Quebec, Quebec, August 16, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated October 12, 2005 wherein the Board determined that Mr. Stankov (the respondent) was a Convention refugee.
FACTS
[2] The respondent is a citizen of Bulgaria. He claims to have suffered persecution in Bulgaria based on his sexual orientation.
[3] The respondent asserts that he was beaten, detained and humiliated on several occasions by the police in Sofia, Bulgaria. He alleges that in September 1998 he entered the Bulgarian National Sports Academy (the Academy) in Sofia and trained as a wrestler during which time he went to a club frequented by homosexuals called Luna. On February 2, 2002, he and his partner were confronted by police when they were leaving the club. He alleges to have been beaten with batons and left lying on the ground. He was taken to hospital by a taxi driver and spent a day undergoing treatment.
[4] The respondent alleges that on February 10, 2002, he went to the police to report the beating. While at the police station he was threatened, intimidated and detained for twenty-four hours. Subsequently, in March 2002, he submits that he was expelled from the Academy for being a homosexual.
[5] The respondent fled Bulgaria on June 21, 2002 and came to Canada where he made a refugee claim on June 25, 2002.
ISSUES
[6] 1. Did the Board breach the principals of natural justice?
2. Did the Board fail to consider evidence properly put before it?
ANALYSIS
1. Did the Board breach the principals of natural justice?
[7] In February 2003, counsel for the applicant filed a Notice of Intent to Participate in the respondent’s refugee claim. The basis of the intervention was the credibility of the respondent’s evidence. Initially the applicant’s counsel indicated that he would be attending in person at the hearing as the respondent had outstanding criminal charges involving fraud and deceit. The applicant filed documentary and legal submissions with the Board in February 2003.
[8] The respondent’s refugee hearing was originally set down for April 20, 2004. It was postponed on consent until September 8, 2004. Just prior to the September 8 sitting of the respondent’s claim, the applicant’s counsel became aware that the charges against the respondent had been withdrawn in June 2004. As such, the applicant informed the Board in writing that it would not be attending the hearing in person. The aforementioned letter stated the following:
The undersigned has recently learned that the claimant’s Canadian criminal charges have been withdrawn. Consequently, the Minister will no longer be represented at the hearing by counsel and instead, relies on the disclosure packages that were previously submitted. This should not be interpreted as an opinion as to the merits of this refugee claim.
[9] At the hearing, the Board marked the aforementioned letter as document M-3. The applicant alleges that the Board interpreted the letter as confirmation of the Minister’s desire not to participate in the refugee hearing in any capacity. The Board noted the following in its decision:
Initially, the Minister’s counsel had submitted a notice of intent to participate because of the claimant’s criminal record in Canada; however, on September 7, 2004 the Minister’s counsel decided not to participate because the claimant’s Canadian criminal charges had been withdrawn.
[10] The applicant asserts that the above statement illustrates that the Board was under the impression that the applicant was completely withdrawing from the refugee hearing. As such, the applicant alleges that the Board, in making its refugee determination, never consulted the documentary evidence submitted by the applicant.
[11] The applicant asserts that it never intended to withdraw its participation from the hearing. The applicant did not wish to participate in person, but it still wanted its documentary evidence to be consulted. The applicant asserts that the Board erred in interpreting the applicant’s letter as a complete withdrawal from the hearing.
[12] To support its position, the applicant asserts the Board’s findings regarding the credibility of the respondent are illogical given the applicant’s submissions to the Board. As such, the only explanation for such findings is that the Board did not consult the applicant’s submissions because it considered that the applicant had withdrawn from the hearing. In other words, the Board could not have come to the decision it did if it had consulted the applicant’s submissions.
[13] The applicant asserts that the Board accepted as evidence of the respondent’s risk, the fact that he was expelled from the Academy in March 2002 for being a homosexual. The Board stated the following in its decision:
The claimant said that he was detained for twenty-four hours and subsequently in March 2002, he alleges that he was expelled from high school when they found out that he was gay and that he had been frequenting a gay club. I find on a balance of probabilities, that the claimant was subjected to what he alleges.
[14] It would seem that the Board erred by stating the respondent was expelled from high school in March 2002. The documentary evidence illustrates that the respondent graduated high school in 1997 and that in March 2002 he was attending the Academy. The Board no doubt meant to write that he was expelled from the Academy. Despite the fact that the applicant had submitted documents to disprove the fact that the respondent was not expelled from the Academy in March of 2002, the Board still came to the conclusion that the respondent’s claim was credible. The documents that the applicant submitted to illustrate that the respondent was not expelled were marked as exhibit M-4 of the Board’s documents. However, on the list of documents consulted by the Board, this exhibit is crossed off.
[15] The respondent concedes that on the exhibit sheet, M-4 has been crossed out. However, the respondent maintains that the applicant’s documentary information was accepted and entered into evidence and considered during the proceeding. To justify such a position, the respondent mentions that over the course of the hearing, the Board member asked questions of the respondent using documents in M-4. As such, the respondent alleges that the applicant was not denied the right to participate in the refugee hearing.
