Date: 19980318
Docket: IMM-1429-97
BETWEEN:
DEIAN IORDANOV IORDANOV,
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] This is an application pursuant to section 82.1 of the Immigration Act. R.S.C. 1985, c.I-2 (the Act) for judicial review of a decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board dated February 6, 1997 which found the applicant not to be a Convention refugee.
[2] The applicant is a citizen of Bulgaria who claims to have a well-founded fear of persecution on the basis of his religion. He is a member of the Bulgarian Church of God and was active in the church prior to his departure from Bulgaria in 1992. After completing his compulsory military service, the applicant was called to serve in the reserve forces for two months, which he declined. The applicant believes that he was called upon to serve in the reserve forces so that the military could supervise his actions and silence his opinions. As a result of his refusal to serve in the reserve forces, the applicant states that he could face two years imprisonment, if convicted for failing to serve.
[3] In October 1992, the applicant left Bulgaria and following extensive travels, he landed in Canada on July 7, 1995 where he made a claim for Convention refugee status. The applicant also made claims in Holland, Belgium and England, all of which were refused (the applicant left Holland before his claim was determined). The applicant's parents and two brothers continue to reside in Bulgaria.
[4] The applicant's Personal Information Form outlines the details for his claim for Convention refugee status at pages 22 to 24 of the Application Record as follows:
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. . . I fear persecution as a result of my religious beliefs. I am restricted in my freedom to practice my religion and believe that the Government of Bulgaria actively discourages members of my faith from practising. I have experienced harassment by individuals, police and government officials directly and indirectly, as well as discrimination, threats and general intolerance. |
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I am viewed as a member of a cult, a sectarian, by authorities in Bulgaria. I am known to them from my activities as a youth leader in my Church and as an outspoken critic of the discrimination I have outlined above. In my city of Vratza, I was beaten by orthodox church members in an ugly confrontation. I received no help or assistance from police and no charges were laid against those responsible. Our church in Vratza was vandalised. The number 666 was spray painted on the building and windows smashed. I believe (sic) that orthodox members were responsible for the vandalism. |
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In June of 1994 (June 10th), there was a violent attack during mass at the Bulgarian Church of God, of which I am a member. Some people were injured and an older man was severely beaten. I was not harmed but witnessed the event [at the hearing, the applicant testified that he was not present during this attack, as he was out of the country. (Page 107, CRDD's Record)]. On June 22 of that same year, our chruch [sic] meet [sic] at a private hall. Police on that occasion blockaged [sic] the doors to the hall and took other repressive measures against those present. |
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I was physically abused by officers in the Bulgarian army during my service with them. The officers were aware of my religious beliefs and participated in beatings and discriminatory practises. I was denied medical treatment. During 1992, after I had completed my compulsory service in the army, I was called up to serve for two months in the reserve forces. I decline, as I believe it was an attempt to exert control over my activities and silence my opinions by ensuring that I was supervised my [sic] the military. As a result of my refusal to go back to the army, I could potential [sic] face two years in prison if convicted. My father has informed me that he has received information that indicates that upon my return I would so be dealt with. |
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My activities with the church and my beleif [sic] in evangelical protestantism are not tolerated in Bulgaria. I fear persecution and reprisals against myself and my family if I were to return there. I do not have religious freedom there. I left seeking a safe haven and am applying in Canada because I believe this country offers the freedom I have been previously denied. |
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[5] On September 27, 1996, the applicant appeared for a hearing to determine the validity of his refugee claim. During the hearing the applicant submitted a video tape which included an interview with a Bulgarian evangelical pastor, dated November 15, 1995. The applicant included this tape as support for his claim that he had a well-founded fear of persecution based on his religious beliefs. Throughout the interview, the pastor provides a description of the situation facing evangelical Christians in Bulgaria. The video tape outlines the discrimination faced by members of the Bulgarian Evangelical Church of God and members of other evangelical churches.
