Date: 20010212
Docket: IMM-1958-00
Neutral citation: 2001 FCT 55
BETWEEN:
MAKAROV NIKOLAI
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for leave and judicial review from a decision by the Refugee Division (hereinafter "the tribunal") on March 16, 2000 that the plaintiff is not a Convention refugee.
FACTS
[2] The plaintiff is a Russian national, 42 years old. He alleged a well-founded fear of persecution for his Baptist religion.
[3] The plaintiff's fear of persecution is based on events that occurred at Nizhny Novgorod when the plaintiff was a member of the Baptist Church.
[4] An unidentified group, which had blocked up the entry door to the church where the Baptists prayed, attacked members of the church, except the claimant, for breaking down the door and going inside to pray. The church's property was allegedly confiscated by the supposed attackers.
[5] The plaintiff said that when he was going to Moscow with a letter to inform the media about the incidents he was attacked and his briefcase snatched from him. He said he was injured and fractured his foot. The plaintiff said he was subsequently threatened on the telephone. A court proceeding for the return of the place of worship supposedly took place but went against the parties. The day before the hearing the plaintiff said he was beaten and told to clear out of Russia.
TRIBUNAL'S DECISION
[6] The tribunal concluded that the plaintiff was not credible.
[7] The tribunal noted that the plaintiff, who claimed to be an adherent of the Baptist religion and to have come to Canada to escape persecution and practise his religion, currently attended the Pentecostal Church in Montréal rather than the Baptist Church. In the tribunal's view, this attitude indicated that the plaintiff did not consistently hold to the Baptist faith. The tribunal was not persuaded that the plaintiff left his country so he could practise his alleged religion in complete freedom.
[8] The tribunal further noted that, in answer to question 37 on his personal information form (hereinafter "PIF"), the plaintiff indicated that his alleged persecutors were unknown persons, whereas before the tribunal he gave a completely different version, maintaining that they were members of a fascist group known as the [TRANSLATION] "Russian National Centre". The plaintiff explained this omission by the fact that he had tried to give information as briefly as possible on his PIF. The tribunal rejected this explanation and indicated that this major omission deprived the plaintiff's claim of all credibility.
[9] The tribunal further noted that the plaintiff himself did not regard the situation of Baptists in Russia as one of persecution. The plaintiff said in his oral testimony:
[TRANSLATION]
In Russia, there is no longer any religious persecution. Three religions are officially recognized: Orthodox, Jews and Islam. The other religions have some problems. There are Baptist programs on television, there are religions broadcasts on community channels accessible to the public, in English with simultaneous interpretation in Russian.
[10] According to the tribunal, these statements by the plaintiff were corroborated by the documentary evidence in the record.
[11] The tribunal therefore could not conclude that religious persecution against Baptists existed in Russia. The tribunal also did not believe that the confiscation of the church by a group of individuals and the unsuccessful court proceeding to regaining it before a judge had any connection whatever with religious persecution.
[12] The tribunal concluded that the evidence submitted was insufficient to enable it to find that there was a reasonable chance of persecution if he returned to his country.
PLAINTIFF'S ARGUMENTS
[13] The plaintiff alleged that his right of access to a full and exact record and his right to a full and fair hearing were infringed by the tribunal's inability to give him the tapes of the hearing. As the result of a technical problem, it was not possible to record the hearing.
[14] The plaintiff therefore argued that his application was treated unfairly as there were no recordings and the decision was made solely on the basis of summary notes taken by the members of the tribunal during the hearing.
[15] The plaintiff further argued that the tribunal erred in law when it concluded that the plaintiff was not credible.
[16] The plaintiff maintained that the tribunal might take a view contrary to that expressed by the plaintiff about the extent of persecution of persons of the Baptist religion in Russia, but this could not be the basis for a finding that the plaintiff lacked credibility when he expressed a subjective fear of persecution. The plaintiff alleged that when an applicant swore that certain allegations were true, it created a presumption that they were unless some reason existed to doubt them.
[17] The plaintiff argued that the tribunal erred in considering that the plaintiff had changed his religion because he went to the Pentecostal Church in Montréal a few times. The plaintiff maintained that the tribunal erred by not considering his explanation. The fact that the plaintiff attended the Pentecostal Church, which offered services in Russian, when the Baptist Church only offered services in English, a language the plaintiff did not understand, did not in any way alter the plaintiff's beliefs and his Baptist faith. Further, the plaintiff maintained that his attitude was entirely justifiable for a person coming from a former Marxist country where there were no special provisions for each religious community.
[18] The plaintiff further alleged that the tribunal erred in concluding that the plaintiff was not credible because he indicated on his PIF that his supposed persecutors were unknown persons, and in his testimony indicated that the persecutors were members of a fascist group known as the [TRANSLATION] "Russian National Centre".
[19] In the plaintiff's submission, he clearly explained in his testimony that whether the aggressors were part of a fascist group or not was not a critical point that should have been mentioned in his PIF.
[20] The plaintiff further argued that the tribunal erred in law in concluding that there was no religious persecution in Russia, presenting the documentary evidence in a truncated fashion and one that did not reflect the reality.
[21] In the plaintiff's submission, the fact of broadcasting a service on television could not be interpreted as eloquent and decisive proof in support of the tribunal's conclusion that there was no religious persecution against Baptists in Russia.
[22] The plaintiff maintained that the tribunal erred in rejecting the three medical certificates issued by various Russian hospitals, which were entered in evidence before it. These certificates corroborated the plaintiff's testimony. By ignoring them completely, therefore, the tribunal was in error.
DEFENDANT'S ARGUMENTS
[23] For his part, the defendant maintained that the tribunal had no legal duty to keep a full record of its hearings and that the lack of a transcript could not be made a basis for quashing the decision.
[24] The defendant argued that the tribunal was right to conclude that the plaintiff lacked credibility, in view of his omissions and major contradictions in his testimony and his actions.
[25] The defendant alleged that the tribunal was right to conclude that the plaintiff did not have a fear of persecution since he went to the Pentecostal Church in Montréal. The defendant maintained that the tribunal could validly rely on actions found to be inconsistent with a fear of persecution as a basis for dismissing the refugee application.
[26] The defendant also maintained that all the key incidents in a claim should be set out in the PIF of a refugee status claimant and that the tribunal did not err in objecting that the plaintiff had omitted an important fact from his PIF.
[27] The defendant further noted that the tribunal could attach greater weight to documentary evidence or to certain points in that evidence than a claimant's testimony.
[28] The defendant noted that the fact the tribunal did not mention a point in the evidence does not mean it did not consider that point. In the defendant's submission, the tribunal's conclusions were based completely on the evidence and were arrived at in accordance with the rules laid down by the courts.
POINTS AT ISSUE
[29] 1. Was the rule of natural justice infringed by the fact that tapes of the hearing were not available?
2. Did the tribunal err in concluding that the plaintiff was not credible?
ANALYSIS
1. Was the rule of natural justice infringed by the fact that tapes of the hearing were not available?
[30] In Zeeshan Ahmed v. M.C.I., [2000] F.C.J. No. 739 (F.C.T.D.), Dawson J. explained the test that should be used when a tape of a hearing is not available.
The jurisprudence is to the effect that, in the absence of any statutory provision requiring recording, the Court must determine whether the record before it allows it to properly dispose of the application for judicial review. If the record does allow the Court to properly dispose of the application, the absence of the transcript will not violate the rules of natural justice. (See City of Montréal v. Canadian Union of Public Employees, Local 301, [1997] 1 S.C.R. 793.)
In the present case, there is no statutory right to a recording. Therefore, the issue to be determined is whether the record before the Court allows it to properly dispose of the application for judicial review. If there is a serious possibility that the absence of a transcript will deny the applicant a proper review, a new hearing must be ordered.
[31] The case at bar turns on the question of the plaintiff's credibility. To determine whether the absence of a transcript compromised the plaintiff's chances of having proper judicial review of the tribunal's decision, I must examine the questions raised by the plaintiff.
2. Did the tribunal err in concluding that the plaintiff was not credible?
[32] The plaintiff alleged that the tribunal erred in concluding that he had changed his religion because he attended the Pentecostal Church in Montréal a few times. The plaintiff gave an explanation of this fact but the tribunal did not accept his explanation.
[33] In this regard, the transcript of the hearing would not have been of any use since the parties agreed on what was said at the hearing. In its decision, the tribunal acknowledged that the plaintiff had explained his religious conduct by saying that the preaching at the Pentecostal Church was the same as the Baptist Church and that at the Pentecostal Church it was in Russian. The same explanation was also put forward by the plaintiff in his affidavit and his memorandum. Further, the plaintiff did not maintain that the tribunal misinterpreted his explanation. What the plaintiff actually alleged was that the tribunal erred in not accepting the explanation.
[34] The point which I must consider, therefore, is whether the tribunal erred in not accepting the plaintiff's explanation.
[35] In Razm v. M.C.I., [1999] F.C.J. No. 373 (F.C.T.D.), Lutfy J. indicated the test for reviewing a conclusion by a tribunal about the credibility of testimony:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
[36] The plaintiff must therefore show that the tribunal's finding was patently unreasonable.
[37] In this regard, the plaintiff relied on the following passage from Les religions dans le monde: L'état des religions, which in his view explains his actions:
[TRANSLATION]
Union of Baptists and Evangelical Christians. This organization consists of four evangelical communities: Baptists and evangelical Christians, the majority, Pentecosts and Mennonites. These communities, which were initially opposed to each other, were joined after the war on the crest of a wave of patriotic union and lead a tolerated existence. Established in the lower levels of society, especially among workers, they have a loose structure and their religious practice essentially consists of lengthy group prayers.
[38] The plaintiff maintained that it was quite understandable for someone coming from a former Marxist country where there were no special provisions for each religious community to sometimes attend a Pentecostal church where the services were held in Russian. Such attendance did not in any way alter the plaintiff's beliefs or his Baptist faith.
[39] The defendant maintained, for his part, that the tribunal could rely on actions considered inconsistent with a fear of persecution as a basis for dismissing his application. In support of this assertion, the defendant cited Safakhoo v. M.C.I., [1997] F.C.J. No. 440 (F.C.T.D.), in which Pinard J. indicated:
It is established in the jurisprudence of this Court that conduct inconsistent with a well-founded fear of persecution may properly be relied upon by the Board in rejecting a refugee claim (see for example Cabellero et al. v. M.E.I. (1993), 154 N.R. 345, at p. 346 (F.C.A.)).
[40] However, I have to admit that it seems to be going too far to say that the fact the plaintiff attended a Pentecostal church in Montréal is an indication that the plaintiff's Baptist faith lacks consistency and that he did not leave his country so as to practise his religion in complete freedom. This conclusion seems especially unwarranted in view of the plaintiff's explanations that only the Pentecostal church offered services in Russian and that he could not understand services in English by the Baptist church since he did not speak English. Further, the documentary extract titled Les religions dans le monde makes it clear that an organization exists made up of Baptists
and Pentecostal communities, thereby establishing a connection between these religious communities and providing an explanation for the plaintiff's comment that the preaching at the Pentecostal church was the same.
[41] In my opinion, it was unreasonable for the tribunal to conclude that these actions by the plaintiff showed that his Baptist faith lacked consistency and that he did not leave his country in order to practise his religion in complete freedom.
[42] As regards the plaintiff's failure to indicate the affiliation of his attackers with a fascist organization, the tribunal dismissed the explanation that he tried to give as brief information as possible on his PIF. The tribunal concluded that this deprived the plaintiff's claim of all credibility.
[43] In this regard, the plaintiff maintained that he testified clearly that whether the attackers were part of a fascist group or not was not a decisive point that should have been mentioned in his PIF.
[44] The plaintiff maintained that the tribunal should have taken his explanation into account and committed an error of law when it concluded that the omission deprived the plaintiff's claim of all credibility. I do not think the transcript is necessary in order to answer this question.
[45] The defendant cited Basseghi v. M.E.I., [1994] F.C.J. No. 1867 (F.C.T.D.), in which Teitelbaum J. concluded:
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.
[46] In the case at bar, was it patently unreasonable of the tribunal to conclude that the omission from his PIF of the name of the fascist group which attacked the religious community to which the plaintiff belonged deprived the plaintiff's claim of all credibility? Was this a relevant fact which should have been included in the plaintiff's PIF?
[47] I do not think the plaintiff's failure to indicate the name of the group which attacked the Baptists when they were praying is a major omission, as it was described by the tribunal. I also do not feel that this omission deprived the plaintiff's claim of all credibility.
[48] However, I have to admit that such an omission may influence a tribunal's view of a witness's credibility, when taken together with other omissions or contradictions appearing in a plaintiff's testimony. Nonetheless, to conclude from that that the omission completely undermined the credibility of a claim is unreasonable. The relevant and important fact was that the plaintiff was attacked by a group when he was praying. The name of the group which attacked the plaintiff is more in the nature of an explanation of the information contained in the PIF. That information does not contradict the plaintiff's testimony in his PIF.
