Date: 19990128
Docket: IMM-2350-98
OTTAWA, Ontario, January 28, 1999
BEFORE: Paul Rouleau J.
Between:
Vladimir LEVITSKII,
Igor LEVITSKII, - and -
Andrei LEVITSKII
Plaintiff,
And:
THE MINISTER,
Defendant.
ORDER
ROULEAU J.
[1]The application for judicial review is allowed and the matter is referred back to a newly constituted tribunal for re-hearing.
| P. ROULEAU
JUDGE |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990128
Docket: IMM-2350-98
Between:
Vladimir LEVITSKII,
Igor LEVITSKII, - and -
Andrei LEVITSKII
Plaintiff,
And:
THE MINISTER,
Defendant.
ORDER
ROULEAU J.
[1] This is an application for judicial review brought from the decision of the Refugee Division of the Immigration and Refugee Board ("the tribunal") on April 23, 1998 that the applicants are not Convention refugees.
[2] Vladimir Levitskii is the father of Igor and Andrei Levitskii. The three applicants are citizens of Russia. They are claiming refugee status on the basis of a well-founded fear of persecution because of their Jewish nationality.
[3] Vladimir Levitskii held a position of inspector with the administrative commission of the Sochi central region in Russia. His problems began on January 9, 1996 when he discovered a tax fraud committed in a business named Tour headed by one Chestopalov. Mr. Levitskii wrote up a report on his investigation which imposed a fine. The applicant sent his report to the Commission. Mr. Chestopalov threatened revenge. He repeated his threats some days later, adding these words: [TRANSLATION] "And it is obvious you are a Jew-face: you will remember me for a long time".
[4] On January 15, 1996, Vladimir Levitskii was attacked and beaten by three men who called him a [TRANSLATION] "Jew-face" and asserted that he had written the report. He was hospitalized because of this incident. On February 1, 1996 he filed a complaint of assault with the police. On February 10, 1996 he was summoned and questioned by the police. He was later told that a criminal file would not be opened. On March 7, 1996 the applicant complained to the prosecution department of the bureau of internal affairs. The head of the department refused to help him. Instead, he told him to go and complain to the Israelis.
[5] In the next few days Mr. Levitskii received telephone threats. On July 7, 1996 he and his two sons were attacked and beaten. They were abused as Jewish freaks. All had to go into hospital. They subsequently filed complaints with the police in vain on July 25, 1996. The investigator told them to go away, saying he had had enough of Jews.
[6] In August 1996 a fire of criminal origin damaged Igor Levitskii's service vehicle. He again complained to the police, without success. The telephone threats continued. The Levitskii family had to move.
[7] On September 14, 1996 Andrei Levitskii was attacked and beaten in a discotheque. On March 1, 1997 Igor and Andrei were attacked and beaten at the entrance to their house. Their attackers suggested [TRANSLATION] "get away to Israel while you are still alive". They filed complaints with the police and decided to move from Sochi.
[8] Holding American visas, Vladimir Levitskii and his son Andrei went to the U.S. Igor, for his part, held a Canadian visa and came directly to Canada.
[9] The applicants' testimony was credible. However, the tribunal decided that they were not Convention refugees on the ground that they not establish a connection between the criminality of which they were victims and one of the five grounds stated in the definition of a Convention refugee. The tribunal said the following:
[TRANSLATION]
The tribunal feels that the case of the Levitskii family is an instance of revenge orchestrated by the man Chestopalov, who was upset about being shown up as committing fraud. The claimant Vladimir Levitskii realized this when he wrote, in answer to question 37 on the Personal Information File [PIF], the following: I already knew that everything came from the director of the Tour base, Chestopalov . . .
Chestopalov's desire for revenge was reflected in what the people who attacked the members of the Levitskii family said . . . The documentary evidence in the record indicates that Russia is riddled with corruption and organized crime. This undoubtedly facilitated Chestopalov's criminal plan.
[10] At the hearing on March 31, 1998 the claimant Vladimir Levitskii admitted that the attacks directed against himself and his sons resulted from his work as an inspector.
[11] The central issue in this application is to determine whether the tribunal erred in concluding that the acts suffered by the applicants were not related to their Jewish nationality.
[12] A presumption exists that the tribunal is presumed to have considered all the evidence before reaching its decision. Unless the applicants show that the tribunal's conclusion was patently unreasonable on the evidence submitted at the hearing, there is no basis for intervening in its decision.
[13] The respondent argued essentially that no attacks were directed against the plaintiffs before the incident in which he reported the tax fraud. It was not until then that the applicants became the victims of attacks and of a lack of cooperation by the police forces. At the time of the originating incident the director of the Tour business did not even know the claimants were Jewish.
[14] On the contrary, I consider that the tribunal erred in not considering the evidence as a whole. The documentary evidence established that several Russian nationalist organizations exist in Russia which attack minorities. The applicants testified that each attack and refusal by the police to provide protection has been accompanied by racial insults. In particular, Vladimir Levitskii stated the following in his Personal Information Form:
[TRANSLATION]
They would not leave me to live or work in peace. I was telephoned at home and at work, I was threatened, as were my sons, that they would fix us, the Jew bastards, as they put it: but I could do nothing and I did not know who to ask for protection. The police itself was against Jews. I already knew that everything resulted from the manager at the A Tour base, Chestopalov, and that in covering for him the police were in league with him.
[15] Similarly, in their Personal Information Forms the applicants reported they were the victims of racism before the tax fraud matter. Igor Levitskii alleged he had encountered difficulties in his military service and in his search for employment in 1988 because of his Jewish nationality. He stated:
[TRANSLATION]
I was looking for work for some time, but . . . they would not hire me: We don't need Jews, we have enough problems without them. Finally I found a job . . . I worked in peace until it was learned that I was of Jewish origin.
[16] Andrei Levitskii, for his part, said the following:
[TRANSLATION]
In June 1993 I went to study automobile driving for professional drivers. I studied for six months and successfully completed these courses. After the courses I began working for a private company as a driver. Everything went well until it was learned that I was a Jew. Previously I worked on a good vehicle, but afterwards I was given one of the worst vehicles, and when it broke down they accused me, abusing me with obscenities because of my nationality.
[17] There is no indication that the tribunal considered the discriminatory acts suffered by Igor, Andrei and Vladimir before January 1996 or the racial connotations of the attacks and the refusal of the authorities to provide protection. The tribunal had a duty to explicitly consider this evidence in order to determine whether the attacks against the applicants were motivated or significantly worsened by their Jewish nationality.
[18] The application for judicial review is allowed and the matter is referred back to a newly constituted tribunal.
| P. ROULEAU
JUDGE |
OTTAWA, Ontario
January 28, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-2350-98
STYLE OF CAUSE:VLADIMIR LEVITSKII, IGOR LEVITSKII AND
ANDREI LEVITSKII and THE MINISTER
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: JANUARY 22, 1999
REASONS FOR ORDER BY: ROULEAU J.
DATED: JANUARY 28, 1999
APPEARANCES:
JACQUES BEAUCHEMIN FOR THE APPLICANT
PATRICIA DESLAURIERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALARIE, LEGAULT, BEAUCHEMIN, PAQUIN FOR THE APPLICANT
JOBIN ET BRISSON
MONTRÉAL
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY GENERAL OF CANADA