Date: 20040423
Docket: IMM-2249-03
Citation: 2004 FC 606
OTTAWA, ONTARIO, THE 23RD DAY OF APRIL 2004
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
SERHII TRYUS
APPLICANT
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
REASONS FOR ORDER AND ORDER
[1] By decision dated February 20, 2003, a member of the Immigration and Refugee Board's Refugee Protection Division (the "tribunal") determined that Serhii Tryus (the "applicant") a 25-year-old citizen of the Ukraine was neither a Convention refugee nor a person in need of protection.
[2] The applicant had alleged a well-founded fear of persecution in the Ukraine by reason of his membership in a particular social group, the Gypsies.
[3] The tribunal did not believe his mother's Gypsy origins and drew a negative credibility finding on this account. The tribunal also made two implausibility findings in disbelieving his story.
[4] Yet, the tribunal record contains an exhibit in the form of an undated document issued by the Ministry of Interior Affairs of the Ukraine purporting to be an extract from the archive volume number 35/15 which read "[N]otice regarding the birth of a child, issued to the citizen Tryus V.V. (Maiden name: Kravtsova V.V.), a Ukrainian of gypsy origin regarding the birth of her son Tryus Serhii Mikhailovich on June 9, 1977".
[5] It appears the tribunal, in its reasons, did not comment on this document which, on its face, confirms his mother's Gypsy origins and, as well, matches the applicant's testimony on his mother's birth place and where she was brought up, an area populated by Gypsies. This document also matches the information on his birth certificate except as to his middle name which was different.
[6] Counsel for the respondent invoked the well-known principle a tribunal need not make reference, in its reasons, to every piece of documentary evidence submitted but is presumed to have considered all documentation placed before it. In any event, she argued the finding was not central to the tribunal's determination. I do not accept the respondent's arguments.
[7] First, in my view, the principle enunciated by Justice Evans, then a member of the Trial Division, at paragraphs 16 and 17 of his decision in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, is applicable. Those paragraphs read:
¶ 16 On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (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 (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
¶ 17 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.
[8] Second, the finding he was not of Gypsy origin was central to his fear of persecution and his unwillingness to answer his call-up notices for military service.
O R D E R
For these reasons, this judicial review application is allowed, the tribunal's February 20, 2003 decision is set aside, and the applicant's refugee claim is remitted to a differently constituted panel. No certified question was proposed.
"François Lemieux"
J U D G E
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2249-03
STYLE OF CAUSE: SERHII TRYUS
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
ST. JOHN'S, NEWFOUNDLAND
DATE OF HEARING: MARCH 19, 2004
REASONS FOR ORDER AND ORDER OF:
THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: April 23, 2004
APPEARANCES:
MR. NICHOLAS P. SUMMERS FOR THE APPLICANT
MS. SUSAN INGLIS FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
NEWFOUNDLAND & LABRADOR LEGAL AID FOR THE APPLICANT
ST. JOHN'S, NEWFOUNDLAND
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA