Date: 20050427
Docket: IMM-1574-04
Citation: 2005 FC 563
OTTAWA, Ontario, April 27th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ROMAN BASHTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated January 26, 2004, in which the applicant was found not to be a Convention refugee or a person in need of protection.
FACTS
[2] The applicant is a 29-year citizen of the Ukraine and a medical doctor. He alleges a well-founded fear of persecution on the basis of his involvement with the "Y. Timoshenko Block" (YTB), a national political party. The applicant states that he joined the predecessor of the YTB in 1996, while attending University. In 2000, the applicant and other members of the YTB appeared on a local television station to denounce the University for accepting bribes from prospective students. The applicant alleges that shortly after this incident, he was arrested by the police, questioned about his political involvement and beaten. Over the next two years, the applicant was badly beaten on a number of occasions by neighbours, co-workers and members of the police. He reported the incidents to the police, however, they refused to assist him.
[3] The applicant also claims that he and other party members were arrested by the police at a meeting in January 2002. When the applicant refused to promise not to speak out against the current regime, he was beaten to the point of unconsciousness. He reported the incident to the local prosecutor's office who refused to consider the complaint.
[4] Following a further attack in July 2002, the applicant obtained a Canadian visitor's visa to attend a medical conference in Montréal. He arrived in Canada on September 20, 2002 and made a claim for refugee protection in November 2002.
[5] The applicant produced hospital records which detail extensive serious injuries consistent with being badly beaten on three occasions.
THE DECISION
[6] The Board rejected the applicant's claim for two reasons. First, it found that there was insufficient objective evidence to substantiate his allegations of persecution. Although the documentary evidence made reference to the YTB, and to its leader, Yulia Timoshenko, none of the documents indicated that members of the YTB were subject to persecution by the state. The Board also considered a document submitted by the applicant which recounted how the police had broken-up a peaceful political demonstration. However, it did not find the incident supportive of the applicant's claim of persecution because the police had only intervened to enforce a court order that was being disobeyed.
[7] Apart from objective evidence, the Board also questioned the applicant's credibility. The applicant testified that he had not left with his internal passport because it is illegal to remove it from the Ukraine. However, according to the documentary evidence, a person may take their internal passport with them so long as they are not planning to leave the country permanently. The Board also found that the applicant had omitted several important details from his personal information form including his participation in the 2002 elections.
[8] The Board concluded that when the credibility concerns were taken together with the weak documentary evidence, the applicant's allegations could not be substantiated.
ISSUE
[9] Did the Board err in concluding that there was insufficient credible evidence to substantiate the applicant's claim of persecution?
ANALYSIS
[10] The definition of Convention refugee comprises both a subjective and an objective element. Therefore, a person is not entitled to refugee status because he subjectively fears persecution unless he also demonstrates that fear to be objectively well-founded. Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (F.C.A.). In determining whether a fear is objectively well-founded, the Board will most often examine documentary evidence detailing conditions in the claimant's country of origin.
[11] In the present case, the Board rightly noted that the objective documentary evidence makes no mention of persecution against members of the YTB party, particularly low-ranking members such as the applicant. I see no error in the Board drawing an inference from the lack of evidence on this point.
[12] However, the Board also had before it medical records which indicated that the applicant had been admitted to the hospital on three separate occasions with serious injuries including concussions, fractured ribs and multiple abrasions. The records indicate that the applicant was treated in the hospital for 15 days in March 2000, 14 days in July 2001, and 9 days in January 2002. These dates correspond with attacks recounted in the applicant's evidence. The Board does not discuss or even refer to the medical records in its decision. In my view, this is a reviewable error that warrants the Court's intervention. While the Board is not required to mention every piece of evidence, it cannot ignore highly relevant and corroborative evidence such as the medical records. If the Board considered the records to be untrustworthy or of little probative value, then it should have so stated in its decision. See Bains v. Canada (Minister of Citizenship and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). For this reason, the application for judicial review will be allowed.
[13] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of the Board dated January 26, 2004 is set aside and the matter is remitted to a different panel of the Board for redetermination.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1574-04
STYLE OF CAUSE: ROMAN BASHTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 20, 2005
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: WEDNESDAY, APRIL 27, 2005
APPEARANCES BY:
Ms. Karen Kwan Anderson
For the Applicant
Mr. Greg George
For the Respondent
SOLICITORS OF RECORD: PACE LAW FIRM
Barristers & Solicitors
Toronto, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050427
Docket: IMM-1574-04
BETWEEN:
ROMAN BASHTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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