Date: 19991101
Docket: IMM-6693-98
Between:
SERGEY SEDOV,
LYUDMILA SEDOVA,
Plaintiff,
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
LEMIEUX J.
[1] The plaintiffs, Sergey Sedov and his wife Lyudmila Sedova, citizens of Russia, are asking the Court to quash the decision of the Immigration and Refugee Board ("the panel"), dated October 23, 1998. The plaintiffs alleged that they had a well-founded fear of persecution in their country for their political opinions and the Jewish nationality of the female plaintiff, Lyudmila Sedova. The panel refused to regard them as Convention refugees and found that their claims did not have a credible basis.
PANEL"S DECISION
[2] The panel"s decision is divided into two parts: the facts alleged and the analysis.
| (a) Facts alleged |
[3] In May 1990, the claimants and their son moved to Sochi in Russia from Uzbekhistan as the result of attacks against them. In August 1994 a dispute broke out between the male claimant and a police commander. The male claimant was arrested by two police officers during the building of his house and taken to the police station, to a commander who told him he had already selected the land on which he was in the process of building and asked him to relinquish his possession.
[4] As a result of these events the male claimant filed a complaint at the town hall. However, it was in fact the commander who called him back to repeat his request that he withdraw. In June 1994 the commander and his men demolished the claimant"s building, which had already been started.
[5] In 1995 the female claimant obtained a copy of her birth certificate to replace the original that had been lost at the time of their move to Russia. When this was done the female claimant"s Jewish nationality was disclosed. After that disclosure their problems became more complex.
[6] They alleged that because of the disputed land and the female claimant"s nationality they were the victims of persecution by the Cossacks: on March 7, 1995 the female claimant was beaten and on June 12, 1995 the male claimant was hospitalized. As the police investigator was anti-Semitic, the investigation led nowhere and the male claimant"s recourse to the Ministry of Internal Affairs was rejected.
[7] In March 1996 the claimants moved to Krasnodarski. Three months later they related that they were again persecuted on account of the female claimant"s Jewish nationality. Complaints to the police failed, even aggravating their situation because they were not registered: they therefore had to leave the city.
[8] After staying for a month with a cousin in another town, they moved to Hosta. They alleged that the Cossacks asked them to leave Russia. The claimants then alleged that on September 20, 1996 their son disappeared and they received a telephone call from the Cossacks confirming their involvement in this kidnapping: the police refused to intervene because of the female claimant"s nationality.
[9] On August 4, 1997, instead of looking for the child, the police beat the male claimant for not leaving Russia. The claimants filed another complaint with the Ministry of Internal
Affairs, which had not been informed of their son"s disappearance.
[10] On November 13, 1997 the male claimant"s shop was burnt down and the police did not entertain his complaint; someone threatened to terminate the female claimant"s pregnancy; they hid in Moscow and stayed there until they left Russia on March 31, 1998. They arrived in Canada equipped with visas on April 1, 1998 and claimed refugee status the same day.
| (b) Analysis |
[11] According to the panel, the basic question to be decided is as to the female claimant"s nationality, since the claimants maintained that the female claimant"s Jewish nationality was the cause of the acts of persecution related in their testimony.
[12] The panel considered the copy of a birth certificate obtained by the female claimant in January 1995. It seemed unlikely to the panel that the female claimant could have moved to Russia in 1990 and lived there without a birth certificate.
[13] The panel found that the female claimant was in possession of an internal passport which indicated that the latter was of Russian nationality.
[14] The panel subsequently, referring to the documentary evidence filed, noted:
| [TRANSLATION] |
| The Soviet regime and its Russian successors classified citizens by nationality, which was specified in an internal passport which citizens had to produce in all their dealings with educational, economic or governmental bodies. |
| Individuals leaving Russia with the intention of trying to remain in the U.S. may expect to take a copy of documents (birth and marriage certificates) and these documents are often presented by the claimants as proof of their nationality. In the circumstances in Russia, an individual who desires a false document can probably resort to the corruption of an official. Special attention should be paid to all documents described as duplicates or replacement documents. |
[15] The panel then confronted the female claimant with this documentary evidence. The claimant maintained that she had lost her original birth certificate, that her grandfather and mother were killed by fascists and that her child and she had suffered from them.
[16] At page 4 of its decision the panel concluded as follows:
| [TRANSLATION] |
| In view of this documentation, which comes from a trustworthy source, and the female claimant"s internal passport indicating she is of Russian nationality, we do not believe her birth certificate was lost and that she waited five years to replace it. In particular, this panel has specialized knowledge regarding a host of individuals who claim to come from mixed backgrounds so as to allege a particular nationality. The panel finds the same aforementioned phenomenon in the documentary source. In this regard, we concur in the view of Richard J. in Tchaynikova and Rubanovska . . . |
[17] The panel ruled as follows:
| [TRANSLATION] |
| We do not believe that the female claimant is of Jewish nationality: accordingly, we reject the persecutions which she and her husband allegedly suffered and the complaints made to the police. It appears to the panel that the story is an entire fabrication carefully prepared, especially as the claimants did not discharge their burden of proof as to the existence of their alleged son Anton for whom they submitted a duplicate birth certificate. |
[18] The panel proceeded with its analysis regarding the existence of their son Anton. The claimants had only one duplicate birth certificate: they testified that the original was still in Russia and that the Russian customs prohibited his brother from sending the originals. The panel did not accept their explanations and referred to documentary evidence showing that there were no restrictions on the sending of birth certificates out of Russia. For this and other reasons, the panel did not believe that they had an original of this birth certificate.
[19] The panel also raised other problems. In her point of entry form the female claimant did not mention her son Anton. The male claimant indicated that he had two sons: Sergey (by a first marriage) and Anton. The panel was amazed to find that the two boys had almost the same given names since Anton"s complete name, as it appeared on the birth certificate, was Anton Sergeievitch.
[20] Accordingly, the panel questioned the female claimant as to why she did not even have a photograph of her son who had disappeared. The claimant then indicated that she had given the latest photograph she had to the Canadian Child Find.
[21] The panel concluded as follows at page 5 of its decision:
| [TRANSLATION] |
| The claimant did not discharge her burden of proof in establishing the existence of this son. We do not attach any evidentiary value to this certificate copy. We do not believe that she has a son of this name. |
[22] The panel then added:
| [TRANSLATION] |
| Additionally, to prove the disappearance of their alleged son to the panel the claimants submitted No. P-10, a photograph of a missing child answering the name of Anton Sergueyevitch Sedov, whom they alleged was theirs. The reason for the disappearance was not indicated and we do not believe it is their son. |
| Their counsel argued that the two Exhibits P-10, the newspaper, and Exhibit P-2, the birth certificate copy, support each other. However, for the reasons stated above the panel attaches no evidentiary value to the birth certificate copy. |
| In light of the foregoing, we conclude that the evidence submitted to the panel is clearly inadequate to establish that in the event of a return to their country the claimants would have a "reasonable possibility" of persecution, according to the language in Adjei . |
ANALYSIS
(a) Female claimant"s nationality
[23] The panel found that the female claimant is not of Jewish nationality and so dismissed the persecutions alleged by the claimants. The panel based this conclusion on the following points:
| (a) the female claimant"s internal passport indicating she is of Russian nationality; |
| (b) the female claimant entered as evidence of her Jewish nationality a duplicate of her birth certificate; the panel dismissed this evidence for three reasons; (i) the documentary evidence; (ii) the panel"s specialized knowledge; and (iii) Tchaynikova v. Minister of Citizenship and Immigration (IMM-4497-96, May 8, 1997, Richard J., as he then was); |
| (c) the panel found it unlikely that the female claimant could have moved to Russia in 1990 and lived there without her birth certificate; |
| (d) the panel did not believe the female claimant"s birth certificate was lost and that she waited five years to replace it. |
[24] In this Court the plaintiffs argued:
| (a) that the conclusion of improbability (that she could have lived in Russia without a birth certificate) lacks any real basis: it is a capricious conclusion not based on the evidence because in 1990 Russia did not exist (it was the former Soviet Union), and further, the female claimant"s internal passport indicated Russian nationality: in other words, the need for a birth certificate did not exist; |
| (b) the panel"s finding based on its specialized knowledge and general documentary evidence was an error of law because, in the claimant"s submission, the panel could not dismiss the female claimant"s duplicate birth certificate indicating she is of Jewish nationality without reasons or simply on the basis that false duplicates could easily be obtained; |
| (c) the panel"s conclusion that the claimant"s testimony is an entire fabrication is not in any way based on the evidence as a whole or supported by reasons. |
[25] In my opinion, there is no basis for intervention on this first point. The case at bar and the points at issue are remarkably similar to the case recently decided by Tremblay-Lamer J. in Tcheremnykh et al. v. the Minister of Citizenship and Immigration, IMM-5437-97, September 15, 1998. In Tcheremnykh the plaintiff entered in evidence a duplicate of his birth certificate indicating his mother"s Jewish nationality: the original of the birth certificate was lost. The Refugee Division did not find his explanation plausible. The Refugee Division further attached no evidentiary value to this (duplicate) birth certificate and in so doing relied on its specialized knowledge. Tremblay-Lamer J. dismissed the application for judicial review on the following grounds:
[TRANSLATION]
| [9] In my view, the Refugee Division clearly explained the reasons why it attached no evidentiary value to the duplicate birth certificate filed by the plaintiff. It was the Division"s responsibility to weigh the explanations provided by the plaintiff and draw its own conclusions about the value of the document. |
| [10] As Joyal J. recently noted in Culinescu, credibility is a question of fact entirely within the jurisdiction of the Refeguee Division and the latter is justified in questioning the authenticity of a document when it has sufficient reason to do so. That is the case here. |
| [11] Further, as counsel for the defendent indicated, its reasons were based not only on its specialized knowledge but also on several improbabilities that emerged from the evidence submitted by the defendant. |
[26] I adopt Tremblay-Lamer J."s analysis and apply it to the case at bar.
