Date: 20000707
Docket: IMM-3740-99
BETWEEN:
| ANDREI TCHERNOV |
| LARISSA TCHERNOVA |
| YAKOV TCHERNOV |
| ALEXEY TCHERNOV |
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] In the present case the Applicant husband, his wife, and children, claimed refugee status on the basis that, were the Applicant returned to Russia, he would reasonably be expected to suffer persecution as a Jew.
[2] It is uncontested that there was ample documentary evidence before the CRDD to prove that Jews are persecuted in Russia. However, the CRDD"s decision was based on the primary finding that, where the Applicant returned to Russia, it is not likely that he would be perceived to be Jewish.
[3] A significant fact to be considered with respect to the CRDD"s primary finding is that the CRDD made a negative inference from the Applicant"s actions in destroying his airline tickets and passports, and from his inability to provide valid documentation to establish he and his family did actually come to Canada from Russia. While the CRDD is entitled to make this inference, in my opinion, it does not negate the requirement to properly analyze the evidence tendered by the Applicant with respect to his fear of persecution.
[4] It is uncontested that the Applicant is a Jew, this fact being clearly stated on his birth registration. In the CRDD"s decision, much is made of the fact that the Applicant is non-practicing, and, in fact, knows little about the Jewish faith. Indeed, the Applicant admitted in his evidence that people on the streets of Russia would not perceive him to be a Jew unless he told them. But, these facts are not the basis for the Applicant"s claim.
[5] In his evidence, the Applicant testified that the fact he is a Jew was registered in school and this was the primary source of information of his ethnicity which was communicated over the years, and which caused the persecution he suffered as a child and an adult. Before the CRDD, the Applicant"s evidence of his persecution and ethnicity was corroborated in a letter from his father.
[6] However, in response to the evidence of persecution and ethnicity tendered by the Applicant, the CRDD found that the Applicant had not satisfactorily established his ethnicity and was not credible with regard to his ethnicity. With respect to the father"s letter, the CRDD found that, given the relationship between the father and the Applicants, the fact that the letter was written in preparation for the hearing before the CRDD, and the lack of credibility of the Applicant, the letter should be accorded little weight.
[7] I find that the CRDD"s making of a negative inference improperly and unfairly impacted on its finding with respect to the Applicant"s claim of subjective fear of persecution. In my opinion, the Applicant"s evidence, taken together with his father"s letter, provides ample evidence to support the Applicant"s claim of fear of persecution. I find that it is not sufficient for the CRDD to dismiss the Applicant"s evidence and the father"s letter for the reasons it did. Thus, in my opinion, the CRDD"s decision was made without a proper analysis of the evidence of fear of persecution tendered by the Applicant, and, therefore, was made without regard to the evidence before it.
[8] Accordingly, I set the CRDD"s decision aside and refer the matter to a differently constituted panel for redetermination.
"Douglas R. Campbell"
Judge
EDMONTON, Alberta
July 7, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3740-99
| STYLE OF CAUSE: Andrei Tchernov et al. v. |
The Minister of Citizenship and Immigration
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: July 6th, 2000
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
DATED: July 7th, 2000
APPEARANCES:
Simon Yu FOR APPLICANTS
Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
McCuaig Desrochers FOR APPLICANTS
Edmonton, Alberta
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
Ottawa, Ontario