Date: 19981211
Docket: IMM-5501-97
BETWEEN:
NATHALIA ALIFANOVA
RODION ALIFANOV
YEVGHENIA ALIFANOVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.:
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board dated November 25, 1997, whereby the applicants were determined not to be Convention refugees. The applicants seek an order quashing the decision dated November 25, 1997 and an order remitting the matter back to the Board for another hearing.
FACTS
[2] The facts are summarized in the Board"s decision dated November 25, 1997 and the parties agree that these facts are correct. The applicant, Nathalia Alifanova and her children, Rodion and Yevghenia, who are from Kazakhstan, claimed convention refugee status on March 16, 1997. The applicant testified that while in Kazakhstan they were discriminated against at the hands of Kazakh men. Her family was discriminated against at the workplace and at school. While working at a hospital, a Kazakh doctor attempted to rape her daughter. Further to her husband starting and operating a business, he faced extortion from Kazakh men who demanded monthly sums of money. The applicant and her husband were assaulted two weeks later and informed that it was a second warning. She further testified that after her husband sought the protection of police authorities they received telephone death threats in the following weeks. On August 28, 1996, the building housing the business was entirely destroyed. Another complaint was filed and renewed telephone death threats followed. The applicant testified that her family had no choice but to change address and stay with friends. Fearful for her children, the applicant and her children left Kazakhstan on December 29, 1996, and sojourned in Holland, Mexico and the United States before they reached the Canadian border on March 16, 1997.
Decision of the Immigration and Refugee Board
[3] Based on the testimonial and documentary evidence, the Board held that the applicants were not Convention refugees. The Board found that there was no link between the applicant"s fear of persecution and the reasons recognized under the Convention: race, religion, nationality, political opinion and particular social group. Despite the applicant"s allegations of persecution based on nationality, the Board found that they had been victims of organized crime in Kazakhstan and that they had not been persecuted because of their nationality. Furthermore, the Board concluded that the evidence before the Board and section 50 of the Kazakhstan Criminal Code were insufficient to support a finding that the applicants would, based on a reasonable probability, be persecuted if returned to their country of origin.
PARTIES" SUBMISSIONS
[4] The applicants make the following submissions. Firstly, the Board failed to properly motivate their findings. Secondly, the Board erred in law in holding that the applicant"s fear of persecution presented no link with the reasons under the Convention. It is submitted that the Board failed to consider that most acts of persecution are criminal in nature, that persecution at the hands of individuals targeting an ethnic minority bearing a different nationality falls within the purview of the Convention, that the perpetrators of criminal activities against the applicants are Kazakh while the applicants are Russian natives. Thirdly, the Board erred in law in making adverse findings of credibility based on capricious or arbitrary considerations. The Board"s finding that the applicants did not claim refugee status in Holland or in the United States before reaching Canada is not at the pith and substance of their claims. Even if considered in the context of credibility, the circumstances were not serious enough to negate their subjective fear of persecution. Fourthly, the Board erred in law in failing to properly consider all the evidence before it. The husband"s present situation which is without problems is not relevant and does not negate the previous criminal activities suffered by the applicants or undermine their fears. It is argued that the Board failed to acknowledge and analyse the institutionalized discrimination faced by native Russians in Kazakhstan. The applicants submit that the Board"s conclusion that the applicants would probably not be persecuted if returned to their home, which is based on section 50 of the Criminal Code of Kazakhstan, is not sufficient to satisfy the applicants that repatriation is respected in practice. This latter submission was not forcefully argued.
[5] The respondent Minister submits that the Board found that the alleged activities against the applicants were criminal in nature and did not constitute persecution. The Board found that the criminal activities were not linked to any of the reasons under the Convention as there is no evidence to support a finding that the perpetrators who attacked the applicants only targeted them because they were of Russian nationality. The fact that the perpetrators were Kazakh and that the applicants are Russians does not show that there exists a link between the persecution suffered and the reasons under the Convention. Further, it is submitted that the applicant"s answer to question 37 of the personal information form shows that the criminal activities were not due to their nationality but to the fact that her husband operated a flourishing business. With respect to the argument based on institutionalized discrimination, the Minister submits that, pursuant to the Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, January 1992, discrimination does not constitute persecution within the meaning of the Convention and that it would amount to persecution only in particular circumstances. The applicants did not show that the alleged institutionalized discrimination complained of would have had grave adverse consequences. The Minister further submits that the husband"s lack of problems is not an irrelevant consideration. If the perpetrators targeted the applicants based on their nationality, it is likely that their activities would have persisted despite the fact that he was no longer operating a business or was attempting to avoid coming into contact with Kazakhs.
[6] With respect to the applicants" failure to claim refugee status in Holland and in the United States, it is contended that it is trite law that failure to claim refugee status as soon as the opportunity arises is a relevant fact from which the Board can draw adverse inferences. In the present case, the applicants spent approximately three months in the United States before claiming refugee status. With respect to the interpretation of section 50 of the Criminal Code of Kazakhstan, the Board relied upon serious and objective information provided in a document entitled the Country Report on Human Rights Practices for 1996 judicially referred to in Hassan v. M.E.I. (1993), 152 N.R. 215 (F.C.A.).
ISSUES
[7] Whether the Board committed a reviewable error in deciding that the applicants were not Convention refugees within the meaning of the Convention Relating to the Status of Refugees.
[8] Whether the Board committed a reviewable error by not discussing, in the analysis part of its decision, all or most of the allegations of the applicants.
DISCUSSION
[9] The applicants submit that the Board erred in finding that there was no link between the persecution complained of in Kazakhstan and the reasons under the Convention.
[10] To qualify as a Convention refugee, claimants must establish that the persecution they fear is linked to one of the reasons listed in the Convention (Rizkallah v. Canada (M.E.I.) (6 May 1992) A-606-90 (F.C.A.)). The Board found that the persecution suffered by the applicants at the hands of Kazakhs was related to organized crime, and not to one of the reasons listed in the Convention.
[11] The Minister relies on the following decisions which considered similar facts: Sokolov v. Canada (M.C.I.), IMM-3853-97, F.C.T.D., September 16, 1998, Karaseva v. Canada (M.C.I.), IMM-4683-96, F.C.T.D., November 26, 1997 and Vetoshkin v. Canada (M.C.I.), IMM-4902-94, F.C.T.D., June 9, 1995.
[12] The jurisprudence submitted by the applicants, I am satisfied, is not applicable, in the main, to the facts before me in the present case.
[13] In Sokolov v. Canada (supra), Justice Blais states at pages 2 and 3 in paragraphs 6, 7, 8 and 9 :
| Comme le soulève très justement dans ses prétentions le procureur du défendeur, la Section du statut n"a tiré aucune conclusion négative quant à la crédibilité des demandeurs. La Section du statut a cru que les demandeurs avaient été victimes des tentatives d"extortion. Toutefois, elle a jugé que ces tentatives d"extortion ne pouvaient soutenir une crainte bien fondée de persécution pour l"un des cinq motifs prévus à la Convention. |
| Le procureur du défendeur souligne justement qu"aucun élément de preuve ne démontre que ces actes criminels perpétrés contre les demandeurs étaient motivés, par leurs auteurs, pour des raisons nationalistes. |
| Afin de réussir dans leur revendication, les demandeurs se devaient d"établir un lien entre leur crainte de persécution et l"un des motifs prévus à la Convention: |
| To succeed, refugee claimants must establish a link between themselves and persecution for Convention reason. |
| La conclusion de la Section du statut concernant l"absence de lien entre la crainte alléguée des demandeurs et l"un des cinq motifs prévus à la Convention n"est manifestement pas déraisonnable. |
[14] In Karaseva (supra), the applicants who were of Russian nationality claimed persecution at the hands of Kazakhs. Starting at paragraph 17, I state the following:
| The Board made the following finding at page 3 of its decision: |
| [TRANSLATION] In the panel"s view, each of the claimants was involved in an incident more similar to a crime than to an incident constituting persecution for one of the five reasons set out in the convention. |
| The respondent submits that the Board"s finding that there was no persecution is consistent with the context and circumstances of the incidents in question. I agree completely with that finding. In support of his argument, the respondent quotes the following comment by Wetston J. in Chkliar v. Canada (Minister of Citizenship and Immigration) , [1995] F.C.J. No. 96 (IMM-2991-94): |
| A finding that the applicants" [sic] feared crime rather than persecution is not inconsistent with the Board"s assessment of the general conditions in Kazakhstan. |
| In the case at bar, the Board did not really comment on the present situation in Kazakhstan. However, the documentary evidence on conditions in Kazakhstan that the Board had before it at the hearing is consistent with its finding on this point (see in particular the report of the International Helsinki Federation for Human Rights at pages 88 and 89 of the record prepared by the Refugee Division pursuant to Rule 17 of the Federal Court Immigration Rules). |