[27] The panel mentioned this Court"s judgment in Tchaynikova . Richard J., as he then was, dismissing an application for judicial review, said the following:
| The Board concluded that the female applicant did not discharge her onus of proving that she is Jewish. The Board member stated in her reasons that she assigned no weight to the birth certificates of the female claimant and her mother, which were entered as an exhibit, noting that they are duplicates, not originals, and were quite recently obtained. The Board member added: |
| . . . I am aware, having heard many claims from the former Soviet Union, that false documents indicating Jewish ethnicity are commonly available . . . |
[28] Further, he added:
| The Board"s finding of credibility was based on all the evidence. The Board did not find credible or plausible the female applicant"s evidence concerning: |
| (a) the explanation for the loss of the originals or the replacement of them; |
| (b) the plausibility that the female applicant would have left her birth certificate at her mother"s house after she had moved out, instead of keeping it herself; |
| (c) the explanation why her mother waited two years to replace her birth certificate; and |
| (d) the evidence about the documents being burned in the sink in her mother"s apartment seem contrived. |
[29] And he concluded as follows:
| In any event, in the present case, the adverse finding of credibility was based on all the evidence and not solely on the experience of the Board member. |
[30] Richard J."s comments in Tchaynikova apply here. In the case at bar the panel"s decision was based on the evidence as a whole: general documentary evidence, documentary evidence relating directly to the female claimant and the claimants" testimony. In my view, this evidence as a whole, which this panel was responsible for assessing, allowed it to arrive at the conclusion that the female claimant had not discharged her burden of proof regarding her nationality.
| (b) Existence of son |
[31] The panel did not believe that the claimants had a son: they filed only a duplicate of his birth certificate at the hearing. Further, the panel regarded the photograph of the child entered in evidence as inadequate. Other points were raised by the panel.
[32] The panel"s hearing in the case at bar took place on October 23, 1998. On November 4, 1998 counsel for the claimants sent the panel the child"s original certificate. Counsel explained that this document was not available at the time of the hearing and that the applicants had just received it by mail. In the same letter, counsel for the claimants sent the panel photographs of the child Anton.
[33] The panel"s decision was dated November 25, 1998. The panel"s reasons made no mention of this documentation filed after the hearing. The plaintiffs argued that the panel had a duty to consider this evidence and did not do so.
[34] I will not consider this second point at length. Quite apart from all the problems raised by the panel in this regard, and assuming the legal validity of the claimants" arguments regarding the panel"s duty to take this evidence filed after the hearing into account, in my opinion the Court"s intervention is clearly not warranted.
[35] Counsel for the defendant argued that the panel"s analysis, as to whether the plaintiffs had a son, was not necessary: the essential point before the panel was the female claimant"s nationality, and on this point the panel decided that she was not of Jewish nationality. Counsel for the defendant cited the Federal Court of Appeal"s judgment in Surinder Kumar v. Minister of Employment and Immigration of Canada (A-1294-91, March 4, 1993), in which Decary J.A. wrote:
| The tribunal went on to undertake obiter an analysis of the situation of the Hindus in India, and in the Punjab in particular, concluding that the applicant had the possibility of internal refuge. This analysis was not necessary. Even if it was mistaken or if it led the tribunal to exceed its jurisdiction " as to which the Court makes no ruling " it could not vitiate an otherwise valid decision. |
[36] The rule in Kumar applies in the case at bar. The panel"s finding was that the evidence submitted was clearly inadequate to establish that if the claimants returned to their country
there would be a "reasonable possibility of persecution".
[37] In my view, there is no question that the panel based this decision on the fact that the female claimant"s Jewish nationality was the condition sina qua non for the persecutions suffered by the claimants, including the alleged kidnapping of the child by the Cossacks. The panel did not believe the female claimant was of Jewish nationality and so dismissed the claim of persecution.
[38] With this in mind, the defendant was right to argue that the panel"s analysis regarding the existence of the son was not necessary in the circumstances. The son"s existence or non-existence did not in any way alter the basic conclusion of a probable absence of persecution in Russia on account of the female plaintiff"s nationality.
DISPOSITION
[39] For these reasons, the application for judicial review is dismissed. No certified question was submitted.
| François Lemieux Judge |
Ottawa, Ontario
November 1, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-6693-98 |
| STYLE OF CAUSE: SERGEY SEDOV et al. |
v.
MCI
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: SEPTEMBER 29, 1999 |
| REASONS FOR ORDER AND ORDER BY: LEMIEUX J. |
| DATED: NOVEMBER 1, 1999 |
APPEARANCES:
| RENÉ LABROSSE FOR THE APPLICANT |
| CAROLINE DOYON FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| MICHEL LE BRUN FOR THE APPLICANT |
| ODETTE BOUCHARD FOR THE RESPONDENT |
Morris Rosenberg
Deputy Attorney General of Canada
Date: 19991101
Docket: IMM-6693-98
Ottawa, Ontario, November 1, 1999
| Before: LEMIEUX J. |
Between:
SERGEY SEDOV,
LYUDMILA SEDOVA,
Plaintiff,
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
ORDER
For the reasons stated, the application for judicial review is dismissed. No certified question was submitted.
| François Lemieux Judge |
Certified true translation
Bernard Olivier, LL. B.