Date: 20040723
Docket: IMM-5203-03
Citation: 2004 FC 1030
Ottawa, Ontario, this 23rd day of July, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
VADYM GRAMA,
YANA GRAMA (a.k.a. YANA VITALIYIVN)
and TARAS GRAMA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Grama family - Vadym, Yana and their son, Taras - fled Ukraine in 2002. They came to Canada, they say, to escape serious, widespread and violent anti-Semitism. They sought refugee protection here, but a panel of the Immigration and Refugee Board turned them down. The Board concluded that the documentary evidence before it contradicted the Gramas' description of circumstances in Ukraine.
[2] The Gramas argue that the Board erred by failing to consider their evidence adequately. In particular, they suggest that the Board discounted their credibility too readily. They ask me to order a new hearing. I agree that the Board erred and will grant this application for judicial review.
I. Issue
[3] I need only consider one issue: Did the Board adequately explain its finding that the Gramas' claims were not worthy of belief?
II. Analysis
[4] Decision-makers must explain adverse credibility findings in clear and unmistakable terms: Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL). In this case, the Board dismissed the Gramas' claims as follows:
These claimants allege they experienced instances of beatings and other forms of persecution in recent years and that they know this is commonplace among Jews in Kiev. The extensive search of the documentary evidence we have does not support their allegations as they relate to themselves or to others.
[5] All three family members testified in this case. The transcript of the hearing exceeds one hundred pages. Vadym and Yada's written narratives are detailed and lengthy. Yet, the Board dismissed their claims without actually referring to that evidence in any detail.
[6] Clearly, the Board felt that the Gramas had exaggerated their experiences. It referred to documentary evidence showing that there is anti-Semitic behaviour in Ukraine, but its sources did not indicate that the situation was as grave as the Gramas maintained. The Board had grounds to doubt some of their allegations.
[7] However, the Board erred when it dismissed the entirety of the applicants' evidence without any real analysis of it. Its statement that it preferred "the evidence of the various sources with no interest in the outcome of this claim to the self-serving evidence of these claimants" was not an adequate assessment of the evidence or a proper explanation of its credibility findings.
[8] In situations where the Board feels a claim has been exaggerated, it must still determine whether there is sufficient evidence to justify a well-founded fear of persecution. I agree with Justice Marceau's comments:
It seems to us that the Board should have asked itself whether, even assuming some exaggerations, the applicant had not shown that he had been undoubtedly the victim of harassment of a variety of forms amounting to persecution, making thereby his fear to go back not only genuine but objectively founded. (Yaliniz v. Canada (Minister of Employment and Immigration) (1988), 7 Imm.L.R. (2d) 163, at p. 164 (C.A.))
[9] I must allow this application for judicial review and order a new hearing before a different panel of the Board. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. The applicants are entitled to a new hearing before a different panel;
3. No question of general importance is stated.
"James W. O'Reilly"
F.C.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5203-03
STYLE OF CAUSE: GRAMA ET AL v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: Wednesday, July 21, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
APPEARANCES BY:
Mr. Arthur Yallen FORTHE APPLICANTS
Ms. Aviva Basman FOR THE RESPONDENT
SOLICITORS OF RECORD:
YALLEN & ASSOCIATES
Toronto, Ontario FOR THE APPLICANTS
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT