Date: 19971125
Docket: IMM-129-97
OTTAWA, ONTARIO, THE 25TH DAY OF NOVEMBER 1997.
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
VADIM VLADIMIR SITNIKOV, INNA SITNIKOVA,
ALEXANDRE SITNIKOV, ANDREI POPOV,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is allowed. The tribunal"s decision of December 19, 1996 is set aside and the matter is referred back to a different panel for reconsideration. As ordered by McGillis J. on August 13, 1997 in her judgment giving effect to the parties" consent in respect of the other three claimants, the members who examine Mr. Popov"s claim will consider the evidence already in the record, including the testimony given at the hearing on October 17, 1996 and any other relevant evidence, inter alia the testimony to be given when the claim is reheard.
MARC NADON
Judge
Certified true translation
Christiane Delon
Date: 19971125
Docket: IMM-129-97
Between:
VADIM VLADIMIR SITNIKOV, INNA SITNIKOVA,
ALEXANDRE SITNIKOV, ANDREI POPOV,
Applicants,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
NADON J.
[1] The applicant Andrei Popov is contesting a decision rendered by the Convention Refugee Determination Division ("the tribunal") in Montréal on December 19, 1996.
[2] When the application for judicial review was filed on January 9, 1997, there were four applicants, including Mr. Popov. On July 29, 1997, the respondent, with the applicants" consent, filed a motion seeking a judgment setting aside the tribunal"s decision as it related to the applicants other than Mr. Popov and asking that the matter be referred back to the tribunal for reconsideration by members other than the ones who rendered the decision of December 19, 1996.
[3] On August 13, 1997, McGillis J. rendered a judgment giving effect to the parties" consent.
[4] When the application for judicial review was heard in Montréal, Mr. Popov was the only remaining applicant.
[5] To dispose of this application, a few words must be said about the relevant facts. The four applicants are citizens of Kazakhstan who allege that they have a well-founded fear of persecution because of their Russian nationality. According to the applicants, one of the incidents that made them decide to leave Kazakhstan was the rape of the applicant Inna Sitnikova on May 6, 1995. The tribunal summarized the evidence adduced about that incident as follows:
| [translation] |
| C on May 6, 1995, while at her home with her brother Andrei Popov, Ms. Sitnikova went out into her yard; four male Kazakhs hit her, knocked her down, took off her clothing and each raped her in turn, calling her a "Russian bitch and damned Russian"; Andrei Popov tried to intervene but was tied to a post and forced to witness what was happening; |
| C after the assailants left, Ms. Sitnikova, helped by her brother, went into her home and lay down; |
| C Ms. Sitnikova said that she had seen her assailants before: they lived in a blue tent that was among the tents put up not far from their home; |
| C her husband came home at 5:00 p.m. and waited until the next day to see the police; to explain why he waited before laying a complaint, he said that he had not known what to do; |
| C he and Andrei Popov went to see the police; the witness described the assailants; "the police promised to do something"; |
| C the claimant continued by saying "but they did nothing"; |
| C when asked to be more specific about this statement, he explained that he gave the police his phone number and called them back twice, the last time around mid-May, and he added that he did not receive any other calls until they left in July; |
| C Ms. Sitnikova testified that she "saw a doctor a week later"; she did not request a report for the police because she was ashamed and did not want the incident to get into the newspapers; |
[6] The day after his sister was assaulted, Mr. Popov allegedly went with his brother-in-law to the police station, where he described the assailants. The tribunal stated that Mr. Popov withdrew his complaint to the police at the request of the owner of the bar where he worked. According to the tribunal, Mr. Popov withdrew his complaint [translation] "[t]o protect . . . the bar"s reputation and avoid red tape".
[7] The complaint to which the tribunal referred was that laid by Mr. Popov and his brother-in-law against the four Kazakhs who had attacked and raped the applicant Inna Sitnikova. However, in paragraph 5 of his memorandum of argument, the respondent now acknowledges that the tribunal made an error:
| [translation] For the purposes of this leave application, the respondent is prepared to admit that the Refugee Division erred in finding that the applicant Andrei Popov withdrew the complaint he laid with the police concerning his sister"s rape. |
[8] The complaint withdrawn by Mr. Popov at his employer"s request was actually a complaint about another incident that occurred on January 11, 1995, when eight Kazakhs who were customers of the bar refused to pay for their drinks and threatened, insulted and assaulted Mr. Popov. At the end of that evening, Mr. Popov laid a complaint with the police. That was the complaint which Mr. Popov"s employer asked him to withdraw and which he agreed to withdraw.
[9] The tribunal"s finding of fact about the withdrawal of the complaint by Mr. Popov had a decisive impact on the applicants. As regards the applicant Vadim Vladimir Sitnikov, Inna Sitnikova"s husband, the tribunal stated at page 5 of its decision that the withdrawal of the complaint [translation ] "seriously undermines the credibility of the claimant", who testified that he "did not get any response from the police". According to the tribunal, that testimony was [translation ] "completely irrelevant" given the withdrawal of the complaint.
