IMM No. 158-02
Neutral citation: 2003 FCT 57
IN THE FEDERAL COURT OF CANADA
BETWEEN:
ALECKSEY OSIPENKOV
Applicant
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
________________________________________________________
HEARD BEFORE: The Honourable Madam Justice
Layden-Stevenson
PLACE HEARD: Halifax, Nova Scotia
DATE HEARD: Wednesday, January 8, 2003
APPEARANCES: Mr. Eugene Tan,
Solicitor for the Applicant
Ms. Lori Rasmussen,
Solicitor for the Respondent
Ms. Bea Scott
Court Registrar
Mr. Paul Charbonneau
Senior Usher
_______________________________________________________
Recorded By:
Drake Recording Services Limited
1592 Oxford Street
Halifax, N.S. B3H 3Z4
Per: Stephanie Atkinson
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Wednesday, January 8, 2003 - 4:30 p.m.
LAYDEN-STEVENSON J. (ORALLY):
The Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD) now the Refugee Protection Division (the RPD) in its decision dated December 19th, 2001, determined that the applicant is not a Convention refugee. The applicant seeks judicial review of that decision.
The applicant was born in Minsk, Belarus, an area previously part of the Soviet Union. He is the son of a Russian father and a Jewish mother. He claims a well founded fear of persecution on the basis of his Jewish ethnicity. In the narrative provided in his personal information form (the PIF) the applicant describes the details of his alleged persecution, beginning when he was in day care and continuing throughout his years in school, his years in the army, and his years at sea. The CRDD, at the outset of its decision, identified the issue in the claim as credibility. Having so defined the issue, it made no specific credibility findings. The respondent Minister submits that the Board need not have made specific findings with respect to credibility because it found that there was no basis for the claim either with respect to a subjective fear or an objective fear of persecution.
The basis upon which the Board determined that there was no subjective basis for the fear of persecution was the applicant's delay in making a refugee claim. This was the only reason specified. The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which may be taken into account. See: Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.).
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The basis upon which the Board determined that there was no objective basis for the claim was that first, it was not satisfied of the applicant's Jewish ancestry. Second, nothing of a persecutory nature had happened to him. Regarding the first finding, the CRDD rejected the applicant's birth certificate as evidence of Jewish ancestry. The Board refers to the fact that the birth certificate was only a photocopy, when in fact it was a certified original copy. An apparently valid birth certificate issued by the state cannot be rejected without evidence, external to the document, upon which the CRDD could determine that the document was false. See: Ramalingam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 10 (T.D.); Nika v. Canada (Minister of Citizenship and Immigration) 2001 FCT 656, F.C.J. No. 977, and Ratheeskumar v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1232, F.C.J. 1697.
In relation to the second finding, the Board did not accept that anything of a persecutory nature had happened to the applicant. Implicit, but not stated in this finding, is a negative determination regarding credibility. The Federal Court of Appeal has determined that the CRDD is required to provide in clear and unmistakable terms the reason why it doubts the truth of the applicant's story. See: Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm.L.R. (2d) 199. The CRDD, in this instance, although not believing the applicant, failed to state at all why it did not believe him.
It is correct that the CRDD is a highly specialized tribunal and that determinations regarding credibility and plausibility lie at the heart of its jurisdiction. Such determinations are generally insulated from judicial review. However, the Board must explicitly state its reasons for arriving at those determinations. That was not done here and on that basis, I find the decision to be patently unreasonable. Having so found, I need not deal with the other allegations of error.
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The application for judicial review is allowed and the matter is remitted back to a differently constituted panel of the RPD for redetermination. Counsel posed no questions for certification. This case raises no serious issue of general importance.
SENIOR USHER
Order.
THE COURT
Thank you.
THE REGISTRAR
This special sitting of the Federal Court of Canada is now concluded.
- Upon concluding at 4:36 p.m.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-158-02
STYLE OF CAUSE: ALECKSEY OSIPENKOV
v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: HALIFAX
DATE OF HEARING: JANUARY 8, 2003
REASONS FOR ORDER BY : LAYDEN-STEVENSON J.
DATED: JANUARY 22, 2003
(delivered orally from the bench on January 8, 2003)
APPEARANCES:
EUGENE TAN FOR APPLICANT
LORI RASMUSSEN FOR RESPONDENT
SOLICITORS OF RECORD:
COOPER & McDONALD FOR APPLICANT
HALIFAX
MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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