the Affidavit of Guiseppe D'Amata, pp. 9-10. Applicant's Record, Burrows Letter, Exhibit "C" to the Affidavit of Guiseppe D'Amata, p. 36.
[18] The respondents had the opportunity to respond and clarify those discrepancies. I carefully review the affidavit of the claimant Anatoli Ken, dated October 19, 2000 and, in my view, the claimant chose not to respond and clarify the facts raised by the applicant.
[19] There is nothing in the transcript which demonstrates that the Board met its statutory obligation to consider the evidence provided by the Minister pursuant to subparagraph 69.1(5)(a)(ii).
[20] In Maharajah v. Canada (M.E.I.), [1994] F.C.J. No. 735 (F.C.A.), the Court held:
In our opinion, the Refugee Division erred in failing to deal explicitly with this important evidence and making its decision having regard to that evidence. It should have considered whether this evidence lent support to the Appellant's claim that he had a well-founded fear of persecution because of the violence which had been experienced by other members of TULF at the hands of the LTTE.
Note 1: We have not overlooked the case of Woolaston v. Minister of Manpower and Immigration [1973] S.C.R. 102 where the Supreme Court of Canada held that the failure of a tribunal to mention certain evidence, characterized by that Court as "slim", was not fatal to its decision. In contrast, the evidence which was not addressed by the Refugee Division can scarcely be so characterized. It was central to the Appellant's entire case.
[21] In Cheng v. Canada (M.E.I.), (1993), 70 F.T.R. 127 (F.C.T.D.), Justice Denault said:
The applicant submits that the tribunal failed to consider the documentary evidence consisting of a letter from his sister indicating that the Public Security Board had been looking for him. The applicant maintains that these omissions are crucial to the applicant's claim and are therefore a reviewable error. The respondent submits that the reasons need not list every factor considered by the panel, that it is its duty to consider and weigh the value of evidence before it.
While I am in agreement with the principle stated by the respondent, I am of the opinion that in this instance the tribunal ignored or failed to consider and weigh an important piece of evidence, the letter from the applicant's sister which addresses the merit of this application.
[22] Even though this Court is reluctant to intervene in a file when the issue is the claimants' credibility, in the case at bar, I am convinced that the Board did not consider important evidence and, on that basis, it constitutes a reviewable error.
[23] Therefore, this application for judicial review is granted, the decision is set aside and the matter returned to the Board for a new hearing before a differently constituted panel.
[24] Neither counsel submitted a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
May 30, 2001
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4492-00
STYLE OF CAUSE: MCI v. Anatoli Ken, Vera Starkova
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 23, 2001
REASONS FOR ORDER OF the Honourable Mr. Justice Blais DATED: May 30, 2001
APPEARANCES:
Mr. Edward C. CorriganFOR THE APPLICANT
Ms. Catherine VasilarosFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Rodney L.H. Woolf FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada