Date: 20021209
Docket: IMM-61-02
Neutral citation: 2002 FCT 1277
BETWEEN:
IGOR DUDAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SNIDER, J.
[1] The Applicant, Igor Dudar (the "Applicant"), seeks a judicial review of the decision made by M. Freilich and Arthur Kruger of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"), dated November 7, 2001. The Board determined that the Applicant was not a Convention refugee.
[2] The Applicant seeks an order quashing the decision of the Board and remitting the matter for consideration by a different panel of the Refugee Protection Division.
Facts
[3] The Applicant is a 36 year old male citizen of Kazakhstan. He claims a well-founded fear of persecution in Kazakhstan on the grounds of his Russian ethnicity and his fear of Kazakh Nationalists. He claims that, should he return to Kazakhstan, he will continue to be persecuted by Kazhak nationalist members of the Azat organization.
[4] According to the Applicant's Personal Information Form ("PIF") and other information on the record of the Board, the Applicant has been the victim, on several occasions, of beatings by Kazakh nationals. In the more serious cases, the Applicant received medical treatment for his injuries. The Applicant has also received threatening phone calls and little assistance from the police.
[5] After a hearing before the Board, the Applicant's claim was rejected.
[6] In its negative reasons for the decision, the Board stated that the credibility and probative value of the Applicant's testimony must be evaluated in light of what is generally known about the conditions in Kazakhstan, as well as the experiences of similarly situated persons. The Board found that the Applicant's description of Azat, the alleged agents of persecution, was inconsistent with the documentary evidence regarding the nature of that group.
[7] The Board also found that the preponderance of the documentary evidence did not support the allegation that members of minorities, including Russians, are at risk of physical attack in Kazakhstan. The Board specifically referred to the 2001 U.S. Department of State Report on Kazakhstan and the October 4, 1999 Response to Information Request. The Board accepted that there may be a level of discrimination and pressure against minorities because of lack of certainty for the future and for economic reasons. However, the Board found that this discrimination did not amount to persecution.
[8] With respect to the medical reports submitted by the Applicant, the Board stated:
Given that the country conditions do not support the claimant's contentions of physical attacks on Russians by Kazakhs, the panel believes that the medical reports have no relevance to claimant's well-founded fear of persecution.
[9] The Board ultimately preferred the documentary evidence, which was from a wide variety of reliable, reputable and independent sources, to that of the Applicant. The Board concluded that the absence of evidence in the country condition documentation regarding physical abuse against ethnic Russians impugned the Applicant's credibility. As a result, the Board found that the Applicant's claim was not objectively well-founded and denied his claim on that basis.
Issues
[10] I have identified the critical issues as follows:
1. What is the standard of review?
2. Did the Board misunderstand or misapply the Convention refugee test in its determination that the Applicant was not a Convention refugee?
3. Were the Board's findings regarding the physical attacks on ethnic Russians in Kazakhstan supported by the evidence?
4. Was the Board correct in giving no weight to the PIFs other Convention refugee claimants as evidence of similarly situated persons?
Applicant's Submissions
[11] The Applicant submits that the Board committed serious errors in its decision. During oral submissions, the Applicant focussed on three major concerns:
1. The Board placed too much emphasis on physical attacks thereby misunderstanding or misapplying the Convention refugee determination test;
2. In concluding that there was no evidence of physical attacks on ethnic Russians by Kazhak nationals, the Board ignored evidence of physical attacks contained in the submitted documentation; and
3. In ignoring the medical and other evidence submitted by the Applicant, the Board did not assess the claim of this particular Applicant.
[12] With respect to the first point, the Applicant submits that persecution encompasses more than the risk of physical attack. In support of this submission, the Applicant cited two decisions of the Federal Court of Appeal: Amayo v. Minister of Employment and Immigration, [1982] 1 F.C. 520 and Rajudeen v. Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 601 (QL). In order to meet the definition of a Convention refugee, set out in s. 2(1) of the Immigration Act, R.S.C. 1985 c. I-2, the Applicant needs to demonstrate a well-founded fear of persecution, not that he had been subjected to attacks in the past. In support of this submission, the Applicant cites Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), Amayo, supra, and Rajudeen,supra.
[13] In particular, the Applicant pointed to the following words of the Board in its decision:
The panel accepts that there may exist some isolated incidents, but as indicated above, there is insufficient documentary evidence to support the claimant's allegation that there is a serious possibility that he would be attacked in a systematic and persistent manner by the Kazakh Nationalists.
[14] The Applicant described this reference and others as examples of where "some of the language was the right language" or where the Board "hit the right notes". However, in his submission, this is not the correct test.
