Date: 20020904
Docket: IMM-781-01
Neutral citation: 2002 FCT 939
Ottawa, Ontario, the 4th day of September, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
BROMBERG, Anjela
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision dated January 31, 2001, by which the Refugee Division of the Immigration and Refugee Board (the Refugee Division) ruled that Angela Bromberg (the applicant) is not a refugee within the meaning of the United Nations Convention relating to the status of refugees (the Convention).
STATEMENT OF FACTS
[2] The applicant, a citizen of Uzbekistan, alleges a well-founded fear of persecution because of her Armenian and Jewish nationality. Her parents were Armenians but were deported by Stalin's regime to Uzbekistan in the 1930s. The applicant is of Armenian nationality, born in Andijan, Uzbekistan on October 12, 1938.
[3] The applicant alleges that, from her birth to the spring of 1990, she was racially discriminated against on the basis of her membership in the Armenian minority. She was harassed by her schoolmates when she was younger. At university, she was deprived of an invitation to do an internship in Cairo. She studied Arabic, French and Farsi as well as history and music. She was often confronted with discriminatory practices in her job searches. Nevertheless, she worked at the university, in the Central Archives of Tashkent, a city in Uzbekistan, in a municipal library and in a childcare centre.
[4] In the spring of 1990, the applicant says, she went to Andijan to help her cousin and her sick aunt. While she was there, the Uzbeks, led by the mullahs, burglarized and set fire to the home of the family with whom she was staying and attacked Armenians and Jews. Her neighbour's home was also set afire at that time. The three women protected themselves by hiding in the cellar.
[5] The applicant says that when she returned to Tashkent she found her home inhabited by some Uzbeks. She had to go and live with another aunt in that city.
[6] In the spring of 1993, the applicant's brother came to Canada with his family. In May 1994, the applicant's mother came to join him.
[7] In April 1994, the applicant and her son Vakhtang were attacked by a group of young Uzbeks. The applicant was hospitalized for a week, apparently as a result of a heart attack. Following this event, her son Vakhtang obtained Russian citizenship in May 1994 and left the Republic of Uzbekistan in June 1994 for Moscow in the hope of finding work there and eventually getting his mother to come.
[8] In 1995, one of the applicant's aunts came to Canada, as did her cousin and her three children. They all obtained refugee status in Canada. The applicant also has a son, John, who emigrated to Israel in 1997.
[9] On May 25, 1998, the applicant's brother in Canada died. Since she had no money, the applicant did not come for the funeral but in May 1999 the family bought her an airline ticket to mark the anniversary of her brother's death. The applicant thus came to Canada for the first time.
[10] On August 6, 1999, the applicant received a call from friends in Moscow informing her that her son was in prison. She left that night for Moscow. She obtained the release of her son, who had been beaten by the police. After this incident, they made the decision to leave for Canada. She says she made attempts to obtain visas for Canada, but since she was not entitled to remain in Russia more than three days she had to return to her aunt's in Tashkent, Uzbekistan.
[11] The applicant alleges that on September 3, 1999, while she was at the butcher's, he threw some rotten meat in her face and the other Uzbeks pushed her and she was hit over the head and suffered a concussion. The police did not want to help her and told her "Get out of here!" The applicant went to the home of a friend who called an ambulance. The applicant was hospitalized for two weeks.
[12] On November 28, 1999, the applicant went to Moscow to meet her cousin, who arrived from Canada bringing with her some invitations. On December 1, 1999, the applicant and her son obtained visas for Canada. The applicant then returned to Tashkent to pack her bags and say good-bye to her aunt.
[13] However, while the applicant was in Moscow, her aunt fell ill and died on December 10, 1999. After her aunt's funeral, the applicant was ill until the middle of January 2000.
[14] The applicant alleges that she returned to Moscow on February 4, 2000. On February 7, 2000, she received a notice of expulsion from Russia for having lived in Moscow more than three days without registering. The applicant and her son left Moscow on February 15, 2000, and arrived in Canada on the same day. They claimed refugee status on March 27, 2000.
[15] The two claims were heard on November 9, 2000, and December 4, 2000, respectively.
DECISION OF THE REFUGEE DIVISION
[16] In rejecting the applicant's claim, the Refugee Division ruled that she lacked credibility owing to contradictions and inconsistencies in her testimony that could not be explained to the panel's satisfaction.
