Date: 20000824
Docket: IMM-4265-99
BETWEEN:
ALEXANDR MIKHAILOV and
LARISSA KLIMANOVA,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
DENAULT J.
[1] The applicants seek judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated August 9, 1999, which concluded that the applicants were not Convention refugees.
[2] The applicants, Mr. Alexandr Mikhailov (the "applicant") and his wife, are citizens of Russia. They allege a well-founded fear of persecution in their country due to their Jewish nationality. The applicant was born of a Russian father and a Jewish mother. In 1993, he started working for a prestigious jewellery manufacturer named "L"Art de la Joaillerie Russe" where he became well-known and established a large clientele. In 1998, after a number of Jews working in the jewellery business had been either killed or pushed out of the business by Russians, the applicant was the only Jew left working at his place of work. He experienced a few incident that were related to his work.
[3] In August 1998, a client accused the applicant of theft and made a number of anti-Semitic remarks to him. The applicant realized that the incident was set up by Mr. Ananov, his employer. The latter told the applicant that he was being pressured by influential people and he offered to help the applicant leave the country. On September 3, 1998, the applicant and his wife were victim of an attack by three men. The next day, the applicant and his wife went on vacation to Turkey.
[4] During their absence, their apartment was vandalized. The applicant reported the incident to the police. During his meeting with a police officer, the applicant was insulted. Frustrated, the applicant yelled at the officer. The applicant was restrained by two officers and was sent to a psychiatric clinic for three days.
[5] In November 1998, the applicant was again attacked at his home. His wife called the police but nothing happened. They obtained American visas, left their country on December 14, and arrived in New York on the same day. From New York, they went to Miami where they stayed seven days, and then returned to New York for three more days. From New York, they took a bus to Canada. They arrived in Canada on December 24, 1998 and claimed refugee status at the border.
[6] The Board, in its decision, concluded that the applicants were not credible and that their behaviour was not compatible with the behaviour of people that have a well-founded fear of persecution.
[7] The applicants first submit that the Board demonstrated a lack of impartiality and erred by considering the applicant"s physical appearance in its assessment of his credibility. More particularly, the Board disbelieved the attacks suffered by the applicant were of an anti-Semitic nature because "the claimant does not have a Jewish name, is not a practising Jew, and his physical appearance does not lead you to believe he is Jewish". (My emphasis).
[8] Insofar as the Board"s remark was made in the context of the recounting of the facts, the applicant having testified that he bore a Russian surname (Tribunal Record (T.R.) p. 278), that he did not practise Judaism (T.R. p. 263), and the he ". . . cannot tell that [he] look[s] like a Jew . . ." (T.R. p. 278), this Court does not support the argument of lack of impartiality by the Board.
[9] The applicants further argue that the Board did not take into account all the evidence adduced before it. More specifically, the applicants submit that the Board did not consider the considerable level of visibility of the applicant, the fact that he was well known as a Jewish jeweller and the context in which exhibit A-8 (i.e. the reference letter) (T.R. p. 220) was written, the creation of the GUILD organization, and the context of anti-Semitism which indicates that there is a serious possibility that individual Jews may become targets of anti-Semitic attacks.
[10] The test in an application for judicial review is whether the Board erred in law, or whether its conclusions were erroneous findings of fact made in a perverse or capricious manner or without regard to the material before the Board (par. 18.1(4)(c) and (d) of the Federal Court Act). The assessment of the evidence is entirely within the discretion of the Board, and unless that discretion can be said to be unreasonably exercised, this Court may not intervene. In this case, the Board concluded, "having analyzed all the evidence, both oral and written" (T.R. p. 5), particularly the evidence revolving around the applicant"s work and the attacks he was allegedly submitted to, that the claimant had exaggerated his claim. I have not been persuaded that the Board, in reaching such a conclusion, has made an erroneous finding of fact without regard to the material before it.
[11] The same reasoning can be made about the applicants" last argument that the Board should not have questioned their sincerity about the circumstances of their trip to Miami and that the reasons they gave as to why they did not claim refugee status in the U.S.A. were reasonable. In view of the evidence, it was open to the Board to find that the applicants" explanation as to why they did not leave the airport when they arrived in New York was not convincing. As to the fact that the applicants did not claim refugee status in the U.S.A., it was relevant to assessing the seriousness of their fear.
[12] For these reasons, this application for judicial review will be dismissed. No serious question of general importance needs to be certified.
ORDER
This application for judicial review is dismissed.
____________________________
Judge
Ottawa, Ontario
August 24, 2000