Date: 19990909
Docket: IMM-6135-98
Ottawa, Ontario, September 9, 1999.
Present: The Honourable Mr. Justice Denault
Between:
ALEXANDER STRIZHEVSKY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed, and accordingly the Convention Refugee Determination Division decision dated October 20, 1998, is set aside and the matter referred back to a different panel for rehearing and redetermination.
PIERRE DENAULT
Judge
Certified true translation
Peter Douglas
Date: 19990909
Docket: IMM-6135-98
Between:
ALEXANDER STRIZHEVSKY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Refugee Division), which determined that the applicant, a citizen of Israel, is not a Convention refugee.
[2] Born in 1976, the applicant is an Israeli citizen of Russian origin and Jewish nationality. On June 5, 1992, the applicant and his family came to Canada and made a refugee claim, which was refused. After living in Canada for three and a half years and receiving a number of notices to report for military service, the applicant left Canada with the rest of his family to stay in Greece.
[3] In late November 1996, the applicant left Greece and came via the Czech Republic to Canada to make a second refugee claim.
[4] In support of his claim, the applicant alleged that he had a well-founded fear of persecution for reasons of political opinion and nationality. He essentially argued that it would go against his convictions to serve in the Israeli army, which would commit war crimes and crimes against humanity. He alleged that a return to Israel would mean a desertion charge and a prison sentence since he was of draft age, was out of the country and had failed to report to the draft bureau despite receiving notices to report for military service.
[5] [TRANSLATION] "After reviewing all the evidence, both documentary and oral",1 the Refugee Division found that the applicant"s fear of the fate awaiting him on arrival in Israel was unfounded [TRANSLATION] "because he could ask for an exemption from an Israeli consulate in Canada".2
[6] The applicant argues that the Refugee Division erred by preferring the documentary evidence without stating why and without having regard to his explanations.3 He also maintains that the panel erred in its assessment of the facts by failing to have regard to the totality of the evidence before it.4
[7] The respondent submits that the applicant"s arguments are an attempt to substitute his opinion for the panel"s assessment of the evidence at the hearing. He adds that the Refugee Division stated in its analysis that it had regard to the applicant"s explanations when confronted with the documentary evidence on compulsory military service, alternatives, desertion and options for people affected by those issues.
[8] I am of the view that the Court must intervene in the case at bar. I will explain why.
[9] First, I repeat that the main reason the Refugee Division found the applicant"s fear unfounded was that he had not applied for an exemption from military service at an Israeli consulate in Canada.
[10] In his testimony, the applicant explained that one of his friends, on return to Israel, was jailed for three months as a deserter and required to do his military service. He also explained why he had not applied for an exemption: by applying to Israeli authorities in Montréal for an extension of time or exemption from military service, he knew they would note in his passport that he was a refugee claimant in Canada, so that on return to Israel, he would be immediately targeted not only as a deserter but also as a traitor who had claimed refugee status abroad. Furthermore, after the hearing, he filed an example of an entry5 by the Israeli Consulate General in Montréal in the passports of people who apply, for example, to renew their passport and do not have legal status in Canada. The applicant did not want to and could not take such a risk.
| [11] However, despite finding the applicant credible, the Refugee Division made no comment on his explanations, which go to the very heart of the refusal of the refugee claim. I am of the view that in the case at bar, the remarks of Mr. Justice Evans in Cepeda-Gutierrez6 apply. In that case, he said: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. |
| . . . |
| 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. |
| . . . |
| Finally, I must consider whether the Refugee Division made this erroneous finding of fact "without regard for the material before it." In my view, the evidence was so important to the applicant"s case that it can be inferred from the Refugee Division"s failure to mention it in its reasons that the finding of fact was made without regard to it. This inference is made easier to draw because the Board"s reasons dealt with other items of evidence indicating that a return would not be unduly harsh. The inclusion of the "boilerplate" assertion that the Board considered all the evidence before it is not sufficient to prevent this inference from being drawn, given the importance of the evidence to the applicant"s claim. |
(Emphasis added.)
[12] In the case at bar, because the Refugee Division disregarded significant evidence that attempted to explain why the applicant had not applied in Canada for an exemption from military service in Israel"the very reason his refugee claim was refused"I am of the view that it made an erroneous finding of fact without regard for the material before it within the meaning of subsection 18.1(4) of the Federal Court Act .
[13] For these reasons, the application for judicial review is allowed. In the case at bar, there is no serious question of general importance to certify under subsection 83(1) of the Immigration Act.
PIERRE DENAULT
Judge
Ottawa, Ontario
September 9, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6135-98
STYLE OF CAUSE: ALEXANDER STRIZHEVSKY
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPTEMBER 2, 1999
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE DENAULT
DATED SEPTEMBER 9, 1999
APPEARANCES:
JACQUES BEAUCHEMIN FOR THE APPLICANT
CHRISTINE BERNARD FOR THE RESPONDENT
SOLICITORS OF RECORD:
JACQUES BEAUCHEMIN FOR THE APPLICANT
CHRISTINE BERNARD
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 p. 1 of the panel"s decision, reproduced at p. 6 of the applicant"s record.
2 p. 3 of the panel"s decision, reproduced at p. 8 of the applicant"s record.
3 Okyere-Akosah v. M.E.I. (1992), 157 N.R. 387 (F.C.A.); Olschewsky v. M.E.I., (October 20, 1993) A-1424-92 (F.C.T.D.).
4 Owusu-Ansah v. M.E.I. (1989), 98 N.R. 312, 81 Imm.L.R. (2d) 106; Toro v. M.E.I., [1981] 1 F.C. 652.
5 [TRANSLATION] "Note: The above has made a refugee claim in Canada, 03/09/96" (pp. 263-64 of the panel"s record).