Date: 20030220
Docket: IMM-1253-02
Neutral citation: 2003 FCT 202
Toronto, Ontario, Thursday the 20th day of February, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
DMITRI BAKCHEEV
and
IRINA MORDAKINA
Applicants
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicants in the present case are husband and wife who are citizens of Russia and who claim a well founded fear of prosecution based on their religion, namely as members of the True Orthodox Church.
[2] In support of their claim, the Applicants tendered their own evidence of persecution by the police and, in addition, recounted their experience of being beaten by people who believed them to be traitors to the Russian nation. The female Applicant testified to having suffered a medically proved spontaneous post-traumatic miscarriage as a result of one of the beatings.
[3] In reaching a determination, the CRDD was very interested in independent evidence substantiating the Applicants' claim of persecution in Russia as members of the True Orthodox Church. In this respect, while the documentary evidence established that the True Orthodox Church was registered by the Russian authorities in February 1996, the CRDD found as follows:
The panel was unable to find any persuasive documentary evidence indicating that individuals of the True Orthodox Church were physically harmed or were denied the right to practice their religion. It is reasonable to expect that such action would be reported in the international documents that the panel relied upon. The panel therefore specifically finds that believers of the True Orthodox Church do not face a serious possibility of being persecuted due to their religious beliefs.
(Decison, pp. 8-9)
[4] As independent evidence, the Applicants called a critical witness to the persecution that members of their faith have suffered, being Father Oleg Uryupin, a True Orthodox Priest living in Toronto. Given the paucity of documentary evidence substantiating the evidence of persecution of members of the Church, I find it is reasonable to expect the CRDD to take the greatest of care in evaluating Father Uryupin's evidence.
[5] With respect to Father Uryupin's evidence, the CRDD said this:
The panel gave less weight to the testimony of the witness Father Oleg Uryupin with respect to the situation of the True Orthodox in Russian today. Father Oleg is from Kiev, the capital of Ukraine. When asked how he was aware of the information regarding the True Orthodox Church in Russia, the witness stated that there was documentary evidence, encyclopaedic, and also the Internet. When asked for the website to substantiate this information, the witness was unable to provide a specific web-site. Father Oleg stated that his wife, who was on a private trip to Russia constantly communicated with him regarding the situation in Russia. The panel found that the source of most of Father Oleg's information was general and self-serving. In contrast the panel gives more weight to impartial sources like the BHO as it has no interest in the outcome of this claim. (Decision, p. 8)
[6] In my opinion, the CRDD's evaluation of Father Uryupin's evidence is remarkably unfair. The labelling of his evidence as "self-serving" is totally unexplained. I find that a reasonable conclusion to draw from the use of these words is that Father Uryupin was suspected of giving evidence embellished to support the Applicants' claim. I find that, if such a suspicion exists, it should be specifically advanced during the course of the hearing in order for the witness to give an explanation. In any event, to make the statement without providing reasons, in my view, is not only disrespectful of the witness, but is contrary to the requirement that sworn evidence be believed unless specific reasons are expressed for finding to the contrary.
[7] A second reason for finding that the CRDD's decision with respect to Father Uryupin's evidence is unfair arises from the comment that, when asked to do so, he was unable to provide a specific web-site reference for information he found on the internet respecting persecution. From reading the transcript of the exchange which took place with respect to this issue, a reasonable conclusion which can be drawn is that the CRDD was again suspicious that Father Uryupin was exaggerating and embellishing his evidence in order to support the Applicants. In my opinion, to be fair to the witness, and also the Applicants, the CRDD should have given Father Uryupin an opportunity to produce the web-site references it sought before, in effect, discounting him for not doing so within the course of the hearing.
[8] I accept the argument advanced by Counsel for the Applicants that Father Uryupin's evidence is critical to the Applicants case since it bridges a gap between the documentary evidence before the CRDD, which does not speak to the issue of persecution of members of the True Orthodox Church in Russia today, and the evidence given by the Applicants of the persecution they suffered. On this basis, I find that the unfair dismissal of Father Uryupin's evidence renders the CRDD's decision as patently unreasonable.
ORDER
Accordingly, CRDD's decision is set aside and the matter is referred back to a different panel for re-determination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1253-02
STYLE OF CAUSE: DMITRI BAKCHEEV and
IRINA MORDAKINA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, FEBRUARY 19, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL, J.
DATED: THURSDAY, FEBRUARY 20, 2003
APPEARANCES BY: Mr. Arthur Yallen
For the Applicants
Ms. Angela Marinos
For the Respondent
SOLICITORS OF RECORD: Arthur Yallen
Yallen & Associates
Barrister and Solicitors
204 St. George Street, 3rd Floor
Toronto, Ontario
M5R 2N5
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030220
Docket: IMM-1253-02
BETWEEN:
DMITRI BAKCHEEV and
IRINA MORDAKINA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER