Date: 20020624
Docket: IMM-885-01
Neutral Citation: 2002 FCT 704
Ottawa, Ontario, this 24th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MAXIM TZVETKOV STEFANOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division (the "Refugee Division") dated February 1, 2001, in which the applicant Maxim Tzvetkov Stefanov was determined not to be a Convention refugee
Facts
[2] The applicant is a citizen of Bulgaria. He arrived in Canada in December 1999. He claims to have a well-founded fear of persecution based on his political opinion.
[3] In 1994, the applicant, a computer-systems designer, developed the hardware and software for a cash accounting system for use in stores, restaurants and nightclubs. This system automatically calculated the taxes which were due to be paid to the Bulgarian state. One of the applicant's largest clients was a company called M-Invest, a branch of Multi-group, the largest corporation in Bulgaria.
[4] In February 1997, the applicant was approached by the M-Invest nightclub manager for Eastern Bulgaria to change the program so that it would not report all of the sales to the government. He refused. He subsequently discovered that one of his best programmers, who had intimate knowledge of the system, had been hired away by another branch of Multi-group. It is alleged that this young programmer died in doubtful circumstances.
[5] In May 1998, the applicant was again approached by the same nightclub manager to change the system. This time, when he refused, he was allegedly threatened with the destruction of his business and was told "...You don't understand who we are, if you don't work for us, you don't work..." and that he should cooperate if he did not want to end up like his friend.
[6] Subsequently, in August 1998, the applicant discovered that another system, virtually identical to his, was being prepared by the branch of Multi-group that had hired away his programmer.
[7] In September of the same year, the Varna Police Investigation Department seized documents from the applicant's office on the basis that they were investigating a criminal matter relating to another branch of Multi-group. Following this police intervention, the applicant was approached again by the nightclub manager, but this time he was taken away, beaten, and threatened with violence to his family. This time the applicant said that he promised to help them.
[8] The applicant did not share this information with his family. Instead, he arranged to discuss the matter with an old friend who is the head of the Police Economic Issues Department. According to the applicant, his friend told him that people who ran Multi-group were very powerful and very rich, that they controlled everything, and that they could do anything that they wanted. He also told the applicant that he should not talk to anyone and should get out of the Bulgaria as soon as possible. The friend stated to the applicant that there was no one in Bulgaria who would be able to help him because Multi-group had people everywhere in the police and in the government, and that if he did not cooperate with them, he would just disappear.
[9] The applicant then made arrangements to get a business visa to the United States. In the meantime, the applicant says he did not refuse the Multi-group's request, but stalled them until his travel documents were in order. He left Bulgaria in February 1999 and claimed refugee status in Canada on December 2, 1999 in Lacolle, Quebec.
The Decision
[10] The Refugee Division determined the applicant not to be a Convention Refugee by concluding that he had not established a nexus to a Convention ground. The Refugee Division further held that even if the applicant had established a nexus to a Convention ground, his fear of persecution is not well founded since he has not rebutted the presumption of state protection. The Refugee Division found that there is not a reasonable chance or serious possibility that the claimant would face persecution for a Convention reason should he return to Bulgaria.
[11] The Refugee Division found the applicant to be generally credible although it did not accept his explanation that he was forced to renew the service contract with Multi-group due to his servicing agreement with the Ministry of Finance.
[12] The applicant left Bulgaria on February 11, 1999, and travelled through Italy to arrive in the United States on February 12, 1999. He remained in the United States for over 10 months and arrived in Canada on December 2, 1999, at which time he claimed refugee status. The Refugee Division drew a negative inference from the fact that the applicant left Bulgaria in February 1999 and delayed in making his refugee claim and further, did not make a claim in the United States, a signatory to the Convention.
[13] The Refugee Division found that the applicant's actions were ambiguous and found his fear to be "more a fear of prosecution for which he would be held responsible than an application of political opinion."
[14] The Refugee Division found that the applicant does not have a nexus to the Convention definition and that he was a victim of criminality and does not have a well-founded fear of persecution due to his political opinion or perceived political opinion.
[15] The Refugee Division further found that the applicant failed to provide clear and convincing evidence with respect to the state's inability to protect him.
Issues
(1) Did the Board err in its determination that there was no nexus between the harm experienced and the Convention ground of political opinion?
(2) Did the Board err in its determination that the Applicant had not provided clear and convincing proof that the protection was unavailable to him?
(3) Did the Board base its decision on erroneous findings of fact made in a perverse or capricious manner or without regard to the material before it?
Analysis
[16] A claimant will only fall within the Convention definition if there is a nexus to one of the five Convention grounds. Fearing criminal elements does not fall within the definition of Convention refugee grounds unless there is also a nexus to one of the five grounds. The Refugee Division found that the applicant did not establish any nexus to one of the Convention grounds in the present case.
[17] The Supreme Court of Canada in Canada (Attorney General) v. Ward [1993], 2 S.C.R. 689 at 746, defined a political opinion as a basis for a well-founded fear of persecution to be any opinion on any matter in which the machinery of state, government and policy may be engaged.
[18] The applicant argues that the CRDD erred in its interpretation of the meaning of "Political Opinion" and erred in its appreciation of the decision of the Federal Court of Appeal in Klinko v. Canada (M.C.I.) [2000] F.C.J. No. 228.
[19] In the Klinko decision, the Court of Appeal held that the opinion expressed by Mr. Klinko took the form of a denunciation of state officials corruption and that this denunciation of infractions committed by state officials led to reprisals against Mr. Klinko. In that case, the Court was satisfied that the widespread government corruption raised by the claimant's opinion was a "matter in which the machinery of state government, and policy may be engaged."
[20] The applicant argues that the CRDD erred in finding that the opinion expressed in Klinko was a political opinion because the opinion was expressed formally and therefore the opinion in this case is not a political opinion because the opinion was not expressed formally.
[21] I cannot accept the applicant's submission on this issue. The Refugee Division may have been more judicious in choosing its words when it indicated that the applicant did not denounce corruption "formerly". I am nevertheless of the view that the essence of the Refugee Division's finding on this issue is not that a formal denunciation is required but rather that the applicant's actions were neither motivated by nor perceived by the alleged persecutors as an expression of political opinion.
[22] What remains to be determined is whether this conclusion by the CRDD was reasonably open to it on the evidence.
[23] The evidence in this case establishes that the applicant fears criminal prosecution should he comply with the request to change the computer software he designed, so that the Multi-group could defraud the Bulgarian government of tax revenue. The applicant's own evidence is that his refusal to collaborate is based on that any changes would be found out and therefore it was impossible to effect the changes because of Ministry of Finance monitoring and because collaborating with criminals would have been illegal.
[24] The Refugee Division found that both the applicant's actions and motivations do not demonstrate a political position rooted in a political conviction.
[25] The Refugee Division determined that the applicant does not have a nexus to the Convention definition, that he is a victim of crime and does not have a well-founded fear of persecution due to his political opinion or perceived political opinion.
[26] The applicant argues that this is a case where the evidence supports a finding that the sole or primary reason for the persecution was his opposition to corruption and that there is therefore a nexus to the Convention. I do not agree. In my view, the evidence does not establish the applicant's opposition to corruption based on a political position which would engage the machinery of state government. The applicant's action on this isolated incident does not establish a political position rooted in political conviction.
[27] I am of the view that the Refugee Division reasonably concluded that both the applicant's actions and motivation do not demonstrate any political position. The Refugee Division examined the circumstances from the perspective of the persecutor and concluded that the applicant's persecutors were motivated not by the applicant's political opinion or perceived political opinion but rather by greed. I therefore find that the Refugee Division did not err in finding that the applicant had not established a nexus to a Convention ground.
State Protection
[28] The applicant submits that the Board's conclusion that the applicant has failed to provide clear and convincing evidence with respect to the state's inability to protect the applicant is perverse and capricious and has been made without regard to the documentary evidence properly before it. It is submitted that where there is documentary evidence which contradict the Board's conclusions the Board must address this evidence, having failed to do so, the Board made a reviewable error of law.
