Date: 20060816
Docket: IMM-6712-05
Citation: 2006
FC 991
Quebec, Quebec, August 16, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
TODOR GEORGIEV STANKOV
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.
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