Date: 19971216
File: IMM-2034-96
OTTAWA, ONTARIO, THIS 16th DAY OF DECEMBER 1997
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
YIOUBOV PRIADKINA and MARIA PRIADKINA,
Applicants,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is dismissed.
"MARC NADON"
Judge
Certified true translation
C. Delon, LL.L.
Date: 19971216
File: IMM-2034-96
Between:
YIOUBOV PRIADKINA and MARIA PRIADKINA,
Applicants,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
NADON J.
[1] The applicants, Yioubov Priadkina and her mother Maria Priadkina, are seeking review of a decision of the Refugee Determination Division (the "tribunal") delivered at Montréal on May 7, 1996. In that decision, the tribunal decided that the applicants were not Convention refugees as defined in subsection 2(1) of the Immigration Act.
[2] A brief summary of the facts will be useful in disposing of this case. The applicants, who are citizens of Kazakhstan, left their country claiming to have been persecuted by the Kazakh nationalists by reason of their Jewish ethnic origin and their language, Russian.
[3] In the personal information form of the applicant Yioubov Priadkina there is a statement that she and her mother were subjected to numerous appalling incidents related to their ethnic origin or their religion. In its decision, the tribunal referred to those allegations, which there is no point in reproducing in full here. The incidents included harassing calls, insults, threats and other acts of intimidation directed at both mother and daughter, pressure exerted on the daughter to quit her job, an act of vandalism in her office followed by dismissal, an act of physical violence against the mother, and vandalism and setting fire to their home.
[4] In describing these acts, the applicants asserted that they were committed by Kazakhs and were directed against them because of their ethnic origin and language. On this point, they gave examples of the insults hurled at them and offensive comments made. On a number of occasions, they said, they tried to complain to the police, but the police did nothing.
[5] The tribunal concluded that the applicants had not proved that they were "Convention refugees" as defined in subsection 2(1) of the Immigration Act. On the question of the applicants' credibility, the tribunal wrote:
| [TRANSLATION] The claimants' testimony is not credible. In our view, the fact that they did not claim refugee status in the United States before entering Canada is inconsistent with their claim that they had a subjective fear of persecution. The acts of persecution against Russians and Jews that they impute to the AZAT movement are not consistent with the documentary evidence. ... |
[6] In addition, the tribunal noted that the applicants had not reversed the presumption that a State affords protection to its citizens. The members of the tribunal were of the opinion
| ... that the claimants have not provided clear and convincing evidence that they were deprived thereof or would be deprived thereof in future. |
[7] Lastly, the tribunal expressed its opinion as to the other possibilities available to the applicants:
| ... we are of the opinion that since the two ladies are Jewish and Russian they can avail themselves, if not of their Russian citizenship, then at least of the Israeli citizenship that is guaranteed to them under the Israeli law regarding the return of Jews to Israel. Adequate protection is afforded them in Israel, according to what we may deduce from the documentary evidence concerning Israel. |
[8] In support of their application for judicial review, the applicants contended that they had no duty to claim refugee status in Russia or in Israel, and that the tribunal erred in deciding that they had such a duty. In their view, the question of why a person did not claim the protection of a country is relevant only in respect of the countries whose nationality he or she holds, and they had neither Russian citizenship, because dual citizenship is prohibited in Russia, nor Israeli citizenship.
[9] The applicants also contend that the tribunal erred in accepting the documentary evidence in preference to the testimony and the evidence introduced in support of their claim.
[10] Lastly, the applicants cited the error committed by the tribunal in deciding that the fear was not real since they had not claimed refugee status in the United States, where they were in transit for only one day.
[11] In order for an application for judicial review to be allowed, not only must the tribunal have committed an error, but that error must have been a determining factor in the final decision. In my view, the determining grounds for the decision are the applicants' credibility and the fact that they were unable to satisfy the tribunal that the state of Kazakhstan could not or would not protect them.
[12] There can be no doubt that the applicants had no duty to claim refugee status in Russia or in Israel. Although the tribunal's conclusion on this point is erroneous, it is not, in my view, a determining factor in the tribunal's conclusion concerning the applicants' credibility and the protection afforded by the state of Kazakhstan.
[13] While the applicants had no duty to claim refugee status in the United States, the tribunal relied on the facts as a whole, including their failure to claim in the United States, in concluding that they were not credible. Faced with contradictory evidence, the tribunal preferred the documentary evidence and found the applicants' testimony to be implausible, a conclusion that it was open to them to reach. Although the applicants did in fact spend only one day in the United States, it is important to note that when they arrived in the United States they were given the right to remain there for six months. Accordingly, in my opinion, the tribunal was entitled to take into consideration the fact that the applicants had not claimed refugee status in the United States. I cannot conclude that the tribunal erred in having regard to that evidence.
[14] In conclusion, the applicants have not satisfied me that the tribunal committed such an error as would warrant the intervention of this Court. As a result, the application for judicial review is dismissed.
"MARC NADON"
Judge
Ottawa, Ontario
December 16, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-2034-96
STYLE OF CAUSE: Yioubov Priadkina et al. v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 2, 1997
REASONS FOR ORDER OF NADON J.
DATED: December 16, 1997
APPEARANCES:
Michelle Langelier FOR THE APPLICANTS
Marie Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANTS
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada