Toronto, Ontario, March 29, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
DIANA OVTCHINNIKOVA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The male applicant, Stsiapan Auchynnikau, and his wife, Diana Ovtchinnikova, are citizens of Belarus. They claimed to be Convention refugees or persons in need of protection under section 96 or subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) on the basis of the male applicant's political opinion. The Refugee Protection Division (RPD) of the Immigration and Refugee Protection Board dismissed their claims. They seek judicial review of the negative determination. I have concluded that their application should succeed.
[2] The board's decision turned primarily on credibility. The RPD concluded that there was "valid reason to doubt and to reject the principal claimant's allegations". The board made the following statements:
Counsel for the claimants submitted that the documentary evidence indicates one does not have to have a high political profile to be arrested. The panel does not doubt that is true; however, certain
aspects of the principal claimant's testimony caused it to have concerns as to whether he was arrested or not (Reasons p. 5);
The panel concluded that, on a balance of probabilities, the medical report does not relate to injuries garnered through police arrest and ill treatment. The panel concluded that, on a balance of probabilities, the principal claimant was not arrested and tortured as he alleged (Reasons, p. 7);
The panel concluded that, on a balance of probabilities, the principal claimant's medical condition arose from other causes that were not put before the Board (Reasons, p. 8);
The panel finds, on a balance of probabilities, that the principal claimant was not arrested as he claimed and did not suffer the harassment from the Belarussan (sic) authorities he claimed. Accordingly, it finds that the principal claimant has failed to discharge the onus upon him to establish by means of credible and trustworthy evidence that he would be persecuted in Belarus for a Convention reason. His claim to refugee protection, therefore, fails. (Reasons, p.13).
[3] The RPD, for similar reasons, dismissed the male applicant's claim for protection under subsection 97(1)(a) of the IRPA. Because the female applicant's claim was based on her family membership in relation to the male applicant, her claim also failed.
[4] It is common ground that the crux of the male applicant's claim turned on his allegation that he had been arrested three times, had been detained and tortured twice, and had received a notice of summons to appear before the court in relation to a third incident that gave rise to a third arrest.
[5] Most of the board's credibility findings were based on implausibilities. Not all of them can be said to be patently unreasonable. However, some of the negative credibility findings flow from implausibility findings that cannot be supported on the evidence. To her credit, counsel for the respondent conceded that there were findings that were patently unreasonable.
[6] More importantly, the RPD had before it the following documentary evidence:
(a) Resolution of the Court of the Lenin District of the City of Minsk, Republic of Belarus dated April 27, 2001, depicting a determination of guilty for the offence of "marching in a group of people...shouting loudly and carrying unfurled banners with messages that had not been registered as required by law". The Resolution discloses that the male applicant had been detained at the time of the occurrence and was additionally sentenced to administrative arrest for a period of 10 days;
(b) Resolution of the Court of the Lenin District of the City of Minsk, Republic of Belarus, dated April 29, 2002, depicting a determination of guilty for the offence of participating in a "non-sanctioned march...carrying an unfurled banner with a message that had not been registered as required by law". The Resolution discloses that the male applicant was "apprehended by a police detail of the Department of Internal Affairs". He was sentenced to administrative arrest for a period of 15 days;
(c) Report No. 986 from the office of the Divisional Inspector of Municipal Police Office -1 of the Department of Internal Affairs of the Lenin District in the City of Minsk, dated June 13, 2003, depicting a reported offence, on June 13, 2003, of "unfurled a (illegible) containing a message which had not been registered as required by law";
(d) Summons - Series MIP No. 1629 - signed by Court Executive Petrov A.S. and directed to Ovchinnikov Stepan Viktorovich directing his appearance on July 8, 2003 at 11:00 o'clock in the Court of the Lenin District of the City of Minsk before Judge Zapo.
[7] There is no mention of the above-noted documents in the board's reasons. Counsel for the respondent, candidly and readily, acknowledged that the failure of the RPD to refer to these documents falls squarely within the admonition articulated by Mr. Justice Evans, then of this court, in Cepeda-Guiterrez v. Canada (Minster of Citizenship and Immigration) (1985), 157 F.T.R. 35 (T.D.) that the more important the document, the more willing a court may be to infer, from silence regarding it, that a finding of fact is erroneous and made without regard to the evidence. Counsel agreed that the decision, as written, is not sustainable.
[8] It may be, in the final analysis that the male applicant will be found to lack credibility. If that is so, it is incumbent upon the decision-maker to explain the adverse credibility findings in clear and unmistakable terms: Hilov. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[9] For the foregoing reasons, the application will be allowed. Neither counsel suggested a question for certification and none arises.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted for determination before a differently constituted Refugee Protection Division of the Immigration and Refugee Board.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4128-05
STYLE OF CAUSE: STSIAPAN AUCHYNNIKAU, DIANA OVTCHINNIKOVA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 29, 2006
AND JUDGMENT: LAYDEN-STEVENSON J.
APPEARANCES:
Mr. Mordechai Wasserman For the Applicants
Ms. Bridget A. O'Leary For the Respondent
SOLICITORS OF RECORD:
Mordechai Wasserman
Barrister & Solicitor
Toronto, ON For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent