Komarnitski v. Canada (Minister of Citizenship and Immigration), docket IMM-502-96

     IMM-502-96

BETWEEN:

     VLADIMIR KOMARNITSKI

     NATALIA KOMARNITSKI

     ROMAN KOMARNITSKI

     Applicants

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

DENAULT J.:

     The Applicants, Vladimir and Natalia Komarnitski¹ and their son Roman, seek judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division, which decision determined that the Applicants were not Convention Refugees pursuant to subsection 2(1) of the Immigration Act. The Applicants contend that the Board erred in law when it evaluated their credibility.

     Under the Law of Return, the Applicants left the U.S.S.R. for Israel in August 1992. While living in Israel between September 1992 and March 1994, the Komarnitski family, who obtained Israeli citizenship, moved regularly owing to the violence it was experiencing. The violence, which prompted the Komarnitskis' claim for refugee status shortly after their arrival in Canada on March 21, 1994, arose out of the family's nationality and religion, for despite the fact that Vladimir Komarnitski is of Jewish origin, the family practices Catholicism.

     At the Board hearings, on October 24 and 31, 1995, the Applicants offered testimony relative to the incidents and events described in their and their son's PIFs. The acts upon which they found their claim for refugee status include the following: repeated life-threatening physical attacks of Vladimir, by his co-workers, at his workplace between October 1992 and December 1993; Natalia's inability to find and keep employment because of her nationality and religion, as well as repeated verbal and physical aggression; repeated physical and verbal abuse of Roman by schoolmates and neighbourhood children from September 1992 onward, which acts of violence forced the Applicants to move their son to five different schools within a one and a half year period; although Roman required hospitalization, on one occasion, as a result of a beating he received at the hands of six neighbourhood children, the police decided to suspend their investigation; the police again refused to investigate when, on another occasion, Roman suffered a concussion after being struck by a car at a crosswalk. The Applicants submit that they were unable to obtain police protection and that their attempts to obtain assistance from organizations such as the Zionist Forum and Histadrut were to no avail.

     In arriving at its negative decision, the Board found as fact that the Applicants' testimony had been exaggerated such that they could not be considered credible. The Board's adverse finding relative to the Applicants' credibility was predicated, at least in part, on its insistence that the Applicants explain discrepancies between their viva voce evidence and the general documentary evidence. In that respect, the Board reasoned as follows:

The Board committed a reviewable error when it based its credibility finding on external contradictions or inconsistencies, contrary to the principle articulated by Justice MacGuigan in Luis Fernando Soto Y Giron v. M.E.I.³ Having considered all of the evidence before me, I am of the opinion that the Board made a finding of fact in a capricious manner, which is to say that it committed an error of law when it relied on external inconsistencies in arriving at an adverse finding relative to the Applicants' credibility.

     It follows that the Board's ultimate decision, namely that the Applicants were not persecuted and are not, therefore, Convention Refugees, must necessarily be viewed as having been tainted by an error of law. Consequently, the Board's decision is set aside.

     ORDER

     This Application for Judicial Review is allowed. The Board's decision is quashed and the matter is referred back to a differently constituted panel of the Board for rehearing.

OTTAWA, June 6, 1997

J.F.C.C.

¹      This Court notes that the Applicants have been variously referred to as KOMERNICKI and KOMARNITSKI in the immigration proceedings which pre-dated the present application for judicial review. This Court further notes that the correct spelling of the Applicants' surname is KOMARNITSKI.

²      Decision of the Immigration and Refugee Board (Refugee Division), dated November 24, 1995, at p. 5.

³      May 28, 1992, Doc. A-387-89 (F.C.A.), at pp. 1-2. Referring to the actions of the CRDD in Giron , Justice MacGuigan states the following:
             The Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies, and evasions, which is the heartland of the discretion of triers of fact, but rather on the implausibility of the claimant's account in light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position than others to draw.