[10] As regards the applicant Inna Sitnikova, the tribunal stated that its finding about the withdrawal of the complaint laid by her husband and Mr. Popov also [translation] "applied" to her. As regards the applicant Alexandre Sitnikov, Inna and Vadim Vladimir"s son, the tribunal stated the following at page 6:
| [translation] The same findings apply to the claim of young Alexandre Sitnikov, who wrote on his PIF that his claim is based on that of his parents. |
[11] In view of the tribunal"s error about which complaint was withdrawn, the respondent, as I noted above, agreed that the tribunal"s decision concerning Vadim Vladimir, Inna and Alexandre should be set aside. However, the respondent refused to agree that the decision should be set aside as it related to Mr. Popov.
[12] The question I must now answer is whether the tribunal"s error is such that its decision to deny Andrei Popov"s refugee claim should be set aside. Although the tribunal did not expressly state that the withdrawal of the complaint affected Mr. Popov"s claim, I have concluded that the decision as it relates to this applicant must be set aside.
[13] There can be no doubt that the incident of May 6, 1995 was a decisive one that led the applicants to leave Kazakhstan, and the supposed withdrawal of the complaint about that incident had two consequences. First, as the tribunal stated, it compromised the credibility of the husband, the wife and indirectly the son. Second, it justified the fact that the police did nothing about the assault and rape of the wife.
[14] The incident that led to the complaint that was actually withdrawn occurred on January 11, 1995. As I stated above, eight Kazakhs who were customers of the bar where Mr. Popov worked allegedly threatened, insulted and assaulted him. As for the incident of May 6, 1995, namely the rape of Ms. Sitnikova, Mr. Popov tried to stop the assailants but they tied him to a post and he therefore witnessed what occurred. According to Mr. Popov, both that incident and the one in January 1995 support his complaint of persecution in Kazakhstan.
[15] I cannot understand how it can be argued that the tribunal"s error about the supposed withdrawal of the complaint concerning his sister"s rape could not have affected the assessment of Mr. Popov"s evidence. Although the tribunal did not expressly state that Mr. Popov"s credibility was undermined by the withdrawal of the complaint, I am not certain that the tribunal was not influenced, at least as regards Mr. Popov"s credibility, by that supposed withdrawal. Since the evidence shows that Mr. Popov never withdrew the complaint concerning his sister"s rape, it cannot be concluded, as the tribunal did, that he preferred to keep his job rather than have the police investigate that rape. In my view, the supposed withdrawal of the rape complaint necessarily affected the credibility of all the applicants.
[16] Accordingly, it would, in my view, be unwise in the circumstances to uphold the tribunal"s decision denying Mr. Popov"s refugee claim. It would be better if his claim, like that of the other three applicants, were reheard by a different panel. I am not, of course, expressing any opinion about the truth of the facts recounted by Mr. Popov. The new panel will have to determine whether Mr. Popov"s story and that of the other three applicants are credible.
[17] For these reasons, the application for judicial review is allowed. The tribunal"s decision of December 19, 1996 is set aside and the matter is referred back to a different panel for reconsideration. As ordered by my colleague McGillis J. on August 13, 1997 in her judgment giving effect to the parties" consent in respect of the other three claimants, I direct the members who examine Mr. Popov"s claim to consider the evidence already in the record, including the testimony given at the hearing on October 17, 1996 and any other relevant evidence, inter alia the testimony to be given when the claim is reheard.
MARC NADON
Judge
Ottawa, Ontario
November 25, 1997
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE: IMM-129-97 |
| STYLE OF CAUSE: VADIM VLADIMIR SITNIKOV, INNA SITNIKOVA, ALEXANDRE SITNIKOV, ANDREI POPOV |
-and-
| MINISTER OF CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: SEPTEMBER 5, 1997 |
| REASONS FOR JUDGMENT BY: THE HONOURABLE MR. JUSTICE NADON |
| DATED: NOVEMBER 25, 1997 |
| APPEARANCES: MICHEL LEBRUN |
(514) 392-9189 FOR THE APPLICANTS
SÉBASTIEN DASYLVA
(514) 283-7575 FOR THE RESPONDENT
SOLICITORS OF RECORD:
| MICHEL LEBRUN, ATTORNEY |
| ÉDIFICE DES COMMUNICATIONS |
| 1425 RENÉ LÉVESQUE OUEST, SUITE 306 |
| MONTRÉAL, QUEBEC |
| H3G 1T7 |
| FOR THE APPLICANTS |
| GEORGE THOMSON |
| DEPUTY ATTORNEY GENERAL OF CANADA |
| FOR THE RESPONDENT |