Friday, May 06, 2011

Kirichenko–failure to deal with relevant evidence on conscientious objection

Kirichenko v. Canada (Citizenship and Immigration), 2011 FC 12 (CanLII)

Judge: Justice Russell

Date heard: October 28, 2010

Date decided: January 6, 2011

Counsel for Kirichenko: Geraldine MacDonald

Counsel for Minister: Gordon Lee

The Applicant is a citizen of Russia by birth and Israel by marriage. He claimed refugee protection in Canada due to fear of returning to either country (para. 2).

The Applicant testified that he had been kidnapped by Chechen rebel in 1995 and received injuries then. In 1997 he testified against one of the kidnappers and consequently received death threats. In 1997, he had planned to testify that Russian authorities had been complicit in the kidnapping, and he believed that the authorities wanted to stop him from giving testimony. He and his wife fled to Israel, where they had a child (para. 3).

The Applicant and his wife returned to Russia in 2000 and divorced in 2001. In 2003, the Applicant was again called to testify against his kidnappers and received death threats. He testified that he appeared in court in 2005 and on the following day was attacked by three men. Later in 2005 he was the victim of an attempted hit-and-run. In 2006, he was called to testify again and again received threats, so he decided to leave Russia (para. 4).

In 2006, the Applicant travelled to Israel, where he discovered that because he had been absent for over three years, his bank accounts had been closed and his documents expired. Because he was no longer the father of a young child, he would have to serve in the Israeli military. He left Israel, spent two months in Germany without claiming asylum, and then came to Canada (para. 5).

The RPD found that the Applicant lacked credibility (para. 7), and that he had not established that he was a conscientious objector to serving in the Israeli military (paras. 6-16), in part because it found he had served in the Russian military (para. 10).

At the Federal Court, the Minister conceded that the RPD had erred in finding that the Applicant had served in the Russian military, but maintained that the rest of the analysis on Israel was sufficient to allow the decision to stand (para. 45). Justice Russell, however, found two errors (para. 46).

First, the RPD cited and relied upon a Response to Information Request (an internal research document) that had never been disclosed to the Applicant; this was not “a situation where it can be said that the RPD used a country condition document from public sources that was available to the Applicant” (paras. 47-48). 

Second, the RPD did not mention or deal with the documentary evidence that conscientious objector status was not available to males in Israel (para. 49).

These two errors rendered the decision reviewable since “the whole notion of there being a way out for the Applicant through some available option that he failed to apply for was, on this evidence, entirely illusory” (para. 51).


No comments: