Date: 19981102
Docket: IMM-5472-97
Between:
VIATCHESLAV FILIMONOV
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for leave for judicial review filed pursuant to subsection 82.1(1) of the Immigration Act in opposition to a decision by the Refugee Division rendered on December 9, 1997 in file M97-01881.
[2] The tribunal ruled that the applicant was not a Convention refugee, although in its opinion the applicant was credible.
[3] The case fundamentally involves an individual who is a merchant in Russia and a victim of extortion.
[4] The tribunal held that the applicant was a merchant and that merchants who were victims of extortion in Russia did not constitute a social group as defined by the cases, in particular Ward v. Attorney General of Canada, [1993] 2 S.C.R. 689.
[5] Ward identified three possible classes of social groups, at page 739:
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(1) groups defined by an innate or unchangeable characteristic; |
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(2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and |
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(3) groups associated by a former voluntary status, unalterable due to its historical permanence. |
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The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation, while the second would encompass, for example, human rights activists. The third branch is included more because of historical intentions, although it is also relevant to the anti-discrimination influences, in that one"s past is an immutable part of the person. |
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[6] The applicant"s counsel argues in her submissions that social group may be defined in several ways and she noted what the tribunal had suggested might be a social group: "[Translation ] former merchant[s] who refused to pay off the organized group (the mafia)" or "[Translation ] persons who have refused to collaborate with organized groups" or "[Translation ] persons who have complained to the authorities about mistreatment suffered by [at the hands of?] criminal groups".
[7] The applicant"s counsel also suggested that the comment by La Forest J., dissenting, in Chan v. Minister of Employment and Immigration , [1995] 3 S.C.R. 593, clarified the definition of social group previously determined in Ward, in particular at page 642:
As I believed apparent at the time of that decision, only a working rule was enunciated in Ward, not an unyielding deterministic approach to resolving whether a refugee claimant could be classified within a particular social group. The "general underlying themes of the defence of human rights and anti-discrimination" (p. 739) were to remain the paramount consideration in determining a claimant"s membership in any particular social group....
It is still necessary under the second category to consider whether an association exists that is so fundamental to members" human dignity that they should not be required to forsake it....
...the primary focus of refugee law: the assurance that basic human rights are not fundamentally violated without international recourse.
...a refugee alleging membership in a particular social group does not have to be in voluntary association with other persons similar to him- or herself.
[8] La Forest J. goes on to quote Professor Audrey Macklin, in a case comment on the judgment in Ward:1
As long as perpetrators of persecution treat people with a shared attribute as comprising a group by virtue of that common characteristic, whether individuals so identified would choose to see themselves as united in any meaningful sense has little impact.
[9] The applicant"s counsel also filed several authoritative documents, including The Law of Refugee Status ,2 Immigration Law and Practice3 and The Refugee in International Law,4 as well as the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.
[10] Counsel also argues in her submissions that the applicant submitted his complaint to the local authorities, which resulted in reprisals, and that this could be considered a political opinion by these authorities since it directly implicates them.
[11] The applicant"s counsel argues that in challenging the system established by criminal groups working in tacit collaboration with the authorities, the applicant was criticizing the Russian authorities, who could thereby attribute a political opinion to him.
[12] In rebuttal, the respondent"s counsel argues, as an initial point, that La Forest J."s comments in Chan do not contradict the principles laid down in Ward. I agree with this.
[13] Respondent"s counsel argues, first, that the Refugee Division is in the best position to determine whether the events alleged by a claimant are related to one of the Convention grounds; it is purely a question of fact.
[14] In reference to both Ward and Johnny Edgar Orellana Leon et al. v. The Minister of Citizenship and Immigration (IMM-3520-94, September 19, 1995), Jerome A.C.J. states, at page 5 of the latter decision:
I am also satisfied that the Refugee Division reasonably and properly concluded that the applicants" story, even if true, did not disclose a nexus to any ground set out in the Convention refugee definition. A determination with respect to "nexus" is largely a question of fact and therefore entirely within the tribunal"s expertise to make. Here, Mr. Leon was not targeted because he was a union member per se, but rather because his efforts to protect his father"s economic interest could have resulted in exposing alleged corruption. The tribunal"s categorization of the particular social group to which the applicants belonged therefore, namely "victims of fraudulent actions or organized crime", was proper in light of the evidence.
[15] Respondent"s counsel submitted abundant case law to support the view that it was reasonable for the tribunal to find that the extortion to which a person might be subjected is unrelated to any of the grounds in the Convention. She referred the court to Mortera et al. v. Minister of Employment and Immigration (1993), 71 F.T.R. 237, in which McKeown J. states:
In my view, in developing the categories, the court rejected a broad definition of a particular social group comprising basically any alliance of individuals who have a common objective or an interpretation which characterizes a social group merely by virtue of their common victimization as the objects of persecution.
[16] Likewise, in Wong and Ku v. Canada (1993), 70 F.T.R. 170, McKeown J. states:
Contrary to the applicant"s submissions, I agree with the Board that "the group of persons comprised of private businesspersons in the PRC who fear extortion by venal officials" is so diverse that it cannot reasonably be categorized as a particular social group as that phrase is jurisprudentially understood.
[17] Similarly, in Karpounin v. Minister of Employment and Immigration (1995), 92 F.T.R. 219, Jerome A.C.J. states:
The present state of the law and the unique facts of this case do not dictate, as submitted by the applicant, that his refusal to bow to extortion puts him in a particular social group defined by innate or unchangeable characteristics, nor that his status as a financially successful person in the Ukraine, places him in a particular social group defined by voluntary association "for reasons so fundamental to their human dignity they should not be forced to forsake the association".
[18] Respondent"s counsel also filed a number of cases displaying an analogy between the case at bar and cases of personal revenge in which the claimants were not considered Convention refugees.
[19] As to the submission that the complaint to the police was itself the expression of a political opinion, having regard to all the circumstances, I must reject this argument at this stage.
[20] The tribunal had the necessary jurisdiction to assess the facts on the basis of the applicant"s claim, and it has not been demonstrated to my satisfaction that this assessment was made unreasonably.
[21] I conclude, therefore, that the applicant was unable to prove that he fell within the definition of a Convention refugee, and in particular that he had suffered persecution related to one of the grounds under the Convention.
[22] The tribunal committed no error of fact or of law that might warrant the intervention of this Court.
[23] Wherefore, the court dismisses the application for judicial review.
[24] As neither counsel recommended certification of a question, no question will be certified.
OTTAWA, ONTARIO
NOVEMBER 2, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: VIATCHESLAV FILIMONOV v. |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: October 21, 1998 |
REASONS FOR JUDGMENT OF BLAIS J.
APPEARANCES:
Stéphanie Valois FOR THE APPLICANT
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stéphanie Valois FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 "Canada (Attorney-General) v. Ward: A Review Essay", [1994] 6 Int"l J. of Refugee L. 362.
2 James Hathaway (Butterworths, 1991).
3 Lorne Waldman (Butterworths).
4 Guy Goodwin-Gill (Oxford: Clarendon Press, 1996).
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