[49] The plaintiff further argued that the tribunal erred in concluding that the plaintiff did not regard the situation of Baptists in Russia as one of persecution. The plaintiff alleged that his view has always been that there is persecution and that it is more noticeable at the local level. The fact that a service is broadcast on television cannot be interpreted as eloquent and decisive proof of the lack of religious persecution of Baptists in Russia.
[50] On this point it would have been useful to have the transcript, so as to have an exact idea of the plaintiff's opinion on the matter. However, I cannot conclude that the plaintiff would not receive a proper consideration of his application because the transcript was missing. Even if the tribunal erred in its interpretation of the plaintiff's testimony, the tribunal also relied on the documentary evidence in the record which supports its conclusion that there is no religious persecution of Baptists in Russia.
[51] The tribunal can attach greater weight to the documentary evidence or to certain of its contents than to a plaintiff's testimony. As was indicated by Pinard J. in Mamontov et al. v. M.C.I., [1998] F.C.J. No. 815 (F.C.T.D.):
Since the decision of the Federal Court of Appeal in Zhou v. M.E.I. (July 18, 1994), A-492-91, it is settled law that it is ordinarily open to the Refugee Division to place greater weight on the documentary evidence submitted by the refugee hearing officer than on an applicant's testimony. In that decision, Mr. Justice Linden wrote the following:
We are not persuaded that the Refugee Division made any error that would warrant our interference. The material relied on by the Board was properly adduced as evidence. The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely. The other matters raised are also without merit. The appeal will be dismissed.
[52] Accordingly, in view of the documentary evidence I cannot conclude that the tribunal erred when it found that there was no religious persecution of Baptists in Russia. It should be borne in mind that the plaintiff must show that he has a subjective fear of being persecuted and that that fear must also be objectively justified (see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). That finding by the tribunal in the case at bar was justified and reasonable based on the evidence which was before it.
[53] As regards the medical certificates submitted by the plaintiff, it is well settled that the tribunal does not have to mention each aspect of the evidence. The tribunal did not question this part of the defendant's testimony and I cannot assume that because the tribunal did not mention this evidence in its decision, it did not consider the evidence.
[54] In Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (F.C.A.), the Federal Court of Appeal indicated:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.
[55] In Cepeda-Gutierrez v. Canada (M.C.I.) (1998), 157 F.T.R. 35 (F.C.T.D.), Evans J.
explained:
In my view, the evidence was so important to the applicant's case that it can be inferred from the Refugee Division's failure to mention it in its reasons that the finding of fact was made without regard to it. This inference is made easier to draw because the Board's reasons dealt with other items of evidence indicating that a return would not be unduly harsh. The inclusion of the "boilerplate" assertion that the Board considered all the evidence before it is not sufficient to prevent this inference from being drawn, given the importance of the evidence to the applicant's claim.
[56] In the case at bar, I cannot accept that the tribunal erred in not mentioning the plaintiff's medical certificate. The evidence was not essential to the tribunal's conclusion since the tribunal found that in view of the documentary evidence entered in the record there was no reasonable chance of persecution. Accordingly, the mention of the certificates would not have altered the tribunal's conclusion regarding the reasonable chance of persecution.
[57] Were the errors made by the tribunal sufficient to require the Court's intervention?
[58] Although my conclusion was that the tribunal made unreasonable errors when it found that the plaintiff was not credible, because he had attended the Pentecostal Church and because he had failed to indicate the name of the group that attacked the Baptists in Russia, I do not think these errors are sufficient to require intervention by the Court.
[59] Despite these errors, the tribunal concluded that the plaintiff had not objectively established a reasonable chance of persecution. This conclusion was supported by the evidence and was not vitiated by any error. Consequently, this Court's intervention is not necessary and the instant motion is dismissed.
[60] The parties did not submit any question for certification.
|
Pierre Blais Judge |
OTTAWA, ONTARIO
February 12, 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-1958-00
STYLE OF CAUSE: MAKAROV NIKOLAI v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JAN. 31, 2001
REASONS FOR ORDER BY: BLAIS J.
DATED: FEB. 12, 2001
APPEARANCES:
LIA CRISTINARIU FOR THE APPLICANT
MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
LIA CRISTINARIU FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada