Date: 20050628
Docket: IMM-8412-04
Citation: 2005 FC 910
Toronto, Ontario, June 28th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ALEXANDRE VOROPAEV
TATIANA VOROPAEVA
JULIA VOROPAEVA
( a.k.a. YULIA VOROPAEVA)
Respondents
REASONS FOR ORDER AND ORDER
[1] In the present case, the principal Applicant, Alexandre Voropaev ("the Applicant") claims refugee protection from government authorities in Russia. At the hearing before the Refugee Protection Division ("RPD"), the Minister argued that the Applicant is excluded from claiming refugee protection by virtue of Article 1F(b) of the Refugee Convention which reads as follows:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
....
(b) he has committed a serious non-political crime outside of the country of refuge prior to his admission to that country as a refugee.
In its decision, the RPD found against the Minister on the argument, and went on to find that the Applicant had proved his claim for refugee protection. Thus, a primary question for determination in the present Application is whether the RPD's finding with respect to Article 1F(b) is made in reviewable error. For the reasons which follow, I find that it is.
[2] The substance of the argument advanced by the Minister before the RPD was that, at the time of the hearing, the evidence produced established that a criminal case for tax evasion existed against the Applicant in Russia because of his actions as president of a company called Dalso Co. Ltd., and, as a result, there are serious reasons for considering that the Applicant has committed a serious non-political crime.
[3] Indeed, the record before the RPD establishes that criminal proceedings for tax evasion had been instituted in 1994; the proceedings are identified by the Russian authorities as "case No. 876012". The issue for determination by the RPD was whether the criminal case was still being advanced by the Russian authorities. With respect to this issue, as evidence before the RPD, the Applicant presented a document dated January 23, 1996, which purported to be an "order" of the Department of Interior Affairs of Vladivostok City, terminating case No. 876012 against him. The following words appear in the document:
1. Criminal case # 876012 started regarding fact of concealment of taxable income on amount $2,595,624 US from taxation committed by DALSO Co Ltd Company to be terminated due to lack of corpus delicti.
(Applicant's Application Record (AR), p. 89)
However, in response, the Minister produced evidence that the document presented by the Applicant is not "authentic".
[4] The critical part of the RPD's decision dealing with the "termination" evidence reads as follows:
The Minister relied on two main documents to conclude that the document [the January 26, 1996 "order"] was fraudulent. First was a letter, dated August 28, 2003, from NCB Moscow to Ottawa Interpol, which states according to their central criminal data base a person of the same name and date of birth is wanted at the national level. Investigations in relation to the criminal charges were to be carried out by the Primorski krai Directorate of the Russian Federal Tax Police Service.
A letter from Interpol Moscow, dated May 30, 2003 to the Canadian Embassy, comments on the authenticity of this document and the validity of the seal affixed to it.
"According to information received from the Internal Affairs Department of Primorski krai (Maritime Territory), the document you submitted is not authentic. The operative part of the document corresponds to the text and contents of the genuine document, but there are differences in a number of paragraphs of the rendered decision. ..."
Because this suggests that there was a genuine document to which the claimant's document was compared, the claimant's counsel had the Minister's representative request the original decision from Moscow.
Elek Admaski on behalf of Wally Babenko (elsewhere described as a communications officer, Canadian Embassy Moscow) claims in response to a request for the genuine document by the Minister's representative that "it is a counterfeit, not just an altered document. No such "authentic" or genuine document exists. Its format was made to resemble that of a later introduced genuine document."
In the letter from Gorodov [Interpol, Moscow, dated September 23, 2003], he writes, "Furthermore, legal advisor and first deputy prosecutor of Vladivostock, V. Li reversed this decision on February 17, 1996." If it was counterfeit, and no such document exists, how could the decision be reversed as claimed in the Interpol letter? This is a telling point, pointed out by counsel in his submissions and not addressed at all in reply by the Minister's representative in her reply submission.
Thus there is an internal inconsistency in the letter by Division Chief Gorodov, Interpol, (Moscow, Russian Federal Ministry of the Interior), to Wally Babenko, RCMP, Canadian Embassy Moscow, according to information received from the Internal Affairs Department of Primorski krai which renders its probative value as dubious.
The panel finds on a balance of probabilities the document which states that the claimant was cleared of criminal charges of fraudulent tax evasion was not fabricated. In addition to the above inconsistency in Chief Gorodov's letter, there were several other reasons for reaching that conclusion.
[Emphasis added]
(AR, pp. 16-18)
[5] Thus, a key issue for determination in the present Application is whether there is evidence to support the RPD's conclusion that there is an "internal inconsistency" in the September 23, 2003 letter. This is important because, based on the conclusion, the RPD effectively found that, at the time of the hearing before it, no criminal proceedings were outstanding against the Applicant in Russia.