[17] The Refugee Division drew attention to the following contradictions and inconsistencies in finding that the applicant lacked credibility:
1. The applicant's story to the effect that she was unable to obtain help from the authorities is contradicted by the documentation, which indicated that she could obtain legal assistance in suing her persecutors;
2. In her account (PIF), the applicant writes that she was beaten in Tashkent on September 3, 1999, while the Department of Justice exhibit notes that this incident occurred on September 14, 1999;
3. The medical certificate notes that the applicant was hospitalized for 13 days, while in her testimony she says she was bedridden in the hospital for 10 days;
4. The applicant testified that she went to the lawyers' office the day she was released from the hospital, but the documents indicate that this was done the next day;
5. The applicant's conduct in returning at least twice to Uzbekistan, once to visit and care for her sick aunt, and a second time to pack her bags and say good-bye, is not compatible with someone who says she fears persecution;
6. The applicant testified that she did not intend to claim refugee status in Russia, although in a "[Translation] administrative law offence" report (Exhibit P-5) she explains that she "[Translation] wanted to appeal to the competent authorities in Moscow to request refugee status".
[18] In ruling on the applicant's lack of credibility, the Refugee Division did not consider the cumulative aspect of the persecutions the applicant claims to have suffered:
The Tribunal would like to indicate that having retained the credibility of Mrs. Bromberg as problematic and that the allegations presented are not retained as trustworthy, there is no need to consider the cumulative aspect.
[19] The Refugee Division also thought the applicant had come to Canada because she no longer had family in Uzbekistan and wished to be with her son and her other family members. The panel concluded that this, in itself, is not a Convention ground for accepting refugees:
The Tribunal believes that Mrs. Bromberg came to Canada because she has no one in Uzbekistan and that she wanted to be with her son and family members, however, this, in itself, is not a Convention ground for accepting refugees.
ISSUES
[20] The applicant testifies that the Refugee Division based its decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before it, particularly in respect of the applicant's credibility and the assessment of her fear of persecution:
(a) The Refugee Division found that the applicant had decided to leave Canada on August 6, 1999, after coming here in May 1999, although the applicant says she did not leave Canada voluntarily.
(b) The Refugee Division drew negative conclusions concerning the applicant's credibility in criticizing her, on the one hand, for not claiming refugee status in Russia while she was there in August 1999 and February 2000, while, on the other hand, the Division acknowledges that the applicant's son was justified in fearing persecution in Russia on the basis of his membership in the Caucasians as a Jew and Armenian.
(c) The Refugee Division, in finding a lack of credibility, failed to consider the cumulative effect of the persecutions the applicant and her family members had suffered.
SUBMISSIONS BY PARTIES AND ANALYSIS
Did the Refugee Division err in finding that the applicant had decided to leave Canada on August 6, 1999, after coming here in May 1999, although the applicant says she did not leave Canada voluntarily?
[21] The Refugee Division concludes:
(...) She indicated that she thought things would get better, yet Mrs. Bromberg was confronted with the fact that she went back to get her son out of police custody in Moscow, and the Tribunal finds this understandable, she also took the liberty of going back to Uzbekistan. The claimant said that she had an aunt there, and that she could not leave her, yet the Tribunal must indicate that Mrs. Bromberg had already left her aunt when she came to Canada in May 1999.
[22] The applicant testifies that, contrary to the findings of the Refugee Division, her departure from Canada for Moscow on August 6, 1999, cannot be characterized as voluntary owing to the exceptional circumstances that took her to Moscow, the "exceptional reasons" being that her son was illegally detained.
[23] I think the applicant's argument does not accurately reflect the Refugee Division's finding. The Division found that it was understandable that the applicant would return to Moscow to help her son, but it noted that she also returned voluntarily to Uzbekistan. I note as well, as is indicated in the preceding recitation of the undisputed facts, that the applicant returned to Tashkent a second time in early December 1999 to pack her bags and say good-bye to her aunt. I am of the opinion that the Refugee Division was justified in casting doubt on the applicant's subjective fear in the face of her return to Uzbekistan.
[24] In Cihal v. Canada (M.C.I.) (1997), 126 F.T.R. 198, Mr. Justice Rothstein held that the Refugee Division could find a lack of subjective fear in the fact that the claimant had returned to the country in regard to which he alleged a fear of persecution.