| Although the Board could have explained its reasoning better, it can be seen from its decision that it gave greater weight to the documentary evidence on conditions in Kazakhstan than to the applicants" inferences as to why these incidents occurred. It was of course open to the Board to reason as it did, and there is nothing in the evidence as a whole to suggest that its finding on this point was unreasonable. |
[15] Also, in Vetoshkin (supra), Justice Rothstein states at pages 1 and 2:
| The only issue is whether the persecution took place because the applicant was a Russian in Chechnya. The only evidence relating to his nationality being the cause for his difficulties pertained to the first time his assailants approached his family in early 1990. The panel found that while there was evidence of continuing extortion and other criminal activity against the applicant, there was no further indication that it related to his Russian nationality. |
| The applicant operated a business and was a seaman with access to hard currency. The panel found it was for these reasons that he was subjected to extortion from his assailants. In this respect, the case is similar to Karpounin v. Minister of Employment and Immigration, 10 March 1995, IMM-7368-93 (F.C.T.D.), Jerome A.C.J. (not yet reported). At page 4 he states: |
| In the instant case, however, the facts are distinguishable from Aranguiz. Here, the Board held that the applicant"s difficulties did not flow from his refusal to assist the KGB, but rather "because, and only because, he had a lot of money". Consequently, it was not the applicant"s failure to state a political opinion that led to the Board"s rejection of his claim. The evidence before the Board did not allow it to arrive at the inference that the "ruling government of the country considers his conduct to be political". This was at the heart of its determination. Even if I did not agree with this finding, it was reasonably open to the Board to conclude as it did based on the totality of the evidence before it. |
| In this case, I too am of the view that it was open to the panel, on the evidence before it, to conclude that the applicant was not being persecuted for a ground within the Convention refugee definition. |
[16] In the present case, the applicants testified that the perpetrators were Kazakh men who discriminated against them because of their Russian nationality. The Board acknowledged that the applicants" alleged fear of persecution was based on nationality. However, the Board considered the incidents of extortion, threats and destruction of their business to which the applicants testified and held that they related to organized crime, rather than to their nationality. In her testimony, the applicant, Nathalia Alifanova, was asked the following question (Tribunal Record, page 239):
| Q. Les gens qui vous menaçaient et qui vous demandaient de l"argent, ce sont-ils identifiés à un groupe quelconque, politique, social, criminel pour les identifier? |
| R. Je pense que c"était plutôt un groupe criminel, mais ce sont mes propres conclusions. |
[17] In the present case, the applicants also challenge the Board"s reliance on the fact that the applicant"s husband was no longer experiencing problems in Kazakhstan in coming to its conclusion. The Minister submits that this fact shows that if the persecution complained of had been related to his nationality, her husband would have continued to experience problems despite the closure of his business.
[18] It would appear that the Board drew its own inference from these incidents and concluded that there was no link with the reasons under the Convention. The Board may draw its own inferences from the evidence (Hercules v. Canada (Solicitor General) [1993], F.C.J. 854 and Karaseva (supra). In light of the evidence which was before the Board, I am not convinced that the Board"s inferences and conclusions are unreasonable so as to permit me to interfere with its decision.
[19] The applicants further submit that the Board erred in making adverse findings of credibility based on the applicants" failure to claim refugee status in Holland or in the United States in the three months before arriving in Canada.
[20] The respondent submits that the Board was correct in drawing an adverse inference or conclusion with respect to the seriousness of the persecution feared by the applicants on the ground that they did not claim refugee status when the opportunity first arose in Holland and in the United States.
[21] In my view, the respondent"s submissions are supported by the case law. In Ccanto v. Canada (M.E.I.) [1994], F.C.J. 149, Justice Cullen states:
| As emphasized by counsel for the respondent, the Tribunal found the facts as described by the applicant to be implausible and proceeded to describe the trip to Italy, the stopover of four hours in Canada, the delay in applying for refugee status until the visitor"s visa had expired. Also the Tribunal found the applicant"s worry about his parents to be implausible because the family was able to travel to Italy on a visit and later returned home. There was scepticism about the applicant"s alleged concern about lack of safety in Italy. The facts are that the applicant did get a passport in Peru by paying a bribe, as he frankly admits is the custom, and he obtained the passport by attending in person. The Tribunal noticed this fact. Fear, therefor, is implausible because if the authorities were seeking him out, the last thing they would allow was the issuing of a passport so he could leave. Again, his passport was renewed later. |
| If the applicant had a subjective fear there was nothing in the evidence to support it, and this is demonstrated by his movements from one country to another without applying for refugee status in Italy and waiting several months before applying in Canada. |
[22] In Wey v. Canada (Secretary of State), [1995] F.C.J. 286 (1995) 91 F.T.R. 229 at 232 and 233, Justice Gibson states:
| On the second issue, the CRDD, having reviewed the evidence before it at some length, having analysed the applicant"s explanation for his failure to earlier claim Convention refugee status in any of the countries that he lived or sojourned in, and having briefly reviewed the then current conditions in Nigeria with respect to the situation of journalists, concluded that the applicant"s fear of persecution was not objectively well-founded. Once again, I am satisfied that this conclusion was reasonably open to the CRDD. |
| The last issue related to the applicant"s failure to earlier claim Convention refugee status in one of the countries in which he lived or sojourned after leaving Nigeria. The CRDD found the applicant"s explanation to be "not satisfactory". In Heer v. Minister of Employment and Immigration , Mr. Justice Heald, speaking for the Federal Court of Appeal, stated: |
| While being of the view that the Immigration Appeal Board may have placed undue emphasis on the importance of the delay in making the claim for refugee status herein, we agree with the Board, nevertheless, that such a circumstance is an important factor which the Board is entitled to consider in weighing a claim for refugee status. |
| Here, the CRDD did not, I conclude, place "undue emphasis" on the importance of the delay. It treated the delay as simply one factor in weighing the applicant"s claim. In doing so, I find it committed no reviewable error. |
[23] In the present case, the Board considered the applicant"s explanation as to why she did not claim refugee status in the United States, found that explanation unsatisfactory, and drew an adverse inference. The applicant, Nathalia Alifanova, explained that she did not claim refugee status in the United States because she wanted to come to Canada because criminality was lower in Canada and it was a beautiful country (See Tribunal Record, page 244). I am of the view that the Board did not place undue emphasis on the reasons for the delay the applicants took in claiming refugee status, but the Board was correct in commenting and concluding as it did. I am unable to find that the Board committed a reviewable error in concluding as it did..
[24] And lastly, the applicants argue, not forcefully, that the Board erred in failing to consider institutionalized discrimination faced by native Russians in Kazakhstan. The respondent submits that it is only in exceptional cases that institutionalized discrimination will amount to persecution within the meaning of the Convention, and refers the Court to the Handbook on Procedures and Criteria for Determining Refugee Status, paragraph 54 which reads:
| 54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who received less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities. |
[25] The respondent further submits that the applicants did not show that the institutionalized discrimination complained of had consequences of a substantially prejudicial nature. In the case at bar, no evidence was submitted to the Board relating to institutionalized discrimination and I am unable to find that the Board committed a reviewable error.
[26] I wish to comment on the submission of the applicants (or their counsel) that most acts of persecution are criminal in nature. I am satisfied that this statement is correct. Nevertheless, not all criminal acts can be considered as acts of persecution.
[27] This, I am satisfied, can be seen from the facts of the present case. Extortion is a criminal act. Threats of bodily harm is a criminal act. Because these criminal acts are made by Kazakhs against Russians does not make the act one of persecution.
CONCLUSION
[28] In my view, the Board did not make a reviewable error in making its decision that the applicants were not convention refugees. The Board"s inferences and conclusions were reasonable in light of the evidence and facts before it.
[29] The application for judicial review is denied.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
December 11, 1998