Date: 20050208
Docket: IMM-2851-04
Citation: 2005 FC 203
Toronto, Ontario, February 8th, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
ALIAKSANDR VALERIEVICH PANKOU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Aliaksandr Valerievich Pankou alleges that he has a well-founded fear of persecution in Belarus because of his political opinions. The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Pankou's refugee claim, finding that he had failed to provide sufficient credible evidence to support his claim.
[2] Mr. Pankou asserts that several of the Board's key credibility findings were flawed, and that, as a result, the Board's decision should be set aside.
[3] After addressing the issue of the appropriate standard of review, I will consider each of the disputed credibility findings in turn.
Standard of Review
[4] The majority of the disputed findings are findings of fact. As such, the standard of review is patent unreasonableness: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
Mr. Pankou's Political Profile
[5] The Board found that Mr. Pankou failed to provide credible or trustworthy evidence that he had enough of a profile as a political activist with the 'Charter 97' political movement as to attract the attention of police or military authorities. In coming to this conclusion, the Board noted that Mr. Pankou failed to provide any documentation to corroborate his membership in the organization.
[6] Mr. Pankou testified that he had endeavoured to obtain documentation to corroborate his membership in the Charter 97 movement. According to Mr. Pankou, his former friends within the organization refused to assist him, as they consider him a traitor to the movement for having left Belarus.
[7] The Board found this explanation to be implausible, given the degree of persecution that Mr. Pankou says he endured, and the commitment that he claims to have made to the cause.
[8] In support of his claim that he was unable to obtain any documents from his former colleagues in the Charter 97 movement, Mr. Pankou produced a copy of a news article from Belarus at his refugee hearing. This article describes the difficulty that another individual had in obtaining documents from former political associates in Belarus to support that individual's refugee claim. According to the article, the individual in question encountered a similar unwillingness on the part of his former associates to assist in documenting the claim, because the associates viewed the individual as having betrayed the cause.
[9] It was open to the Board to reject this evidence, but given that it arguably provided some independent corroboration of Mr. Pankou's testimony as it related to the central issue of his political profile, it was not open to the Board to simply ignore it: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.). To do so, in my view, constitutes a reviewable error.
[10] Counsel for the Respondent has directed me to other evidence in the record that, she says, supports the Board's finding that Mr. Pankou failed to establish his political profile. In this regard, I adopt the reasons of Justice O'Reilly in Ako v. Minister of Citizenship and Immigration, [2005] F.C.J. No. 5, where he observed that "[T]he Board's decision and reasons must stand on their own. It is not open to the Respondent to find alternative grounds, not recognized by the Board, for its conclusions. The Board's decision cannot be sustained on grounds that it did not even mention".
Mr. Pankou's Level of Involvement with Charter 97
[11] The Board drew a negative inference from what it said was the inconsistency between Mr. Pankou's claim that he was a low-level participant in Charter 97 activities, and his evidence that he was an active, significant member of the group.
[12] I have carefully reviewed Mr. Pankou's Personal Information Form and the testimony that he gave at his refugee hearing. Although he has used different language at different points in these proceedings to describe the extent of his involvement in the Charter 97 movement, there is no real inconsistency in Mr. Pankou's evidence on this point: he has maintained throughout that he was an active, albeit low-level member of Charter 97.
The Failure of Mr. Pankou to Report his Mistreatment to Charter 97
[13] The Board found that Mr. Pankou did not report the mistreatment that he allegedly suffered at the hands of the police to Charter 97, as the mistreatment did not occur.
[14] The Respondent concedes that the Board erred in this regard, by failing to consider the explanation provided by Mr. Pankou for not complaining to Charter 97 about his mistreatment by the police. However, the Respondent submits that this error, by itself, is not sufficiently material as to warrant the Board's decision being set aside.
[15] While that may be true, this is not the only error committed by the Board in its assessment of Mr. Pankou's credibility. There are at least two other errors, one of which relates to the central issue of Mr. Pankou's political profile.
[16] I cannot say with any certainty that the Board would have come to the same conclusion had these errors not been made. As a consequence, the application for judicial review is allowed.
Certification
[17] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2851-04
STYLE OF CAUSE: ALIAKSANDR VALERIEVICH PANKOU
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 7, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: FEBRUARY 8, 2005
APPEARANCES BY:
Hilary Evans Cameron FOR THE APPLICANT
Alison Engel-Yan FOR THE RESPONDENT
SOLICITORS OF RECORD:
VanderVennen Lehrer
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT