Date: 20010510
Docket: IMM-1446-00
Neutral reference: 2001 FCT 462
Between:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and:
Isabella ROITMAN
Alexander ROITMAN
Defendants
[1] The plaintiff wishes to have the Court quash a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") made on March 9, 2000, that the defendants Isabella Roitman and her son Alexander are refugees.
[2] The status application was heard by Board members Auguste Choquette and Stéphane Handfield. At the close of the hearing held on March 9, 2000 Mr. Choquette concluded that the defendants were refugees. Mr. Handfield took the matter under reserve. In view of s. 69.1(10) of the Immigration Act ("the Act") which reads as follows:
| 69.1 (10) Subject to subsection (10.1), in the event of a split decision, the decision favourable to the person who claims to be a Convention refugee shall be deemed to be the decision of the Refugee Division. |
69.1 (10) Sous réserve du paragraphe (10.1), en cas de partage, la section du statut est réputée rendre une décision en faveur de l'intéressé. |
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Mr. Choquette's decision is the decision of the Refugee Division.
[3] Following the decision of March 9, 2000 the Minister, pursuant to s. 69.1(11) of the Act, which reads as follows:
| 69.1 (11) The Refugee Division may give written reasons for its decision on a claim, except that (a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision; (b) if the Minister or the person making the claim requests written reasons within ten days after the day on which the Minister or the person is notified of the decision, the Division shall forthwith give written reasons. |
69.1 (11) La section du statut n'est tenue de motiver par écrit sa décision que dans les cas suivants : a) la décision est défavorable à l'intéressé, auquel cas la transmission des motifs se fait avec sa notification; b) le ministre ou l'intéressé le demande dans les dix jours suivant la notification, auquel cas la transmission des motifs se fait sans délai. |
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asked Mr. Choquette to give written reasons for his decision. On June 19, 2000, accordingly, Mr. Choquette signed his reasons. On July 7, 2000 Mr. Handfield signed dissenting reasons.
[4] At the close of the hearing at Montréal on May 1, 2001, I informed counsel that the application for judicial review would be allowed. The following are the reasons I gave on May 1.
[5] The defendant Isabella Roitman, born in Russia on October 23, 1958, is a citizen of Israel. Her son Alexander, born in Moldavia on July 20, 1989, is also a citizen of Israel. They arrived in Canada for the first time on December 24, 1992 and filed an application for refugee status. This was denied on August 12, 1996 and their application for judicial review was dismissed by Richard J. A. of this Court on February 18, 1997.
[6] In August 1997, the defendants returned to Canada and filed a new application for refugee status. In June 1999, they withdrew this application and left Canada for Israel. Finally, on November 23, 1999 they defendants returned to Canada and again claimed refugee status.
[7] As I have already indicated at the close of the hearing on March 9, 2000, Mr. Choquette made a decision favourable to the defendants. He said the following at pp. 97 and 98 of the transcript.
[TRANSLATION]
BY THE PRESIDING MEMBER (addressing claimant)
. . . . .
- Good. So what you want - there are situations where sometimes one must . . . as you go on in life, gray hairs appear, you sometimes realize that there are principles which are harsh and you become . . . I don't know, you become sceptical about the application of principles that have to be applied, but there are circumstances where . . . I don't know, one has to demonstrate . . . a broad outlook which is not always understood - exercise magnanimity which is not always capable of pleasing people because Canada has the right to be protected against abuses of a system.
- Well, to cut the matter short. I simply must tell you that there are two of us here and our opinions are equally valid. My colleague is a Board member of great reputation and does extraordinary work here; we are all trying to do our duty. It is a case where a difference of views exists and I fundamentally respect that.
BY BOARD MEMBER [Mr. Handfield] (addressing presiding member)
- However, for the moment, Mr. President, I wish to reserve . . .
A. Thank you.
- . . . my decision.
BY THE PRESIDING MEMBER (addressing claimant)
- So, my decision is positive . . .
[8] The foregoing comments by Mr. Choquette must of course be read with the written reasons he signed on June 19, 2000. In my opinion, Mr. Choquette made several errors which justify intervention by this Court.
[9] First, Mr. Choquette disregarded the rule stated by the Supreme Court of Canada in Ward v. Canada (A.G.), [1993] 2 S.C.R. 689, that a refugee status claimant must show in a clear and convincing manner that his or her country is unable to provide him or her with protection. If there is no such evidence a refugee status claimant cannot succeed, since his or her country is presumed to be capable of protecting him or her.
[10] In Minister of Citizenship and Immigration v. Kadenko (1997), 206 N.R. 272, a case involving a refugee status claim against Israel, the Federal Court of Appeal concluded that in the case of a democratic country such as Israel a claimant had to show that he had attempted to exhaust the available remedies. Décary J.A., for the Court, said the following at 274:
When the state in question is a democratic state, as is [sic] the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.
[11] On this point, Mr. Choquette made the following observations at p. 7 of his reasons:
[TRANSLATION]
Finally, it should be pointed out that the Israeli passport now includes an entry indicating whether someone has made a refugee status claim abroad.