[29] The applicant's contention is that the Board gave more weight to the documents than the unsubstantiated advice of the friend, and relied on this factual error in determining the issue of availability of state protection.
[30] The applicant argues that the Refugee Division failed to consider the detailed documentary evidence with respect to the organization feared by the claimant and the extent to which it permeated the government. The Refugee Division, however, had before it other documentary evidence, the U.S. Department of State Report that stated that government control over the police was improving.
[31] It is not a reviewable error for the Refugee Division not to summarize all of the evidence introduced before it. It is also open to the Refugee Division to weigh and determine the cogency and reliability of evidence and, as it did in this instance, prefer documentary evidence to the unsubstantiated advice from the applicant's friend.
[32] The onus is on the applicant to establish the insufficiency of state protection. In this case, the applicant approached an "old friend" who is the head of the Police Economic Issues Department. At no time did the applicant report the circumstances that caused him to fear his oppressors to the Police. His explanation for not doing so is that "...how powerful Multi-group was and I was very frightened and worried."
[33] The evidence of the criminal organization's behaviour vis-à-vis the government authorities supports the contention that the organization does not believe the state to be impotent towards them or that its members could do what they wanted with impunity.
[34] I am of the view that the Refugee Division conclusion, that the applicant's burden of presenting clear and convincing proof of the state's inability to protect has not been met, to be reasonably open to it.
Errors of Fact and Law
[35] The applicant further contends that, given the Refugee Division finding that the applicant was generally a credible witness, it erred by failing to explain its adverse credibility findings.
[36] I do not agree with this contention. I am of the view that it is open to the Refugee Division to disbelieve a small aspect of the applicant's testimony while holding that he was generally a credible witness. I agree with the respondent that the Refugee Division did provide a reason for their disbelief of the applicant's explanation that he was forced to renew his service contract due to the servicing agreement with the Finance Ministry notably that this was inconsistent with the fact that Multi-group had previously cancelled his service contract. I find that the Refugee Division reasonably explained its adverse credibility findings in its reasons and committed no reviewable error in making such findings on the facts of this case.
[37] The applicant further argues that the Refugee Division erred by making a number of erroneous findings of fact unsupported by the evidence. These allegations are advanced in the applicant's written submissions at paragraphs 30-32 which I summarize, in part, as follows:
1. The panel erred in fact in stating "he renewed his contract with the organization, presumably believing he no longer had any problems." The applicant argues that this statement is speculation by the Refugee Division.
2. The panel erred in fact in stating "It was only after he talked to his friend that he came to believe the alleged pervasiveness of the criminal's influence in Bulgaria." The applicant attests that he was aware of the pervasiveness of Multi-group's influence before he talked to his friend and that this was the reason he sought advice from his friend rather than approaching the Police directly.
[38] I have carefully considered the applicant's submissions on these alleged errors of fact and conclude that even if I were to find that the errors of fact were indeed committed by the Refugee Division, they are not so central to the Refugee Division decision as to warrant the intervention of the Court, and are therefore not reviewable.
[39] Upon being satisfied that the applicant did not establish any nexus to convention grounds and upon considering all of the arguments advanced by the applicant, I am of the view that the Refugee Division has not committed an error that would warrant the intervention of this Court. The Refugee Division's findings and conclusion were reasonably open to it.
[40] For the above reasons this application for judicial review will be dismissed.
[41] The parties, having had the opportunity to raise a serious question of general importance as contemplated by section 83 of the Immigration Act, have not done so. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of decision of the Convention Refugee Determination Division dated February 1, 2001, is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-885-01
STYLE OF CAUSE: Maxim Tzvetkov Stefanov
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 19, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: June 24, 2002
APPEARANCES:
Helen Turner FOR PLAINTIFF / APPLICANT
Deborah Drukarsh FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Helen Turner FOR PLAINTIFF/APPLICANT
80 Richmond Street West
Toronto, Ontario M5H 2A4
Morris Rosenberg FOR DEFENDANT/RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6
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