[15] With respect to evidence of physical attacks, the Applicant pointed out a number of instances in the documentary evidence of physical attacks against ethnic Russians in Kazakhstan and submitted that the Board erred in ignoring the evidence of those attacks. In the Board's reasons, there were inconsistent statements regarding the incidence of physical attacks on ethnic Russians. In particular, the Applicant pointed out the paragraph that reads as follows:
It is important to note that there is no documentary evidence to support the physical attacks on Russians in Kazakhstan. The preponderance of the documentary evidence does not support the allegation that members of minorities, including Russians, are at risk of physical attack in Kazakhstan. (emphasis added)
[16] The Applicant also submits that the Board used its conclusion on the lack of evidence of physical attacks against Russians to support its conclusions regarding the credibility of other allegations made by the Applicant. For example, the Board found the medical reports were not relevant to the Applicant's claim because the country documents did not support the Applicant's contentions of physical attacks on Russians. The Applicant submits that this reasoning is circular. The Applicant also submits that the panel erred in acknowledging that some isolated incidents of physical attacks may occur, yet failed to explain why this particular Applicant could not have been the victim of such a physical attack, despite medical evidence to the contrary.
[17] Finally, the Applicant submitted that the Board failed to acknowledge the experiences of similarly situated persons that were submitted to the Board by the Applicant. The evidence in this regard consisted of the PIFs of a number of other ethnic Russian who were successful in their refugee claims. In oral submissions, the Applicant acknowledged that this was not his strongest argument.
Respondent's Submissions
[18] The Respondent submitted that the Board did not misunderstand or misapply the definition of Convention refugee or persecution by limiting its analysis to whether the Applicant would be physically targeted if he were to return to Kazakhstan. The Board's reasons indicate that the Board did not restrict its analysis in this manner. The Respondent pointed out that the main allegations of the Applicant, as reflected in his PIF, were of the numerous physical attacks that he had suffered. The reasons were guided by the Applicant's submissions.
[19] The Respondent also submitted that the Board did not conclude that there was no evidence of physical attacks against ethnic Russians in Kazakhstan, but rather that the preponderance of the documentary evidence did not support the allegations that members of minorities are at risk of physical attack in Kazakhstan. In addition, the examples cited by the Applicant did not support the Applicant's submissions on this issue.
[20] The Respondent argued that there is no evidence that the Board failed to consider the PIFs of other similarly situated ethnic Russians. The Board was not bound by the findings of fact made by other Boards. It was open to the Board to prefer the documentary evidence over that of the Applicant. As a result, the Board did not commit a reviewable error.
Analysis
Issue #1: What is the Standard of Review?
[21] In order for a claimant to successfully claim Convention refugee status in Canada, the evidence must establish that the claimant has good grounds for fearing persecution in the future, should that person be returned his or her country of origin. Thus, the definition of Convention refugee has both a subjective and an objective component. The subjective component relates to the existence of persecution in the mind of the person claiming refugee status. The objective component requires that the Applicant's fear be evaluated objectively to determine if there is a valid basis for that fear (Rajudeen, supra). When assessing the objective aspect of this fear, the Board must consider all the evidence it finds credible (Lai v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 826 (C.A.) (QL)).
[22] The appropriate standard of review of decisions of the Board on the objective component of the Convention refugee definition is patent unreasonableness (Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (T.D.) (QL)). Accordingly, the Court should intervene only where the reasons are not in accordance with the evidence or where they are clearly illogical or irrational.
Issue #2: Did the Board misunderstand or misapply the Convention refugee test in its determination that the Applicant was not a Convention refugee?
[23] Although the reasons of the Board included extensive discussion of physical attacks, in this case, for the reasons that follow, I do not believe that the Board misinterpreted the Convention refugee test.
[24] The Board must determine whether the Applicant had a well-founded fear of persecution, not a fear of physical attacks. Although persecution is not defined in the Immigration Act or its regulations, the definition of this term has been addressed by this Court. Generally, persecution means "harassment or affliction with repeated acts of cruelty or annoyance; afflicting persistently or punishing because of particular opinions or adherence to a particular creed, mode of worship or political beliefs or activities" (Ammery v. Canada (Secretary of State), [1994] F.C.J. No. 676 at paragraph 9 (T.D.) (QL)). The Board will err in requiring physical harm or mistreatment as an element of persecution (Ammery, supra; Amayo, supra).
[25] Although the Board's reasons make numerous references to physical attacks, there are also references throughout the decision to "persecution". Given that the Applicant's own submissions were predominantly concerned with the physical attacks on him and their aftermath, it was reasonable and responsive to the case before it for the Board to focus considerable attention on the risk of physical attacks. It is clear, when the decision is read as a whole, that the Board was not limiting its examination to the physical attacks, nor was it equating persecution with physical attacks or requiring physical harm as an element of persecution.
[26] Given the focus of the Board on the evidence and submissions of the Applicant, it is also clear that the Board did not, as argued by the Applicant, fail to assess the specific claim of the Applicant.
Issue #3: Were the Board's findings regarding the physical attacks on ethnic Russians in Kazakhstan supported by the evidence?
[27] This issue relates to the Board's conclusions in respect of the objective element of the refugee determination test. In my view, the findings of the Board were open to it on the evidence before it.
