Date: 20000620
Docket: IMM-3806-99
BETWEEN:
AZAMAT TUGAMBAYEV AND TATYANA TUGAMBAYEVA
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] I cannot find that the Board erred. The Board is entitled to seek to confine the evidence being given before it to the issue of nexus to a convention ground, before embarking on a broader consideration of an applicant"s claim. This is not a demonstration of bias, or grounds for concluding that a reasonable apprehension of bias existed. It is a judicious use of time.
[2] I agree that some of the phrasing used by the presiding Board member, when explaining the Board"s approach at the hearing, may have been overbroad:
| I guess, Counsel, I don"t know how you can establish that the claimants were perceived as Jewish and base it on some allegation which come[s] from the claimants themselves. |
This kind or oral statement made in the course of a hearing, however, must be assessed in the light of the hearing as a whole and the reasons given by the Board for its decision. The presiding member also said at the hearing:
| ... I haven"t stated that [for] every single allegation the claimants should prove - - provide corroborative evidence, although if there is such an external corroboration available and the claimant fails to present it, the panel is entitled to draw a negative inference on claimant"s credibility. |
| Similarly we are not discounting the probative value that should be accorded to the claimant"s testimony, providing that testimony should be directly relevant to the issues before us. |
| The claimants have been afforded opportunity to present direct evidence and that will be accorded due weight. But it should be directly related to the issue before us, which is claimant"s ethnic identity. |
| ... I believe that - that"s open to the panel and we leave it open to ourselves that at any point if we are satisfied with the identity, then we will move on to hear the rest of the story. |
| But I believe at this stage we are going to deal with that question of identity and perception. |
| Counsel: Then do I understand you do not wish me to go into any of the details from paragraph 4 onwards? |
| [Presiding Member]: Unless if it relates to the question of identity or perception. |
| Counsel: As it certainly relates to perception, I will elicit evidence. |
| [Presiding Member]: ... but I fail to understand how the detail of how I was beaten would be related to the question of perception and identity. |
| But of course, how were you identified and how would you be identified as Jewish or members of any minority group, I guess that would be relevant to the question at hand. |
[3] I note that the Board"s reason for finding that the applicants had not demonstrated that ethnicity or religion was the reason for their physical mistreatment in Kazakhstan is based on an acceptance of some of the oral evidence that the applicants gave. Thus the Board did not reject the evidence merely because it only came orally from the applicants themselves.
[4] The applicants are mother and son, Tatyana and Azamat Tugambayeva, citizens of Kazakhstan. Tatyana"s mother was Jewish or half-Jewish; her father was half-Kazaki and half-Uiger. Tatyana married a Kazaki man; they divorced several years later, after Azamat was born. In 1994, Amzat attended the Almaty Humanitarian University. He was studying to be a lawyer. Both applicants claim that in 1997, when filling out a form for the practical training of his study at the university, he identified his mother"s nationality as Jewish. As a result of this, the son claims that his practical training at the university was cancelled and the persecution of himself and his mother as Jews began.
[5] The Board did not accept the evidence that the son had filled out the form as he indicated he had. The Board did not accept the applicants" assertions that physical attacks had ensued as a result of their perceived Jewish ethnicity.
[6] The Board noted that the mother, Tatyana, did not speak Hebrew, knew little about Jewish traditions, did not have a Jewish name, had listed her religion as "atheist" on her PIF, had no personal documents (such as a passport or school graduation certificate) from before the collapse of the Soviet Union that described her as Jewish (even though it was known that under the former Soviet Union official documents included such description). The Board noted that Tatyana provided one document, a duplicate birth certificate issued in Kazakhstan in 1997, that described her as Jewish, and that it was widely recognized that thousands of fake documents of this type were being issued. Tatyana did not provide the Board with a copy of her sister"s birth certificate, which might have corroborated the assertion that the 1997 duplicate was an accurate reproduction of the applicant"s original certificate, even though she was invited to do so by the Board. The Board noted that Tatyana did not provide a reference letter from any Jewish organization in Canada or Kazakhstan to confirm she was Jewish. She married a second husband in Canada who asserted that marrying a Jewish wife was important to him, but the marriage took place in City Hall before someone whose "clergy denomination" was listed as "Orthodox".
[7] The Board noted that while the son was able to give some evidence about Jewish holidays, his testimony appeared to be rehearsed and memorized. He was unable to recount any significant Jewish rituals associated with his grandmother"s funeral. He was unable to recall the name of the Jewish cemetery in which she was allegedly buried. As noted above, the Board did not accept his evidence that he had disclosed his Jewish ethnicity on a law school form in 1997:
| When asked how he was able to hide his ethnicity during the previous school admissions and what was different in the forms that he filled out in 1997, the male claimant was unable to offer any explanation. Further, it does not seem plausible that the claimant would voluntarily identify himself as a Jew in an application form in 1997, while all his personal documents identify him as Kazakh. When asked why the male claimant, contrary to his personal documents that identify him and his parents as Kazakh, would voluntarily disclose his mother"s alleged Jewish roots, the male claimant indicated that he was not aware of the consequences of such admission. The panel disagrees; in the panel"s view, it is implausible that someone who has lived his entire life in the former Soviet Union would not be aware of the consequences of disclosing his Jewish background. It is especially so, given that the claimant alleges that his grandmother was Jewish and they were not able to practise their religion freely and only celebrated Jewish holidays secretly at home. |
[8] The Board noted that the son: carries a Kazakh name; all his identity documents describe him as Kazakh; his birth certificate lists his parents as Kazakh; he looks more Kazakh than Jewish; he listed his religion on his PIF as atheist.
[9] A review of the record does not reveal that bias, or a reasonable apprehension of bias existed. A review of the record does not reveal that there was any error of law or misconstruction of the evidence by the Board. The Board weighed the evidence before it, as it is required to do, and based its conclusion thereon.
[10] Accordingly, the application for judicial review was dismissed.
"B. Reed"
J.F.C.C.
Toronto, Ontario
June 20, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: AZAMAT TUGAMBAYEV AND TATYANA TUGAMBAYEVA |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, JUNE 20, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: TUESDAY, JUNE 20, 2000
APPEARANCES: Mr. Michael Crane
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Michael Crane
Barrister & Solicitor
166 Pearl Street
Suite 200
Toronto, Ontario
M5H 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000620
Docket: IMM-3806-99
Between:
| AZAMAT TUGAMBAYEV AND TATYANA TUGAMBAYEVA |
Applicants
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
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