Date: 19971126
Docket: IMM-4683-96
BETWEEN:
Tatiana KARASEVA
Elena KARASEVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
[1] The applicants have applied for judicial review of a decision of the Refugee Division that denied them Convention refugee status.
FACTS
[2] The applicants (a mother and daughter) are of Russian nationality but are citizens of Kazakhstan. They claim to have been persecuted by Kazakhs because of their Russian nationality.
[3] At the hearing before the Refugee Division, the applicants testified regarding incidents of persecution as described in their PIFs. These incidents are as follows:
Incidents involving Elena Karaseva (the daughter)
[4] On February 8, 1995, Elena Karaseva was attacked by a group of young Kazakhs at her place of work. She did not complain to the police because, she explained, the police force consists primarily of Kazakhs.
[5] On March 16, 1995, outside a discothèque, she was assaulted by Kazakhs. Her fiancé intervened and was stabbed to death. She was questioned by the police following this incident but does not know whether her attackers were arrested.
Incidents involving Tatiana Karaseva (the mother)
[6] On May 15, 1994, on exiting the Russian Orthodox church after Sunday mass, Tatiana Karaseva and those with her were attacked by a group of Kazakhs armed with clubs. The attackers scattered on seeing the police arrive. However, according to Mrs. Karaseva, the police chose not to pursue the Kazakhs.
[7] On November 26, 1994, Mrs. Karaseva and her daughter were forced off a bus by four young Kazakhs.
[8] On January 9, 1995, while looking for a way to get home after work, Mrs. Karaseva and a co-worker were abducted by Kazakhs. The police questioned Mrs. Karaseva but did not investigate further because she could not remember the vehicle's licence plate number.
THE DECISION
[9] The Board found that the applicants had not discharged the burden of proving a well-founded fear of persecution.
[10] It found that each of the incidents described by the applicants resembles a crime more than an act of persecution as defined in the Convention.
[11] The Board observed that the police were involved in each of the incidents. It referred to the principle stated by the Court in M.E.I. v. Villafranca (1992), 18 Imm. L.R. 2(d) 130, that protective agencies of the State have an obligation to protect but cannot ensure the result.
[12] Finally, the Board quoted an excerpt from one of the documents on Kazhakstan adduced in evidence at the hearing in order to justify its finding that the applicants were not in danger of persecution should they return to that country.
APPLICANTS' ARGUMENT - The applicants submit three grounds in support of their application for judicial review:
The Board erred in deciding that the incidents did not constitute persecution
[13] First, the applicants submit that since the Board did not question their testimony, it should be found to be credible.
[14] Second, the applicants cite a number of excerpts from the PIFs that show their Russian ethnicity to be at the origin of each of the incidents mentioned supra.
[15] According to the applicants, it follows that the acts constitute persecution, not merely crimes.
The Board erred in finding that the applicants could have availed themselves of the protection of the State.
[16] The applicants argue that the Board did not apply the proper test in assessing the protection provided by Kazhakstan for its citizens of Russian origin. It applied the test from Canada (Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334, that the protection need not be perfect. According to the applicants, the Board should have applied a stricter test developed by La Forest J. in Ward, [1993] 2 S.C.R. 689.
The Board erred in finding that the applicants could have gone to live in northern Kazakhstan.
ANALYSIS
Persecution or crime?
[17] The Board made the following finding at page 3 of its decision:
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[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. |
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[18] 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):
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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. |
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[19] 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).
[20] 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.
[21] The evidence that was before the members of the Board could reasonably allow the members of the Board to conclude that the two major incidents complained of by both applicants were criminal in nature. The two major incidents consist of the attach on Tatiana Karaseva on January 9, 1995 and the incident of March 16, 1995 wherein Elena Karaseva's fiancé was brutally attacked and killed. Tatiana Karaseva describes what took place on January 9, 1995 in her Personal Information Form (PIF) found at page 26 and 27 of the Board's file. Without reproducing what she states, I am satisfied that the Board had more than sufficient reason to conclude that the incident was a criminal Act.
[22] The same applies to the incident of March 16, 1995 involving Elena Karaseva. She was at a discothèque with her fiancé where there were both Russians and young Kazakhs and Elena's fiancé was attacked. Elena herself was not attacked. I am satisfied that it was reasonable for the Board to have concluded that this incident was a criminal attack and not a racist attack.