[28] There are a number of ways for an Applicant to establish the objective basis of his claim. Justice LaForest, writing for the Supreme Court of Canada in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689 at paragraph 50 recognized, that evidence of similarly situated individuals and of past persecution can be used to establish the objective basis of persecution. In Rajudeen, supra, the Federal Court of Appeal held that evidence of past persecution is one of the most effective means of showing that a fear of future persecution is objectively well-founded. The objective basis can also be established through the documentary evidence, including country condition information and the sworn testimony of the Applicant (Okyere-Akosah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 411 (C.A.) (QL)).
[29] The main basis for the Board's conclusion with respect to the objective element was the lack of documentary evidence in the country condition material supporting the allegation that ethnic Russians are at risk of persecution in Kazakhstan. In reaching this conclusion, the Board considered but gave little or no weight to the Applicant's sworn testimony, his PIF, the medical documentation and the PIFs of similarly situated individuals who had successfully claimed Convention refugee status.
[30] The Board is entitled to prefer the documentary evidence over that of the Applicant, but must give reasons in clear and unmistakable terms if it chooses to do so (Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL)).
[31] The Board's reasons for preferring the documentary evidence over that of the Applicant were as follows:
The panel prefers the documentary evidence to that of the claimant. The documentary evidence is from a wide variety of sources, reliable, reputable, and independent, with no interest in the outcome of a particular claim. In the panel's opinion the absence of evidence in the country condition documentation with regard to physical abuse against ethnic Russians impugns the claimant's credibility. Given the vast presence of the media and organizations reporting on human rights abuses, the Board, in its ongoing search of country conditions, would be informed if there was continual ongoing persecution against ethnic Russians by "Azat" members.
[32] Although the Applicant drew my attention to a few isolated references in the documentary evidence that referred to incidents of ethnic minorities being persecuted in Kazakhstan, I believe that, taken as a whole, the evidence is consistent with the finding that there was a "preponderance of documentary evidence" to support the conclusion of the Board. The Board is an expert tribunal to whom a high degree of deference should be shown. The weight to be given to the evidence is a matter within the discretion of the Board. In my view, it was open to the Board to prefer the overall country condition documentary evidence over the specific claims of the Applicant. When read as a whole, the reasons reflect that the Board was aware of the documentary evidence that made some references to violence against ethnic Russians and appropriately weighed that evidence into its decision.
[33] In assessing whether the evidence supported a finding, on an objective basis, that ethnic Russians were at risk, the Applicant asserts that it should have considered the medical reports of the Applicant. I believe that the Board dealt fairly with this evidence in its reasons. The documentary evidence consistently failed to support the applicant's description of conditions in Kazakhstan. Accordingly, it was logical and not unreasonable for the Board to discount the testimony of the attacks on the Applicant and the resultant medical treatment for purposes of the objective assessment. This conclusion, although poorly worded in the Board's decision, was not, in my view, a finding that the Board did not believe that the Applicant had suffered those attacks.
Issue #4: Was the Board correct in giving no weight to the PIFs other Convention refugee claimants as evidence of similarly situated persons?
[34] The Board was, in my view, correct in giving little or no weight to the PIFs of other refugee claimants.
[35] There was no evidence presented that explained the context in which these refugee claims were granted. Nor was there any evidence that the Applicant in this case was personally connected with or aware of the persons named in those PIFs.
[36] Further, a Board such as this is not bound by precedent and is, as a quasi-judicial administrative tribunal, required to exercise its discretion in every case and must not fetter its discretion by giving undue weight to irrelevant evidence. Some guidance as to how tribunal panels may use prior decisions was recently given by the Federal Court of Appeal in Koroz v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1593 (QL), where it affirmed that the Board may adopt the same reasoning as another panel faced with the same documentary evidence on the issue of internal flight alternative. Linden J.A., speaking for the Court at paragraph 3, stated that:
This does not mean that a panel can blindly adopt factual findings of other panels. Where the question is one of fact-finding concerning general country conditions at approximately the same time, however, a panel may rely on the reasoning of an earlier panel on the same documentary evidence. Where the analysis of one panel on the same evidence on such a question commends itself to a later panel, there is no legal bar to the second panel relying on it.
[37] In this case, there was no reasoning or analysis presented with the PIFs upon which the Board could have relied.
Conclusion
[38] For these reasons, I am not satisfied that the Court should intervene in the decision of the Board. The Board's reasons are not illogical or irrational and are supported by the evidence. I would dismiss this application.
"Judith A. Snider"
JUDGE
OTTAWA, ONTARIO
December 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-61-02
STYLE OF CAUSE: Igor Dudar v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 5, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE SNIDER
DATED: December 9, 2002
APPEARANCES:
Mr. Arthur I. Yallenfor the Applicant
Mr. Jeremiah Eastmanfor the Respondent
SOLICITORS ON THE RECORD:
Yallen Associatesfor the Applicant
Toronto, Ontario
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada
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