Federal Court Decisions

Date: 20020325

Docket: IMM-495-01

Neutral citation: 2002 FCT 336

Ottawa, Ontario, Monday the 25^th day of March 2002

PRESENT:            The Honourable Madam Justice Dawson

BETWEEN:

VYACHESLAV ZHURAVL'OV

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                     REASONS FOR ORDER AND ORDER

DAWSON J.

[1]    The sole issue raised in this application for judicial review is whether the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") committed a reviewable error when it concluded that Mr. Vyacheslav Zhuravl'ov is neither Jewish nor perceived to be such in Ukraine. Mr. Zhuravl'ov argues that in so concluding the CRDD ignored relevant evidence and improperly rejected relevant evidence. He also argues that the presiding member of the CRDD acted improperly, evidencing bias and over-involving himself in the hearing so as to usurp the role of counsel.

[2]    Mr. Zhuravl'ov was born in the former Soviet Union and is now of Ukrainian citizenship. He stated that his father is Russian and his mother Jewish, and that he is persecuted in Ukraine because of his Jewish ethnicity.

[3]    Mr. Zhuravl'ov stated in his Personal Information Form ("PIF") that as a child in Moscow he experienced humiliation, insults and physical abuse because of his Jewish ethnicity. After his family moved to Ukraine, Mr. Zhuravl'ov attended and graduated from university, but the job which he secured was, due to his Jewish ethnicity, at a lower-level than that for which he was qualified. Mr. Zhuravl'ov says that he was eventually fired without just cause.

[4]    After the fall of the Soviet Union, Mr. Zhuravl'ov stated that he was targeted by an anti-Semitic organization. He received a number of threatening phone calls. In April of 1997, his apartment was vandalized, but the police refused to investigate. Mr. Zhuravl'ov received a telephone call which told him that this action was a warning for him to leave Ukraine. Mr. Zhuravl'ov then began to receive threatening, anti-Semitic letters.

[5]                 In September of 1997, his car was vandalized and again the police refused to investigate. At the police station Mr. Zhuravl'ov overheard officers ridiculing him. The threatening letters continued, and in March and September of 1998 Mr. Zhuravl'ov was beaten. In November of 1998, Mr. Zhuravl'ov was shot at, but not seriously injured. Mr. Zhuravl'ov was beaten again in April of 1999 and in June of 1999 his dog was poisoned.

[6]                 Mr. Zhuravl'ov came to Canada in July of 1999.

[7]                 The CRDD correctly determined that the central element of the claim to status as a Convention refugee was Mr. Zhuravl'ov's claim that he is of Jewish ethnicity and is so perceived in Ukraine.

[8]                 The CRDD then considered the identity documents tendered by Mr. Zhuravl'ov. It noted Mr. Zhuravl'ov's admission that he had no original identity documents which described him to be Jewish, and his testimony that he did not know why he did not have a certified copy of his internal passport. The CRDD accurately set forth Mr. Zhuravl'ov's response to the question as to why he had no original or any copy of either his mother's or his grandmother's birth certificate. That evidence was that "[i]t was a long time ago".

[9]                 The CRDD then concluded that Mr. Zhuravl'ov's documents alone did not establish persuasively that he was Jewish or perceived to be so. Such finding is, on the evidence, unassailable.

[10]            The CRDD went on to consider the other evidence tendered in support of Mr. Zhuravl'ov's claim to Jewish ethnicity. The nub of Mr. Zhuravl'ov's concerns at the treatment of this evidence by the CRDD are threefold.

[11]            First, the CRDD rejected a photograph of Mr. Zhuravl'ov kneeling beside a grave which he said was that of his maternal grandmother. The reasons given by the CRDD were that it found no persuasive evidence to link Mr. Zhuravl'ov to the person named on the gravestone, and while Mr. Zhuravl'ov at first stated that his grandmother died in 1972, he corrected this when it was pointed out that the gravestone recorded the date of death to be 1973.

[12]            Second, the CRDD referred to "the medical report" submitted by Mr. Zhuravl'ov and stated that Mr. Zhuravl'ov "may have been treated for a beating" when in fact Mr. Zhuravl'ov submitted two medical reports which detailed three beatings.

[13]            Third, the CRDD ignored and gave no weight to a police report which stated that when beaten on one occasion the assailants shouted threats and insults about Mr. Zhuravl'ov's nationality. The CRDD similarly gave no weight to a threatening letter which identified Mr. Zhuravl'ov to be Jewish.

[14]            With respect to the photograph, if the discrepancy in dates was the only basis for discounting the evidentiary value of the photograph, such conclusion might be unreasonable. However, in light of the discrepancy in spelling between the name on the gravestone and Mr. Zhuravl'ov's family name as it appears on Mr. Zhuravl'ov's birth certificate, and the absence of any documentation linking Mr. Zhuravl'ov with the deceased, I am unable to conclude that it was patently unreasonable for the CRDD to find that the photograph did not persuasively establish a link between Mr. Zhuravl'ov and the woman named on the gravestone. The confusion over the date of death did nothing to add to the evidentiary value of the photograph.

[15]            With respect to the two medical reports, both said essentially the same thing, that Mr. Zhuravl'ov was beaten and suffered injuries. The significance to the CRDD of the "report" was its failure to indicate any reason for the beating. While the CRDD should have referred to both reports, I cannot find that the content of the reports was so significant that the CRDD's error was a reviewable error in the context of its determination of the central issue to the claim.

[16]            With respect to the remaining two documents, the CRDD did mention their existence so that it cannot be said that the evidence was ignored. However, the CRDD afforded the documents no weight because of "the panel's concerns with the overall credibility of this claimant and because the panel finds these documents to be unpersuasive evidence of the claimant's alleged Jewish ethnicity".

[17]            It is here that I have found that the CRDD committed a reviewable error for the following reasons.

[18]            First, while the CRDD spoke of concerns with the "overall credibility" of Mr. Zhuravl'ov, it made no finding of incredibility, did not say what evidence it found to be incredible, and gave no reason as to why it found Mr. Zhuravl'ov to be not credible.

[19]            Second, the CRDD did not give reasons for its finding that the documents were unpersuasive. The police report recounted that Mr. Zhuravl'ov's assailants shouted threats and insults about his ethnicity, while the threatening letter clearly stated that Mr. Zhuravl'ov was viewed to be a Jew by "The Cleaners of Ukraine" who stated their intent to expel Jews from Ukraine.

[20]            The CRDD made no comment that the documents were not authentic.

[21]            This evidence was relevant to Mr. Zhuravl'ov's claim that he was perceived to be Jewish. While the CRDD may have been entitled to conclude that the documents had no evidentiary value, the CRDD was obliged to give cogent reasons for that conclusion.

[22]            It follows for this reason that the application for judicial review must be allowed.

[23]            It is therefore not necessary to consider the issue raised by Mr. Zhuravl'ov as to the appropriateness of the presiding member's conduct.

[24]            Counsel posed no question for certification, and no question is certified.

ORDER

[25]            IT IS HEREBY ORDERED THAT:

1.    The application for judicial review is allowed. The decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated January 16, 2001 is set aside and the matter is remitted for redetermination by a differently constituted panel of the CRDD.

2.    No question is certified.

"Eleanor R. Dawson"

                                                                                                           Judge