Federal Court Decisions

Date: 20020426

Docket: IMM-1406-01

Neutral citation: 2002 FCT 472

Ottawa, Ontario, this 26th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                 MARIKA NITSKI

                                                                                                                                                       Applicant

                                                                              - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated February 22, 2001 wherein the Board determined that the applicant is not a Convention refugee.

[2]                 The applicant seeks an order setting aside the decision of the Board, referring the matter back for a new hearing before a differently constituted panel of the Board.

Background

[3]                 The applicant is a citizen of Estonia.

[4]                 The applicant claims to fear persecution because of her Russian ethnicity and because her uncle is a well-known Russian political activist in Estonia.

[5]                 The applicant came to Canada in 1997 and made a Convention refugee claim based on problems she encountered that were related to her husband being perceived as Jewish. The man she was married to was a Russian Orthodox who had a Jewish mother. The refugee claim was refused.

[6]                 The applicant returned to Estonia on October 15, 1998.

[7]                 The applicant re-entered Canada on October 2, 1999 and instituted a second claim to Convention refugee status based on the grounds noted above, along with the events that transpired during her return stay in Estonia.

[8]                 The applicant alleges that she faced many acts of persecution in Estonia, including the abduction of her husband, the assault of her child and an attempted rape.

[9]                 The applicant provided corroborating evidence at her hearing, including a letter from a lawyer in Estonia that indicated a lack of state protection and supported her assertion that she faced persecution in Estonia. The applicant also provided newspaper articles indicating her uncle's political activism and the death of his daughter, police reports that indicated that the applicant reported the attempted rape to the police, and a medical report stating that the applicant's son had received stitches for a head wound.

[10]            As this was a repeat claim, the Board applied the doctrine of res judicata and restricted their assessment of the claim to new evidence that post-dated the rejection of the first claim.

[11]            In assessing the applicant's claim, the Board found that the applicant was lacking in credibility and that she failed to establish a well-founded fear of persecution in Estonia.

Applicant's Submissions

[12]            The Board drew an adverse credibility finding from the fact that the applicant failed to mention in her first claim that she experienced any problems relating to her Russian ethnicity and membership in her uncle's family. The applicant submits that the applicant testified that she did in fact inform her lawyer of the problems concerning her uncle's political activities but was advised that her uncle's situation was too remote to be relevant. The applicant submits that the Board erred by ignoring this explanation and as a result ignored relevant evidence in its assessment.

[13]            The applicant submits that the most significant aspects of the second claim occurred after the applicant returned to Estonia.

[14]            The applicant submits that the applicant entered a number of documents at the hearing that provided corroborative evidence. The applicant submits that the Board made a serious error in determining that because of the lack of credibility of the applicant, her personal documents offering corroborative evidence should be rejected.

[15]            The applicant submits that the Board is entitled to reject documents because the applicant lacks credibility but that was not the finding in this case. The applicant submits that the credibility concern of the applicant was specific to failing to mention her current grounds at the previous hearing. The applicant submits that the Board did not make a general credibility finding and was without basis to determine that the personal documentation should be accorded no weight.

[16]            The applicant submits that while the Board can consider country documents from reliable sources, the Board must also consider personal documents that are more direct and on point than the general information. The applicant submits that the Board must assess personal documents that provide evidence specifically related to the applicant's claim.

Respondent's Submissions

[17]            The respondent submits that the Board's findings are well founded in fact and law and they are well supported by the evidence adduced at the hearing.

[18]            The respondent submits that following Vasquez v. Canada (M.C.I.) (1998) 160 F.T.R. 142, the applicant is estopped from adducing evidence on a repeat claim that could have been adduced on the initial claim.

[19]            The respondent submits that the applicant was attempting to relitigate her initial claim to Convention refugee status on the basis of supplementary arguments that were available to her at the time of her initial claim.

[20]            The respondent submits that the applicant had the opportunity to raise the issues of her Russian nationality and her political activist uncle at her initial claim to Convention refugee status and is now estopped from doing so on the basis of res judicata.

[21]            The respondent submits that it was reasonably open to the Board to find the applicant's explanation for not raising these grounds at the previous hearing to be unsatisfactory.

[22]            The respondent submits that the applicant has not shown that the Board's assessment is perverse, capricious or without regard to the evidence.

[23]            Issues

1.          Did the Board err in its assessment of the applicant's failure to mention the grounds for persecution in the first refugee claim?

