Federal Court Decisions

                                                                                                                                  Date: 20001204

                                                                                                                      Docket: IMM-1393-00

OTTAWA, ONTARIO, DECEMBER 4, 2000

BEFORE:        EDMOND P. BLANCHARD J.

BETWEEN:

                                                       VALENTINA PISSAREVA

                                                          MARINA PISSAREVA

                                                                                                                                             Plaintiffs

                                                                         - and -

                                MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                           Defendant

                                            REASONS FOR ORDER AND ORDER

BLANCHARD J.

[1]         In the case at bar the Court has to decide, pursuant to an application for judicial review as set forth in s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, whether the decision by the Refugee Division of the Immigration and Refugee Board (hereinafter "the Refugee Division") on January 12, 2000 by members Rocco Famiglietti and Dominique Leclercq that the plaintiffs, nationals of the Republic of Kazakhstan, are not refugees within the meaning of s. 2(1) of the Immigration Act,^[1] is correct.

SUMMARY OF FACTS

[2]         In 1982 the plaintiff Valentina Pissareva married Victor Pissarev. The couple had two children, Marina (the co-plaintiff), born in 1984, and Alexander, born in 1993 (died in 1998). The plaintiffs are Russian by origin and citizens of Kazakhstan.

[3]         Since the collapse of the Soviet empire and the gaining of independence by Kazakhstan in 1982, the plaintiff maintained that the state of Kazakhstan has followed a policy of ethnic cleansing, especially with regard to its citizens of Russian origin.

[4]         Further, the plaintiff submitted that the present government is arbitrary and biased; that it does not protect the physical integrity of citizens; and that the crimes and violent acts of certain individuals are tolerated and go unpunished by the authorities.

[5]         The plaintiff argued that the persecution of them began in July 1997. She stated that her husband is a surgeon. This is why, according to the plaintiff, on the pretext that he was a relative of one of Mr. Pissarev's patients, one Askar of Kazakh origin came to their residence to thank Mr. Pissarev, following surgery that was crowned with success.

[6]         After that visit, Mr. Askar made repeated telephone calls to force the plaintiff's husband to sell him their apartment. After being met with several refusals, Mr. Askar stated he would take the necessary steps to appropriate the apartment.

[7]         In February 1998 the plaintiff's family was the victim of threats and acts of violence by Mr. Askar. Their car's windshield was shattered, their car tires punctured and their cat hung. After these forms of pressure, Mr. Askar allegedly repeated his request to purchase, and once again the plaintiff's husband refused.

[8]         In March 1998 the plaintiff maintained that three men working for Mr. Askar beat and injured her son and herself: she was hospitalized for three months, while her son Alexander died as a result of the attack.

[9]         No arrests were made as a result of the police investigation. The plaintiff maintained that Mr. Askar continued his threats and the investigators insisted that she withdraw her complaint, on the pretext that the attackers' families would sue her for defamation.

[10]       All these events led the plaintiff to leave Kazakhstan on July 9, 1998, accompanied by her daughter, to go to New York. It was not until a month later, on August 5, 1998, that she arrived in Canada, seeking refugee status within the meaning of s. 2(1) of the Immigration Act.

[11]       Her husband remained in Kazakhstan and the plaintiff said he did not have the money needed to pay the travel expenses.

REFUGEE DIVISION'S DECISION

[12]       Consequently, based on its assessment of the plaintiff's testimony and its review of the record, the members concluded that the plaintiffs were not "Convention refugees" within the meaning of s. 2(1) of the Immigration Act.

[13]       The Refugee Division found that the plaintiff had not established a causal link between the alleged persecution and the grounds stated in the Convention. Further, she had not shown by clear and persuasive evidence that the state of which she was a national was unable to protect her.

STANDARDS OF REVIEW

[14]       In the case at bar, the Court must judicially review a decision by the Refugee Division. The Supreme Court has clearly stated that in this context the applicable standard on points of law is that of correctness. As Bastarache J. said in Pushpanathan:

I conclude that a correctness standard applies to determinations of law by the Board.^[2]

[15]       It is also important to note that the standard of review of an assessment of the facts remains what is patently unreasonable. A number of decisions have reaffirmed that the members are in the best position to assess testimony. As the Federal Court of Appeal noted, per Décary J.A.:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.^[3]

[16]       The logical conclusion that follows from this case is that so long as the factual interpretation of the members relating to s. 2(1) of the Immigration Act is not patently unreasonable, it is not this Court's function to intervene by judicial review.

ANALYSIS

[17]       Analysis of the Refugee Division's decision indicated to the Court that the Division did not find the plaintiff's testimony plausible. Only a patently unreasonable interpretation could allow the Court to question this finding that the plaintiff's testimony was not plausible.