[6] The September 23, 2003 letter from Mr. Gorodov, referred to by the RPD in the passage just quoted, reads as follows:
Dear Mr. Babenko,
According to information received from the Internal Affairs Department of Primorsky krai [Maritime Territory], the document you submitted is not authentic. The operative part of the document corresponds to the text and contents of the genuine document, but there are differences in a number of paragraphs of the rendered decision. Also, the seal affixed to this document entered into legal force as of April 1996. The document you submitted is dated January 1996. Furthermore, legal adviser and first deputy prosecutor of Vladivostok V.S. Li reversed this decision on 17 February 1996. The dossier was sent to the investigations office of the Tax Police Department of Primorsky krai. On 15 August 1996, Major S.A. Vorotilin, acting investigator of the Siberian branch of UFSNP [Federal Tax Police Department] for Primorsky krai rendered a decision instituting criminal proceedings against Aleksandr Semyonovich Voropayev (born 27 June 1952) under Article 162-2 part 2 of the Criminal Code of the Russian Federation for concealment of income (profit) in especially large amounts. A federal search for this person was announced in Circular 2000/43 of 15 August 1996. The measure chosen to secure the appearance of the defendant was recognizance not to leave (decision of Major S.A. Vorotilin, acting investigator of the Siberian branch of UFSNP for Primorsky krai, which was taken on 15 August 1996).
On 28 July 1997, by Major A.V. Loboda, senior investigator of UFSNP for Primorsky krai suspended proceedings in case No. 876012 due to the fact that the whereabouts of the accused could not be established.
If necessary, the certified copies of these documents can be sent to the requestor.
We would appreciate more detailed information on the criminal deeds of the accused and his whereabouts for the rendering of a decision under law in this criminal case.
We thank you for your cooperation.
Division Chief [Signature] P.P. Gorodov
(AR, p. 95)
[7] Thus, Mr. Gorodov's letter of September 23, 2003, provides evidence that, while the document tendered by the Applicant is not authentic, a genuine document does exist, the operative part of which is the same as the one presented by the Applicant. That is, there is evidence that the criminal case No. 876012 was terminated, but the termination decision was reversed on February 17, 1996, thus resulting in continuing action on the case. The most recent evidence before the RPD of the status of criminal case No. 876012 is stated in the decision of July 28, 1997 as follows:
1. To suspend the investigation into criminal case No. 876012 owing to the failure to establish the whereabouts of the accused A.S. Voropaev.
2. To send a copy of this decision to the public prosecutor's office.
(AR, p. 82)
Thus, as of the date of the RPD's decision, there is evidence that criminal case No. 876012 still exists, but is inactive.
[8] Therefore, I find that there are two reviewable errors exposed in the content of the RPD's decision. First, when the evidence with respect to criminal case No. 876012 is read carefully, and in its entirety, it cannot be concluded that there is an "internal inconsistency" in Mr. Gorodov's letter of September 23, 2003. Thus, there is no evidentiary basis for determining that the probative value of Mr. Gorodov's letter is "dubious".
[9] Second, as set out in Mr. Gorodov's letter of September 23, 2003, there is evidence of a detailed course of conduct with respect to criminal case No. 876012 which was apparently not considered in its entirety by the RPD in reaching its decision. Rather, the focus of the critical part of the decision, as quoted above, is only on one part of the course of conduct, being the authenticity of the termination decision document produced by the Applicant. However, the record before the RPD does not only contain the document produced by the Applicant and Mr. Gorodov's letter, it also contains copies of the following documents: the August 15, 1996 decision to arraign the Applicant as an accused in criminal case No. 876012 (AR, pp.74-75); the August 15, 1996 decision to suspend the preliminary investigation in the criminal case owing to the failure to establish the whereabouts of the Applicant (AR, pp. 80-81); and, the July 28, 1997 decision to suspend the investigation into the criminal case owing to the failure to establish the whereabouts of the Applicant (AR, p. 82). None of these documents were contested as evidence in the hearing before the RPD.
[10] As a result, I find that, in reaching a decision on the applicability of Article 1F(b) of the Refugee Convention with respect to the Applicant's claim for refugee protection, the failure of the RPD to consider all the evidence of criminal case No. 876012 constitutes a reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8412-04
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ALEXANDRE VOROPAEV
TATIANA VOROPAEVA
JULIA VOROPAEVA
( a.k.a. YULIA VOROPAEVA)
Respondents
DATE OF HEARING: JUNE 24, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: JUNE 28, 2005
APPEARANCES BY:
Stephen H. Gold FOR THE APPLICANT
Jack Davis FOR THE RESPONDENTS
SOLICITORS OF RECORD:
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE APPLICANT
Jack Davis
Barrister and Solicitor
Toronto, Ontario FOR THE RESPONDENTS