2.          Did the Board err in rejecting personal documentation corroborating the applicant having been persecuted in Estonia?

Analysis and Decision

[24]            Issue 1

Did the Board err in its assessment of the applicant's failure to mention the grounds for persecution in the first refugee claim?

The Board based their finding that the applicant lacked credibility on the applicant's failure to raise these claims at her original refugee hearing. The panel wrote:

The panel notes that the claimant's alleged fear of persecution in her new claim is based on two elements, first because of her nationality as Russian, and secondly because of her connection with her uncle, who allegedly is a well-known activist.

It is significant that there was no mention of either of the above elements in the claimant's first claim for refugee status. When this was brought to her attention, the claimant stated that since her first claim was based on her husband's Jewish ethnicity, she therefore, did not mention about these other experiences. The panel is not satisfied with this explanation. In the panel's view, if these other reasons, i.e., the claimant's Russian ethnicity and her association with her uncle were so serious as to cause fear of persecution, they should have been mentioned in the claimant's first PIF.

[25]            It was not unreasonable for the Board to find that since the applicant's grounds for refugee status existed at the time of the previous panel, if they cause the applicant fear of persecution, presumably they would have caused the applicant fear of persecution at the time of the previous application, so those grounds should have been mentioned in the first PIF. The Board's conclusion on this point is generally applicable with one notable exception. The exception would occur only if there is a change in the country conditions such that these grounds now cause fear of persecution but did not do so prior to the previous refugee claim.

[26]            I do not find that the Board erred in its assessment of the applicant's failure to mention these grounds for persecution in the first refugee claim.

[27]            Issue 2

Did the Board err in rejecting personal documentation corroborating the applicant having been persecuted in Estonia?

The applicant submitted a variety of documentary evidence to support her claim. The applicant submitted copies of letters from the police to the applicant's counsel in Estonia discussing the opening of a criminal case at the request of the plaintiff. The applicant submitted a letter from a hospital stating that the applicant's son had received stitches for a head wound. The applicant further submitted a letter from her legal counsel in Estonia that chronicled some of the events that allegedly occurred since the time of the applicant's previous Board decision in Canada.

[28]            The Board discussed the applicant's corroborating evidence as follows:

In arriving at its decision, the panel considered all corroborating evidence, produced by the claimant in support of her repeat claim, including the letters from Mr. Santashev, a lawyer from Estonia, and three newspaper articles corroborating the claimant's uncle's activities and the death of his cousin. We also considered the police, and medical report all of which were admitted as Exhibit, C-3 and C-4. However, in view of the above credibility problems and since the contents of these corroborating documents are inconsistent with the rest of the documentary evidence, which are compiled from various impartial and reputable human rights organisations, we decided not to attach any weight to the corroborating evidence produced by the claimant in support of her claim.

[29]            There is no doubt that the Board is entitled to follow the principle of res judicataand only consider new evidence that has arisen after the first hearing. The fact that an applicant has a failed application does not preclude the applicant from making a new Convention refugee claim based on new evidence relating to changed conditions in the applicant's country of origin.

[30]            In its decision, the Board simply gave no weight to the new evidence submitted by the applicant. It may have been open to the Board to not attach much weight to the documents if the Board found the documents to be forgeries or vague. However, the Board explained it did not attach any weight to these documents "in view of the above credibility problems" and the apparent inconsistency of the applicant's documents with the rest of the documentary evidence.

[31]            The Board has a duty to consider the possibility of changed conditions in the country of origin. These changed conditions may appear in documentary evidence or may be specific to the applicant. In order to determine whether there were changed conditions in the country of origin, the Board should have assessed this new evidence to see if it supported changed conditions instead of giving it no weight by reason that it found that the applicant's credibility was undermined by the failure to mention certain grounds in the first application.

[32]            The Board's duty on this second application is to consider the new evidence and determine whether this new evidence is of sufficient weight to establish changed country conditions in the applicant's county of origin. The Board did not give analysis or reasons why this new evidence should be given no weight other than the credibility problem of the applicant caused by not mentioning the two grounds for this application in the previous application.

[33]            I find that the Board's failure to address whether this new evidence could lead to a finding of changed country conditions is a reviewable error.

[34]            The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for redetermination.

[35]            Neither party wished to submit a serious question of general importance for certification.

ORDER

[36]            IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 26, 2002