[6] The panel did not review the video tape during the hearing. On March 26, 1997, the applicant received the CRDD's decision. The relevant portions of the decision provide:
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The panel had ample opportunity to observe the demeanour of the claimant while he gave his evidence. He was evasive and unresponsive in his various questions put to him about his refugee claims in Holland, Belgium and England. The panel sensed that he generally overstated his evidence regarding the liabilities attached to membership in the Bulgarian Church of God and the Bulgarian Evangelical Church of God. He also consistently overstated the animus of the Bulgarian government and general public towards the evangelical movement generally. |
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The panel, relying on the information in Exhibit R-4 prepared by an independent agency, finds that it is a correct statement of the state of affairs in Bulgaria regarding the evangelical movement. The evangelical movement is tolerated, its organized churches have legal standing and the police do investigate attacks by hoodlums directed at the movement. The claimant has not satisfied that the panel that his fear of persecution, should return to Bulgaria, is well-founded. |
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[7] The applicant has raised the following issues in this application for judicial review:
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1. Whether the CRDD erred in ignoring relevant documentary evidence which supported the applicant's refugee claim. |
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2. Whether the CRDD failed its duty to act fairly by not reviewing the evidence provided by the applicant after it had indicated that it would review the evidence and provide the applicant an opportunity to respond to it. |
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1. Ignoring Relevant Evidence
[8] The applicant submits that the CRDD erred by ignoring the video tape evidence which indicates that the Bulgarian government is spreading hatred against members of the Bulgarian Church of God and other evangelical churches in Bulgaria.
[9] The applicant relies on Lai v. Canada (Minister of Employment and Immigration), (1991), 160 N.R. 156 (F.C./A.) and Padilla v. Canada (Minister of Employment and Immigration), A-484-91 (October 6, 1992) (F.C./A.), where the Appeal Division of this Court set aside decisions of the CRDD on the basis that relevant evidence was ignored. In each case, the evidence which was ignored went to establish the applicant's claim to persecution in a specific, rather than in a general sense. The evidence which was ignored corroborated evidence given by each applicant relating to his or her well-founded fear of persecution. In neither case were there negative findings of credibility; rather, in each case the CRDD simply found that there was no well-founded fear of persecution in an objective sense without considering evidence which directly corroborated each claimant's story. In both cases, the Court of Appeal stated that the CRDD was required, at a minimum, to deal with the evidence presented and state why it preferred some pieces of evidence over others.
[10] In Hassan v. Canada (Minister of Employment and Immigration), (1992), 147 N.R. 317 (F.C./A.), the Appeal Division of this Court stated, with regard to documentary evidence, that the CRDD is not required to mention each piece of evidence in its reasons. Justice Heald, writing for the unanimous court, stated at page 318:
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In my view the conclusions of the Board were reasonably open to it based on the totality of the evidence adduced, and consequently, it did not err in law. The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to its decision. The passages from the documentary evidence that are relied on by the appellant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency. My examination of the record before the Board persuades me that it did, in fact, consider and weigh the total evidence in a proper fashion. |
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[11] From the above, it can be concluded that there are two types of evidence which can be presented at CRDD hearings: evidence which is specific to the applicant's claim and which corroborates the applicant's evidence and evidence which is general in form (documentary evidence) and does not specifically deal with the applicant's claim, but which generally deals with country conditions. The Court of Appeal has clearly established that the failure of the CRDD to consider the first type of evidence, and a failure to refer specifically to the first type of evidence in its reasons may vitiate the decision. However, with respect to the second type of evidence, the CRDD is not bound to refer to each piece of evidence. The CRDD must simply weigh the totality of the evidence. Failure to consider the totality of this second type of evidence will result in court intervention.
[12] The applicant submits that the CRDD was under a duty to give reasons why it preferred the documentary evidence supplied by the RCO over the video tape evidence. While these duties may be imposed in the case of direct evidence, the duties with regards to documentary evidence with which the video tape could perhaps be classified, the standards are less stringent.
[13] The case at bar is not the same as the Hassan case, and this case should have a different outcome. Even so, one can paraphrase Mr. Justice Heald's quoted statement, thus: This Court's examination of the record before the CRDD persuades the Court that the CRDD did not, in fact, consider and weigh the total evidence in a proper fashion. The CRDD's conclusion might well have stood, had it but said what it thought of exhibit C-3, the video tape. It could have made a brief finding on the credibility, completeness and relevance of the narrative of Pastor George Bakalov, who was the narrator. The appearance of the CRDD's disposition of the applicant's claim is that the board members just forgot all about the tape, exhibit C-3. Exhibit C-3 was the applicant's principal item of non-testimonial evidence.
2. Natural Justice
[14] The applicant also argues that the CRDD failed its duty to act fairly by not reviewing the evidence provided by the applicant after it had indicated that it would review the evidence and provide the applicant an opportunity to respond to it. Was the CRDD under a duty to allow the applicant to respond to the video tape, after making an undertaking to do so? To deal with this issue, it is necessary to determine whether such an undertaking was made and whether the CRDD failed to fulfil its undertaking.
[15] In support of this argument, the applicant, in paragraphs 5 through 14 of his affidavit (AR pp. 11-13), indicates what are the tapes' contents. That is a concern of the CRDD but not of this Court, except to ascertain that the contents could relate to the applicant's refugee claim, which they do.