[25] Madam Justice Tremblay-Lamer decided likewise in Ali v. Canada (M.C.I.) (1996), 112 F.T.R. 9 (F.C.), relying on Mr. Justice Rothstein's judgment in Bogus v. Canada (M.E.I.) (1993), 71 F.T.R. 260. Rothstein J. had concluded, at paragraph 5:
That he re-availed himself of the protection of Turkey on three occasions (counsel agreed that the facts are that he had only returned to Turkey twice) and that this reflects negatively on his alleged fears. The panel stated at p. 89:
In addition, the panel must take note that you did re-avail yourself, and there's no - there appears to be no conflict in your testimony in this area - of the protection of Turkey on no less than three occasions. You went back on three occasions. And this action itself must reflect negatively upon the voracity [sic] of your alleged fears, in our opinion, of returning now to Turkey.
In my opinion, it was open to the panel to assess the evidence and conclude that the applicant did not have a credible basis for his claim by reason of his actions or inactions that were inconsistent with having a subjective and objective fear of persecution in Turkey. Such findings are clear and unambiguous. It is true they do not include express words such as "we do not believe the applicant". But the words that are used "reflect negatively upon the voracity [sic] of your alleged fears" and "[t]hese are not the actions or inactions of a person in your circumstances", together with the reasons given, demonstrate beyond doubt, that the panel did not believe that the applicant had a subjective and objective fear of persecution in Turkey and therefore did not have a credible basis for his refugee claim. [Emphasis added]
[26] In my opinion, the Refugee Division did not err in inferring that the applicant's subjective fear of persecution was undermined by the fact that she had voluntarily returned to Uzbekistan.
[27] In connection with her hospitalization, the hearing transcript discloses that the applicant said she was bedridden for ten days and that it was not until the eleventh day that she was able to get up. In my opinion, it is unreasonable to conclude from this testimony that there is a contradiction with the medical certificate.
[28] Similarly, the applicant's testimony does not necessarily confirm that she went to the lawyers on the same day she left the hospital.
[Translation]
Letter from the N.2 law firm of the Marabadski ward of the city of Tashkent
Further to your oral request, I confirm that you did in fact report on 17.09.99 to the N2 law firm in Marabadski ward of Tashkent to obtain an explanation of your rights as a result of some unlawful actions by unknown persons who had assaulted you on 14.09.99 in downtown Tashkent....
She says:
Transcript at page 540:
...the only thing I did was when I was discharged from the hospital was (inaudible). I saw in front of that hospital there was a lawyers... it was a firm of the lawyers so I went there and asked one of lawyer to help me.
In my opinion it was also possible to conclude from this testimony that she had gone to the lawyers the day after since she does not specify that she did so immediately upon her release.
[29] In regard to the contradiction between her story and the Department of Justice exhibit which reports that the incident in Tashkent occurred September 14 and not September 3, 1999, the applicant explains the lack of concordance as a typing error. Given the other contradictions, the Refugee Division did not accept this explanation.
[30] In my opinion, the two contradictions cited by the Refugee Division, which I have discussed in paragraphs 27 and 28 of these reasons, are unreasonable since they are not based on the evidence. Notwithstanding this determination, I am satisfied that the decision does not warrant the intervention of this Court. I am satisfied, despite these errors, that the Refugee Division, as a result of the other inconsistencies, contradictions and improbabilities cited in its reasons, reasonably concluded that the applicant lacked credibility.
Did the Refugee Division err in drawing negative conclusions concerning the applicant's credibility in criticizing her, on the one hand, for not claiming refugee status in Russia while she was there in August 1999 and February 2000, while, on the other hand, the Division acknowledges that the applicant's son was justified in fearing persecution in Russia on the basis of his membership in the Caucasians as a Jew and Armenian?
[31] In this regard, the Refugee Division decided as follows:
(...) She was asked if, when in Moscow, she intended to ask for refugee status. The claimant indicated that she had no intention and that she never even thought about that. She was then confronted with a document [Exhibit P-5, Violator's explanations of the administrative law offence] which clearly indicates that Mrs. Bromberg wanted to ask for refugee status while in Moscow. She then changed her answer and said that she wanted to ask for it but then received a deportation order. This is another indication of how the response of Mrs. Bromberg changes and is inconsistent with the evidence she has presented, and the explanations for the inconsistencies do not provide any reasonable explanations. (...)
[32] On my reading of the reasons of the Refugee Division, I am unable to conclude that the Refugee Division did in fact criticize the applicant for not claiming refugee status in Russia. In my opinion, it criticizes her instead for contradicting in her testimony a document that clearly confirms that she had the intention of claiming refugee status in Russia. I think the Refugee Division could reasonably find that the explanations provided by the applicant on this question were not reasonable and that this contradiction could undermine her credibility.
Did the Refugee Division, in finding a lack of credibility, err in failing to consider the cumulative aspect of the persecutions the applicant and her family members had suffered?
[33] The applicant argues that the Refugee Division erred in not considering the following things:
- the persecution of all the members of her family: her son, her aunt, her cousin and her three children, her brother and her mother, and the fact that they all obtained refugee status in Canada;
- the break-up of the applicant's family as a result of the political atmosphere in Uzbekistan and the responsibility of the Uzbeks in discriminating against and persecuting minorities;
- the suffering experienced by the applicant as a result of her son's exile in Russia since 1994, the two of them having always lived together until then;
- by refusing the applicant's claim and accepting her son's, the panel exposed the applicant to a new separation from her son;
- in thus deciding, the panel failed to consider and appreciate the fundamental principle, which is to promote the reunification of the members of a refugee family.
[34] I agree with the respondent's submissions that the Refugee Division is not bound by a decision rendered by another panel of the same Division [Kocab v. Canada (M.E.I.), A-83-91, October 15, 1991, [1991] F.C.J. No. 1057 (QL)]. Moreover, in a number of decisions handed down by the Federal Court, it has been held that judges sitting in review of a decision of the Refugee Division cannot consider the facts and conclusions drawn by the other panels of the Division in other cases. [See Ahmed v. Canada (M.C.I.) (1997), 134 F.T.R. 117.]
[35] In Casetellanos v. Canada (S.G.), [1995] 2 F.C. 190, Mr. Justice Nadon defined the fundamental principle of family reunification as follows:
B. Family Unity as a Concept in Canadian Refugee Law
The principle of family unity requires that persons granted refugee status should not be separated from their closest family members, particularly when a situation of dependency exists; it is a principle of togetherness.
In that judgment, Nadon J. analyzed the principle of family reunion, including paragraph 3(c) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) and some relevant paragraphs of the Handbook on Procedures and Criteria for Determining Refugee Status, having regard to the 1951 Convention relating to the status of refugees and the Protocol relating to the Status of Refugees, 1967. He concluded that the principle of family unity does not relieve a claimant of the onus of demonstrating that he falls within the definition of "Convention refugee" set out in subsection 2(1) of the Act.
[36] I am of the opinion that, to the degree that the applicant has no fear of persecution in regard to Uzbekistan, her claim could not be granted on the ground that her son may be given refugee status in his country of citizenship, Russia.
[37] Moreover, it is the task of the Refugee Division to assess a claimant's credibility, and absent any unreasonable error of the panel, its findings are immune from judicial review [Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)].
[38] Furthermore, the documentary evidence that the Refugee Division was entitled to accept and to favour in place of the testimony and the uncorroborated story of the applicant, notes that:
(1) Uzbekistan is not in the mist of an inter-ethnic crisis (Human Rights Watch, 1998, pages 10-12);
(2) Police and security forces in Uzbekistan have been particularly adamant in fighting the political opposition and independent Muslims (Amnesty International Annual Report, 1999);
(3) The 1999 U.S. State Department Report on Uzbekistan did not mention any specific consistent inter-ethnic violence, as that reported by Mrs. Bromberg.
Conclusion
[39] I conclude, therefore, that the applicant has not discharged her onerous burden of establishing that the specialized claims panel so erred in fact or in law as to warrant the intervention of this Court in weighing the credibility of the oral and documentary evidence submitted and selecting the necessary inferences from it.
[40] For these reasons, the application for judicial review will be dismissed.
[41] The parties have not proposed the certification of a serious question of general importance as contemplated by section 83 of the Immigration Act. It is not necessary to certify any serious question of general importance.
[42] The Refugee Division determined that the applicant was not a Convention refugee. However, in my opinion the matter requires particular attention by the competent authorities, if such is requested, having regard to the humanitarian considerations resulting from the facts of this case.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-781-01
STYLE: BROMBERG, Anjela v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 19, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLANCHARD
DATED: September 4, 2002
APPEARANCES:
Daniel Paquin FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alarie, Legault, Beauchemin, Paquin, Jobin,
Brisson & Philpot FOR THE APPLICANT
1259 Berri Street, Suite 1000
Montréal, Quebec H2L 4C7
514-844-6216
Morris Rosenberg FOR THE RESPONDENT
Department of Justice
Montréal Regional Office
Guy Favreau Complex, East Tower, 9th Floor
200 René-Lévesque Blvd. West
Montréal, Quebec H2Z 1X4