The Board erred in finding that the applicants could have availed themselves of the protection of the State.
[23] The applicants claim that the Board applied the test in M.E.I. v. Villafranca (supra) which, the applicants argue, was overruled by Ward (supra). The Board found that the police have an obligation to provide the means of protection but cannot always ensure the result. In other words, the protection provided by the State does not have to be perfect. The applicants argue that Ward (supra) stands for the proposition that it is the efficiency of the protection which is the important consideration, while in Villafranca (supra) the court stated that the intervention of the police is sufficient to invoke the protection of the state.
[24] In support of their claim, the applicants argue that, like other Russians in Kazakhstan, they were convinced that the police would not help them. In addition, the applicants claim that the Kazakh police were known to be corrupt and they cite documentary evidence in that regard.
[25] The respondent replies that Ward also stands for the proposition that a state is presumed to be capable of protecting its citizens and that clear and convincing evidence must be presented to rebut that presumption. The respondent argues that such evidence was not presented. First, the respondent notes that Elena Karaseva did not tell the police of the incident on February 8, 1995. Second, the respondent states that the police did get involved following the March 16, 1995 incident. In that investigation, Elena Karaseva could only provide information on the colour of the criminals' jacket and pants. The respondent cites the decision in Garmash v. M.E.I., 93 F.T.R. 242 where the court stated that there was nothing the police could do because there was no evidence that the applicant had given the police sufficient information to cause an arrest to take place.
[26] Furthermore, the respondent mentions that Elena Karaseva did not have a copy of the police report. In addition, Ms. Karaseva did not know if the incident was reported in the newspapers or if the perpetrators were arrested. Concerning the January 9, 1995 incident involving Tatiana Karaseva, the respondent contended that although the applicant argued that the police did not do what was necessary, she failed to state what they could have done.
[27] Finally, the respondent contends that the decision in Ward did not overrule Villafranca. The respondent cites the decision in Starikov v. M.C.I., IMM-1200-95, 10 April 1996 (F.C.T.D.) where the court clearly considered that the principles in Ward and Villafranca can apply simultaneously.
[28] After considering the evidence, I am satisfied that the applicants have not provided "clear and convincing proof" that the State would not be able to protect them. It does not appear that the applicants could provide the police with sufficient evidence to mount a successful investigation. The police must be given adequate tools in order to investigate a crime and information as to the criminals is a key tool. Furthermore, from a reading of the transcript, I am satisfied the applicants did not take a concerned interest in the reporting or findings of the police.
The Board erred in finding that the applicants could have gone to live in northern Kazakhstan.
[29] The Board considered documentary proof which stated that northern Kazakhstan is primarily populated by people of Russian descent. The applicants claim that it is an incorrect application of the principle of internal refuge to state that the applicants could live there simply because the majority of the population is Russian. The applicants claim that they do not have family or friends in northern Kazakhstan and that they have always lived near the capital, Alma-Ata.
[30] Given that the Board found that the applicants were not suffering from persecution in southern Kazakhstan, this argument is superfluous. However, even if the applicants did have a valid reason to flee southern Kazakhstan, they have provided no evidence in support of their claim that they could not live in northern Kazakhstan. The applicants merely state that they must live near the capital and that they have no friends or family elsewhere. That can hardly be sufficient for the Board to find on a balance of probabilities that there is a serious possibility that the claimant would be persecuted in northern Kazakhstan as is required by the decision in Rasaratnam v. M.E.I., A-382-90, 30 April 1990 (F.C.A.). I find that this ground is devoid of merit.
CONCLUSION
[31] As a result of the above findings, I am satisfied the decision of the Board is not subject to judicial review as I am satisfied the Board's decision is reasonable and based on the law and evidence before it.
[32] Neither party had a question to be certified.
[33] The application for judicial review is denied.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
November 26, 1997
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4683-96
STYLE OF CAUSE: TATIANA KARASEVA ET AL. v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 28, 1997
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE TEITELBAUM
DATED: NOVEMBER 26, 1997
APPEARANCES:
EVELINE FISET FOR THE APPLICANT
MICHEL SYNNOTT FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET FOR THE APPLICANT
MONTRÉAL, QUEBEC
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
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