Date: 19980430
Docket: IMM-2511-97
BETWEEN:
ALEXANDER KLINKO, LYUDMYLA KLINKO
and ANDRIY KLINKO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.
[1] The applicants are citizens of the Ukraine and have been found not to be Convention refugees by a panel of the Immigration and Refugee Board. The applicants' claims to Convention refugee status arise out of the activities of the husband and father, Alexander Klinko.
[2] He was an importer in the Ukraine and was concerned with corruption in the government whereby "officials connected with virtually every official transaction required a bribe". In 1995 he and five other business people got together and drafted a formal complaint which they deposited with the regional governing authority. The six businessmen did not have a group name and met only four times. The complaint was signed by each of the six business people individually. Ultimately, the complaint was denied on the ground that its assertions were false or not confirmed.
[3] It was after the filing of the complaint that Alexander, his wife Lyudmyla and child Andriy, as well as the other business people, began to have problems. Alexander's problems included being beaten, receiving anonymous telephone calls, damage and destruction of his property and an arrest for interrogation. Lyudmyla received threatening telephone calls and requests to provide evidence against Alexander. Andriy was traumatized by "disturbing events" such as the searching of the Klinko home. On the basis of these events Alexander and Lyudmyla claimed Convention refugee status based on political opinion or imputed political opinion and membership in a particular social group (i.e. the group of businessmen),1 and Lyudmyla and Andriy claimed Convention refugee status based on membership in a particular social group (i.e. their family).
[4] The panel found the applicants' evidence about their experience in the Ukraine to be credible and characterized Alexander's problems as persecution. It also found that Lyudmyla was subject to harassment but not persecution and that the evidence was insufficient to conclude that Andriy was persecuted.
[5] While the panel found that Alexander was persecuted, it determined that it was not for a Convention refugee ground. Following Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 746, which provides a broad interpretation of political opinion as "any opinion on any matter in which the machinery of state, government, and policy may be engaged" and Femenia v. Canada (Minister of Citizenship and Immigration), (30 October 1995), IMM-3852-94 (F.C.T.D) per Simpson J., that "engaged" means "sanctioned by, condoned by or supported by", the panel found that the Ukraine, as a state, did not sanction, condone or support the corrupt conduct of some customs and police officials. As such, the panel found that Alexander's complaint against corruption was not political opinion.
[6] The applicants say that the definition of "engaged" set forth in Femenia (supra), "sanctioned by, condoned by or supported by", is too narrow. However, counsel did not provide the Court with a broader definition. I have no reason to disagree with the definition of "engaged" set forth in Femenia.
[7] As far as I understand it, the applicants' case is based on the extent of corruption in government in the Ukraine. The panel found that:
| ...as of October 1996 "some 250 officers have been convicted of economic crimes so for [sic] this year, and hundreds of others have been charged ... overall, more than 9,000 Ukraine officials at various levels have been convicted of economic crimes this year, most involving bribe taking or forgery". |
The evidence before the panel included a statement by the President of the Ukraine in 1994 characterizing crimes in the Ukraine, including official corruption, as a "fifth power" and a "political" force.
[8] It would seem that the issue raised in this case is whether the machinery of the state, government or policy is engaged when official corruption is widespread. This is not a case of a few corrupt customs or police officers. The evidence is that 9,000 officials had been convicted of economic crimes in 1996 and that the President of the Ukraine had called this activity, in conjunction with overall economic crimes, a fifth and political power or force. Can it be said that the machinery of the state is not "engaged" when corruption by government officials is so widespread and that a public complaint about it does not constitute political opinion?
[9] In this case, the panel found, notwithstanding how widespread official corruption appears to be, that the state is taking action against it. The conviction of 9,000 officials, while evidence of the extent of corruption, is also evidence that the state does not sanction or condone the activity. Perhaps if the state was taking only token action against corruption it might be found to be complicit with it. However, 9,000 convictions is certainly evidence that the Ukraine does not condone official corruption and that its response is not token. I am impelled to the conclusion that in the circumstances here the panel did not err when it found, on the evidence before it, that the Ukraine did not sanction, condone or support and was therefore not engaged in the criminal conduct of corrupt police and customs officials and that, therefore, Alexander's complaint could not be said to be a political opinion within the Convention refugee definition.
[10] Alexander and Lyudmyla's claim to refugee status on the ground of membership in a social group, being the group of businessmen, was also rejected by the panel. It found the businessmen did not constitute a group as they had no name, their complaint was filed in their individual capacities and the action that was taken against them was taken against them individually and not as members of a group. While I might not have been so quick to conclude that they did not form a social group, the conclusion is supported by factual findings of the panel and is not one with which the Court should interfere.
[11] Insofar as the family group is concerned (and this social group is the basis for the Convention refugee claim of Andriy as well as Lyudmyla) the panel was correct in concluding that when the primary victim of persecution does not come within the Convention refugee definition, any derivative Convention refugee claim based on family group cannot be sustained. Otherwise, as found by the panel, the anomaly of derivative claims being allowed but primary claims being denied could result. Such a result would not be logical (see: Rodriguez v. Canada (Minister of Citizenship and Immigration), (26 September 1997), IMM-4573-96 (F.C.T.D.) per Heald D.J.
[12] With some reluctance, because the panel did indeed find that Alexander had been the victim of persecution, albeit not for a Convention refugee reason, I must dismiss the judicial review. However, I would encourage the appropriate officials of the Minister, if a humanitarian and compassionate claim is made, or under other applicable provisions of the Immigration Act, R.S.C. 1985, c. I-2, as amended, or Regulations, to consider carefully the risk of harm to these applicants if they are to return to the Ukraine.
[13] Counsel for the respondent, with the agreement of counsel for the applicant, advanced a question for certification which I would recast as follows:
| Does the making of a public complaint about widespread corrupt conduct by customs and police officials to a regional governing authority, and thereafter, the complainant suffering persecution on this account, when the corrupt conduct is not officially sanctioned, condoned or supported by the state, constitute an expression of political opinion as that term is understood in the definition of Convention refugee in subsection 2(1) of the Immigration Act? |
Marshall Rothstein
Judge
CALGARY, ALBERTA
APRIL 30, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19980430
Docket: IMM-2511-97
BETWEEN:
ALEXANDER KLINKO, LYUDMYLA KLINKO
and ANDRIY KLINKO
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2511-97
STYLE OF CAUSE: ALEXANDER KLINKO, LYUDMYLA KLINKO
and ANDRIY KLINKO v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: April 16, 1998
REASONS FOR ORDER OF ROTHSTEIN, J.:
DATED: April 30, 1998
APPEARANCES:
Mr. Byron Pfeiffer for the Applicants
Ms. Kim Conboy for the Respondent
SOLICITORS OF RECORD:
Pfeiffer & Berg for the Applicants
Ottawa, Ontario
G. Thomson for the Respondent
Attorney General of Canada
Ottawa, Ontario
__________________
1 There is no indication in the record that Lyudmyla was involved with the group of businessmen or that she made any public statements with respect to corruption herself. It appears that her claim is based on imputed political opinion in that she was taken to share in her husband's convictions. As well, her claim based on membership in the group of businessmen also appears to be premised on her husband's involvement with that group.