[18]       Thus, this Court has on several occasions reiterated that the Refugee Division can apply the rules laid down by MacGuigan J.A. in Sheikh. If the members come to the conclusion that in light of a claimant's testimony and the record as a whole, he or she does not meet the criteria for recognition as a "Convention refugee", they will not grant the application:

. . . even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.^[4]

[19]       In view of the circumstances of the case at bar, as I mentioned earlier, it is not within this Court's jurisdiction to undertake to assess the plaintiff's testimony. The members are in the best position to render judgment on that point. In light of their decision, and after analysing the evidence in the record as a whole, I conclude that the Refugee Division did not make a patently unreasonable interpretation of the facts.

[20]       The plaintiff further argued that the Commission erred in law in concluding that the plaintiff had established no connection between the alleged persecution and the grounds of the Convention.

[21]       In order to succeed in her claim, the plaintiff must establish a causal connection between her fear of persecution and one of the grounds mentioned in the Convention. As the Federal Court of Appeal stated in Rizkallah:

To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason.^[5]

[22]       Essentially the dispute on this point turns on the assessment of the evidence made by the Refugee Division of the protection offered by the police and the ability of the Kazakh government to protect its citizens. As the panel indicated, it was not established that this situation was related to one of the grounds in the Convention. In this connection, the decision seems to the Court to be quite correct in law and properly based on the documentary evidence referred to by the Refugee Division.

[23]       As Wetson J. said in Chkliar:

A finding that the applicants feared crime rather than persecution is not inconsistent with the Board's assessment of the general conditions in Kazakhstan.^[6]

[24]       In the case at bar, the Refugee Division concluded that the difficulties encountered by the Kazakhstan citizens were not based on ethnic factors. It is thus essential to establish persecution on the basis of one of the grounds mentioned in the Convention in order to obtain refugee status.^[7]

[25]       In my opinion, it is important to recognize that extortion, threats of beating and the use of violence are crimes. The fact that the perpetrators of these acts are Kazakhs and the victims are Russians does not make them de facto acts of persecution within the meaning of the Convention.

[26]       I consider in the circumstances, in light of the rules stated by the Supreme Court of Canada in Ward, that the panel could reasonably conclude that the plaintiff had not discharged the burden of proof upon her of establishing that she could not obtain state protection. In part of his analysis of s. 2(1) of the Immigration Act, La Forest J.A. said:

Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant . . . Although this presumption increases the burden on the claimant, it does not render illusory Canada's provision of a haven for refugees. The presumption serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant. Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already.^[8]

[27]       As regards the plaintiff's failure to claim refugee status in the U.S., where she lived for nearly a month before setting foot on Canadian soil, this Court has many times said that the Refugee Division must take claimants' behaviour into account. The fact of passing through a country which is a signatory of the Convention without claiming refugee status as quickly as possible may be one factor in assessing the subjective aspects of her claim.^[9]

[28]       Applying these rules to the facts of the case at bar, I am persuaded that the Refugee Division's factual interpretation is not patently unreasonable. Further, I am also persuaded that the Refugee Division correctly interpreted the points of law. The plaintiff did not establish a connection between the alleged persecution and the grounds stated in the Convention and did not provide "clear and persuasive evidence" that the state of Kazakhstan does not have the necessary capacity to provide protection to its nationals.

[29]       For all of these reasons, I dismiss the application for judicial review.

                                                                       ORDER

FOR THESE REASONS:

The application for judicial review from a decision of the Refugee Division of the Immigration and Refugee Board on January 12, 2000 by members Rocco Famiglietti and Dominique Leclercq that the plaintiffs, nationals of the Republic of Kazakhstan, are not refugees within the meaning of s. 2(1) of the Immigration Act, is dismissed.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                   FEDERAL COURT OF CANADA

                                                               TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                    IMM-1393-00

STYLE OF CAUSE:                                         VALENTINA PISSAREVA

MARINA PISSAREVA

v.

MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                    OTTAWA, ONTARIO

DATE OF HEARING:                          NOVEMBER 22, 2000

REASONS FOR ORDER AND ORDER BY:             BLANCHARD J.

DATED:                                                            DECEMBER 4, 2000

APPEARANCES:

MICHEL LE BRUN                                                                             PLAINTIFF

MICHEL PÉPIN                                                                                  DEFENDANT

SOLICITORS OF RECORD:

MICHEL LE BRUN                                                                             PLAINTIFF

MONTRÉAL, QUEBEC

MORRIS ROSENBERG                                                                      DEFENDANT

DEPUTY ATTORNEY GENERAL OF CANADA

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