[16] Pertinent passages in the hearing transcript found in the CRDD's record - pagination plainly cited (document pages in parentheses), are these:
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PRESIDING MEMBER: * * * then depending on the time we may or may not have an opportunity to view your tape this afternoon. If we don't have an opportunity to view it this afternoon we will adjourn the proceedings, view the tape and if we have any concerns about it we -- there's a possibility we could re-open the hearing. Otherwise, we would then hear submissions from the -- or observations from the Refugee Claims Officer and also any observations you wish to make. Do you understand? |
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CLAIMANT: * * * This is what's actually happening there and there is proof also in the video that I have. |
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CLAIMANT: I know that some of these Churches had difficulties. I can't believe that all these Churches are registered, but I know and the video shows too, that they have problems at the time of registration. They wanted to stop any kind of registration and I don't know what the situation now is and you can see on the video how people are being kicked out from the Churches. |
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PRESIDING MEMBER: I have no further questions. Thank you. I would -- excuse me. Okay, due to our time constraints you've provided us with this tape. We've not had a chance to look at it which is not unusual since much of the documentation that's submitted by claimants especially on the date of the hearing, we don't have an opportunity to see or to read. Now, you've also indicated today that you have certain newspaper articles in the Bulgarian language. |
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PRESIDING MEMBER: Do you mean that the documents Ms. Stoddart has provided this afternoon will have the same material as in your -- |
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PRESIDING MEMBER: --- newspaper article? |
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PRESIDING MEMBER: If they are it will be unnecessary for you to translate. |
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PRESIDING MEMBER: Alright. Then I think it would not be unreasonable to give you 30 days to either provide us with any submissions you may wish to make as to why you feel you should be found to be a Convention refugee. You've indicated to us that you're aware of the Convention and from your evidence it would appear that if you have a well-founded fear of persecution it would be because of your religion or alternatively your objection to military service which might be perceived as a political opinion. So will you then provide us with submissions on those two points? |
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PRESIDING MEMBER: If we don't receive anything from you within 30 days then we will be free to make a decision without hearing from you. If there's some good reason why you can't give us this information in 30 days you may apply for an extension. * * * |
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PRESIDING MEMBER: Thank you, Ms. Stoddart. Then we will expect to receive your additional evidence and your submissions by, today is the 27th --- |
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PRESIDING MEMBER: --- by the 27th of October. This hearing is thus concluded subject to receipt of further evidence of the claimant if he so desires to provide it. |
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[17] So, whether the presiding CRDD member forgot his undertaking recorded on p. 108 - (10), the claimant did not forget it. Now it is true that the CRDD did not promise to invite the claimant to make further comments on his video, in any event. That is beside the point. The CRDD promised to review the video, the claimant's principal item of evidence, and then the panel either insultingly or negligently did not even mention that video in their reasons for decision which dismissed the claimant's claim. That the CRDD owed him ex debito justitiae. After all, that video was not just some obscure paragraph in a plethora of documents: it was his principal evidence as he clearly showed it to be. This is not the kind of evidence referred to by Mr. Justice Heald in the Hassan case, above cited. From its reasons, it cannot even be known whether the CRDD ever did fulfil its promise to view the video. The tribunal fell short of its duty to be fair and to evince natural justice, by not even mentioning whether it did in fact view the video as promised, or even to say what it made of the video. The presiding member did clearly say that, if after viewing the video, the CRDD had "any concerns about it - there's a possibility we could re-open the hearing". Clearly the CRDD ought not to have utterly ignored that video in formulating its decision to deny Convention refugee status.
[18] Whether the evidence furnished through that video, exhibit C-3, be of great or scant weight is for the CRDD, not this Court, to assess. Simply that. This breach of natural justice, then, is not of the same kind as that which occurred in Kaur v. M.E.I., (1993) 21 Imm.L.R. (2d) 301, a decision by Mr. Justice Noël, of this Court, upon which the applicant relies.
[19] Given the failure or neglect of the CRDD even to mention the applicant's principal evidence, its decision of the CRDD dated February 6, 1997, certified over a month later on March 17, 1997, in file no. T96-00287, must be quashed and the applicant's claim remitted to be heard by a newly constituted panel of the CRDD. That new panel, having been informed of these present reasons, will of course assess anew the applicant's whole case, including the weight to be accorded to the video, if the applicant and/or his counsel should decide to tender it to the new panel.
Judge
Ottawa, Ontario
March 18, 1998