The people of Israel are a great people: the State of Israel, often at war, is highly respected; however, in any democracy there is a "bureaucratic establishment" which will have no sympathy whatever with someone who has three times sought to criticize the system and obtain asylum elsewhere, especially when the time comes to request the help of security forces against threats surrounding them.
[12] I entirely agree with the submission by Mr. Moreau, counsel for the plaintiff, that Mr. Choquette gave no consideration to the question of whether the state of Israel was capable of protecting the defendants. Apart from the foregoing passage from his reasons, Mr. Choquette said nothing about the rule stated by the Supreme Court in Ward, supra. In my view, Mr. Choquette should have dealt with this point and did not do so. In my opinion, this error is sufficient to provide a basis for intervention by this Court and for the quashing of the Refugee Division's decision.
[13] Further, the preceding passage from Mr. Choquette's reasons is not in any way based on the evidence. On the contrary, Exhibit A-5(i) states that an indication in a passport that someone has claimed refugee status abroad has no effect on that person's return to Israel or on his or her rights. Mr. Choquette should at least have considered this exhibit.
[14] Secondly, there can be no doubt, as Mr. Moreau suggested, that Mr. Choquette ruled in favour of the defendants for reasons which have nothing to do with the Convention. I agree with the plaintiff that Mr. Choquette based his decision on humanitarian grounds. Unfortunately for the defendants, humanitarian grounds are not as such sufficient for them to succeed in their refugee claim. They have to show that there is a risk of persecution on one of the grounds set forth in the Convention. A few examples will suffice to show that Mr. Choquette based his decision on humanitarian grounds. Firstly, the comments made by Mr. Choquette at the close of the hearing of March 9, 2000 are, in my view, quite clear. Secondly, certain passages from Mr. Choquette's written reasons clearly illustrate why he reached a favourable conclusion:
[TRANSLATION]
[page 2]
It is quite clear that the two claimants are people who have suffered: the mother was the victim of marital violence by the father of the child before she divorced him and he threatened her with death and with taking away her child.
Alexander's life was disrupted by the experiences he went through and he is far behind in school: he has already been the subject of a psychological assessment, mentioned in the IRB decision dated August 12, 1996.
The tribunal considers that not only is this a case with profoundly human ramifications but, above all, it is also a case which is consistent with the criteria laid down in the Act.
[page 6]
If the child Alexander has to return to the country of which he holds the nationality, there is a serious risk that he will not receive health and education benefits and he will very probably be exposed to cruel physical and psychological treatment: accordingly, there is a good risk of persecution because of his nationality as a former national of the U.S.S.R.
[page 7]
The tribunal is convinced that the instant case is of a special nature to which favourable treatment should be given.
[15] Another error made by Mr. Choquette, in my view, concerns his conclusion about the defendants' credibility. At p. 2 of his reasons Mr. Choquette said the following:
[TRANSLATION]
At the outset the tribunal has no hesitation in saying that the account, given primarily by the female claimant, of the personal injuries inflicted on the minor child is essentially confirmed by him and is fundamentally honest and credible.
[16] There is nothing else in Mr. Choquette's reasons regarding the defendants' credibility. There were several points in evidence before the Refugee Division which could have affected their credibility. This can be seen simply from reading the dissenting reasons of Mr. Handfield on the following points: the fact that the claimants did not claim refugee status while they were staying in Ireland, Holland and possibly France; the fact that the defendant indicated in her PIF that all members of her family, except for her, had remained in Moldavia, while she testified viva voce that her sisters Irina and Anna and her mother were also living in Israel; the fact that the defendant Alexander could not give the name of the town where he had lived in Israel; and the fact that the defendant could not remember the name of the school where she had registered her son in September 1999.
[17] It is certainly not my intention to say that Mr. Handfield was right when he concluded that the defendants were not credible. That is not my function as a judge hearing an application for judicial review. At the same time, it is clear that Mr. Choquette should have considered all the evidence before him and discussed points in the evidence that could have affected the defendants' credibility. I can only conclude, based on Mr. Choquette's reasons, that he completely ignored all points of the evidence that were not favourable to the defendants. In view of the evidence in the record and the fact that Mr. Choquette ignored a large part of the evidence, his statement that the defendants' account [TRANSLATION] "is essentially honest and credible" is an error justifying intervention.
[18] For all these reasons, the application for judicial review can only be allowed and the matter referred back to the Refugee Division for reconsideration by a panel of different members.
|
Marc Nadon Judge |
O T T A W A, Ontario
May 10, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1446-00
STYLE OF CAUSE: MCI v. Isabella ROITMAN and Alexander ROITMAN
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 1, 2001
REASONS FOR ORDER BY: NADON J.
DATED: May 10, 2001
APPEARANCES:
Marie-Nicole Moreau FOR THE PLAINTIFF
Brigitte Poirier FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
Brigitte Poirier FOR THE DEFENDANT
Montréal, Quebec