[16] The applicant acknowledges that the Board member made reference to documents in M-4. However, the applicant also notes that M-4 contained documents illustrating that the applicant was a student of the Academy and a member of the Wrestling Federation as well as documents dealing with the criminal record of the respondent. The applicant argues that the Board member’s reference to M-4 was in relation to the document concerning the respondent’s criminal record in Bulgaria and not the documents dealing with the Wrestling Federation and the Academy. As noted by the Board member, the documents containing the criminal record in Bulgaria were submitted by Interpol. As such, unlike the Wrestling Federation letters, the Bulgarian criminal record document was not part of the applicant’s submissions.
[17] The respondent alleged in his PIF that he was expelled from the Academy and that this formed a basis for his fear of persecution. However, there was clear evidence brought before the panel by the applicant which illustrated that the respondent had not been expelled from the Academy. The panel does not mention any of this in its decision. Furthermore, the evidence brought by the applicant concerning membership in the Academy (exhibit M-4), had been crossed off the document index. In light of this, even though M-4 is mentioned in the transcript, I find that the documents submitted by the applicant were ignored because the Board was of the opinion that the Minister had withdrawn from the hearing.
[18] Although the applicant was not physically present at the hearing, its documentary evidence which was submitted for use at the hearing was not consulted. Such documentary evidence was not consulted because the Board was under the impression that the applicant had withdrawn from all forms of participation, which was clearly not the case. As such, I find that there was a breach of natural justice in that the applicant was denied the right to be heard.
Further breach of natural justice
[19] As noted above, the respondent’s refugee hearing was originally set for April 20, 2004. It was postponed on consent until September 8, 2004. However, as was mentioned by the applicant, at the first sitting of the refugee hearing on April 20, 2004, the Board authorized the acquisition of information to authenticate the Military Medical Exchange Card which was the medical report provided by the respondent to support his statement that he was assaulted and seriously injured by the Bulgarian police and was therefore hospitalized for a day.
[20] On September 17, 2004, the results of the authentication process contained in an Acquisition of Information Form (AIF) were sent by the Refugee Protection Officer (RPO) to the Board, respondent’s counsel and the Minister’s counsel. The results stated the following.
After verification in the medical books of the emergency surgical, traumatic and neurosurgical surgeries (emergency consulting rooms) there were not been found record of consultations made of a person named Todor Stankov, at the date indicated in the medical certificate.
Signed by Colonel Pamchev, MD
Deputy Manager of the Military Medical Academy
(Tribunal Record, pages 66-72)
[21] By letter dated October 6, 2004, the respondent’s counsel requested additional time to prepare a response to the AIF. The respondent was subsequently granted an extension of time. The applicant alleges that he was never informed of the request for an extension of time, nor the fact that an extension was granted. By letter dated October 22, 2004, the respondent, through counsel, submitted lengthy submissions addressing the AIF and providing his explanation for the lack of authentication of his medical document. Again there is no evidence that these submissions were provided to the Minister’s counsel for response.
[22] In its decision the Board concluded the following regarding the attack by police in February 2002:
With regards to his alleged persecution, the claimant submitted a medical report from the Ministry of Defence Military Medical Academy regarding his alleged visit to the hospital after the alleged attack by the police. The report states that the injury to the head could have been caused by an object. The claimant stated that he was hit on the head with a baton, which makes his allegations consistent with the finding of the hospital.
[23] The applicant claims there was a breach of natural justice because it was not given the opportunity to make submissions on the respondent’s response to the contradictory medical evidence. Had the applicant been given the opportunity to make submissions, I am of the opinion that they would have been material to the outcome of the hearing.
[24] In Kerimu v. Canada (Minister of Citizenship and Immigration) 2006 FC 264, at paragraph 28, Justice Edmond Blanchard reiterates that notice must be given on issues that are determinative of a claim. In the present matter, the Board concluded that there were no serious credibility issues. However, had the applicant been provided with the opportunity to make a submission as to the respondent’s explanation for the contradictory medical evidence, it may well have influenced the outcome of the hearing vis-à-vis the Board’s credibility finding.
2. Did the Board fail to consider evidence properly put before it?
[25] The respondent alleged in his PIF that he was expelled from the Academy and that this formed a basis for his fear of persecution. However, as was mentioned by the applicant, there was clear evidence before the panel that the respondent was not expelled from the Academy as he alleged.
[26] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1425, Justice John Maxwell Evans stated the following regarding the failure of the Board to address relevant and contradictory evidence:
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[27] In the present matter, the Board was presented with highly relevant and weighty evidence which directly called into question the credibility of the respondent. By ignoring this evidence in its reasons, the Board either failed to consider the credibility of the respondent with any proper analysis or else made credibility findings that were patently unreasonable. The failure of the Board to address inconsistent evidence which is central to respondent’s claim renders the Board’s decision patently unreasonable.
JUDGMENT
- This application for judicial review is granted;
- The Board’s decision is set aside and the matter is remitted to a different panel for re-determination in light of this decision;
- Neither counsel provided question for certification.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6712-05
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. TODOR GEORGIEV STANKOV
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 8, 2006
REASONS FOR JUDGMENT AND JUDGMENT: BLAIS J.
APPEARANCES:
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Ms. Alexis Singer
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Mr. Ronald Poulton
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SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada Fax No. (416)954-8982
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Mamman & Associates Toronto, Ontario Fax No. (416)862-0625
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