Date: 20020117
Docket: IMM-3178-00
Neutral citation: 2002 FCT 53
Ottawa, Ontario, the 17th day of January, 2002
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
MOGAMED ALEXIBICH,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Mr. Mogamed Alexibich has applied for judicial review of the negative decision of the Refugee Division of the Immigration and Refugee Board (the "Refugee Division") rendered on May 23, 2000.
[2] Mr. Alexibich is a Russian citizen of Chechen nationality. He alleges a fear of persecution by his Chechen compatriots owing to his refusal to join them in the war between Russia and Chechnya. After he refused to become a combatant, he was beaten and threatened with death. On November 28, 1999, he left Chechnya for Moscow in the fear that the militants would act on their threats.
[3] He arrived in Moscow, a city that had just been subjected to some explosions caused by Chechen terrorists. The atmosphere in the Russian capital, as a result of these barbarous acts, did not favour those of Chechen nationality. They were arrested and beaten by the Russian police. Mr. Alexibich was arrested three times, held for 10 hours and beaten by the officers of the correctional service.
[4] Still concerned about his personal safety, Mr. Alexibich left Moscow for New York after 20 days, arriving there on December 18, 1999. His difficulties continued when he was robbed of his bag while using the airport washroom. He thus found himself without his passport or his personal effects. On December 19, 1999, he travelled to Canada where he claimed refugee status on the same day.
[5] At the hearing of his claim, the Refugee Division granted Mr. Alexibich an additional period to enable him to submit his internal passport, which he said he had left with a friend. Mr. Alexibich took advantage of this period to provide the Refugee Division with his father's internal passport instead of his own. In its reasons, the Division comments that this substitution has not been explained.
[6] The Refugee Division concluded that Mr. Alexibich had some credibility issues. It said he did not respond "to our satisfaction" to the questions put to him during the hearing. It says it had some difficulty believing in "[Translation] all these losses presented off the cuff" and the improvised explanations provided at the hearing.
[7] The Refugee Division states in its reasons that it was not inclined "[Translation] to alter our decision" by the fact that Mr. Alexibich supplied his father's internal passport in place of his own, since Mr. Alexibich lacks credibility. Mr. Alexibich criticizes the Refugee Division for not following up with his counsel, Mr. Lebrun, as the latter had urged it to do, if it had some questions about the documentation.
[8] The Refugee Division found that Mr. Alexibich had not succeeded in establishing that there was a reasonable possibility of persecution should he return to his country of origin, and consequently that he was not a Convention refugee.
[9] Mr. Alexibich attacks a number of aspects of the Refugee Division's decision. First of all, he alleges that once his nationality was no longer at issue, thanks to the documents he had provided to the Division (in particular, his father's internal passport, which clearly indicates the Chechen nationality of his father, and therefore of his son, as well as an affidavit attesting to his nationality), the Division then had to apply the documentary evidence, which shows that Chechens are harassed and persecuted in Russia owing to their nationality.
[10] Mr. Alexibich alleges that the Refugee Division had decided his fate before receiving the documentation he sent to it, in view of the following sentence contained in the Division's reasons: "it is not this fact that will induce us to alter our decision...."
[11] Mr. Alexibich also questions the test the Refugee Division applied to his testimony when it stated in its reasons that he did not reply "to our satisfaction" to the questions that were put to him. The test for assessing credibility cannot, he says, be as subjective as providing answers to questions that will satisfy the panel that is ruling on his claim.
[12] Mr. Alexibich takes particular exception to the Division's findings on his credibility. The panel's assessment of credibility is based on two aspects of Mr. Alexibich's account. First, the Division doubts that Mr. Alexibich could have gone from Chechnya to Moscow without difficulty since, it says, "[Translation] the Caucasus region is a high-risk, explosive and dangerous area." Clearly, therefore, the Refugee Division did not believe that Mr. Alexibich could simply have left without difficulty. Mr. Alexibich asks the following question in relation to this conclusion: if he had had some difficulty in fleeing Chechnya, as the Refugee Division seems to think, what reason would he have to hide this? This adverse finding as to his credibility on an issue that has nothing to do with any significant aspect of his claim is unfounded and meaningless, he says.
[13] The second consideration in relation to Mr. Alexibich's credibility is the issue of the loss of his documents. The Refugee Division thinks the theft of Mr. Alexibich's bag in the New York airport washroom was a story that was improvised. In his affidavit, Mr. Alexibich notes that five months prior to the hearing of his claim he had told the point of entry immigration officer that he had lost his bag in the United States. This clearly contradicts the suggestion of an improvised story.
[14] Finally, Mr. Alexibich attacks the Refugee Division finding that he will not be persecuted in his country of origin. He notes that in Sorogin v. Canada, [1999] FCJ No. 630, the Refugee Division had the same documentary evidence before it. On the strength of that evidence, the Division allowed Sorogin's claim. How can the same documentary evidence be sufficient to support a refugee claim in the Sorogin case and not in his? He alleges that the Refugee Division acted in a discriminatory manner.
[15] Mr. Alexibich tried on two occasions to argue that, once his Chechen identity was established, the Refugee Division had no option but to recognize him as a refugee on the strength of the documentary evidence. This reasoning underlies the argument that the Division erred in not granting him refugee status when he supplied proof of his nationality. According to Mr. Alexibich, the same logic that applied in Sorogin, supra, should apply in this case, namely, that a claim is allowed on the basis of the documentary evidence; to rule otherwise would be discriminatory.
[16] In effect, Mr. Alexibich would like to persuade the panel that any Chechen citizen can be recognized as a refugee on the basis of the documentary evidence. But anyone claiming refugee status must demonstrate a subjective fear of persecution that is based on an objective reality. The documentary evidence may indeed satisfy the requirement of an objective reality, but it can in no way provide the proof of a subjective fear. This must come from the claimant. Here is what Mr. Justice Noël said about this in Sinora v. M.E.I. (1993), 66 F.T.R. 113:
The applicant admitted that he did not establish that he was personally subject to persecution. He added, however, that since the documentary evidence clearly shows that the poor are mistreated in Haiti, the Board members erred in holding that no evidence of persecution was presented.
In my opinion, the applicant's claim is entirely unfounded. It is settled law that an applicant must demonstrate an objective and subjective fear of persecution. In this case, it was not sufficient simply to file documentary evidence. It was necessary at the very least to establish that the applicant himself had a real fear of persecution. In the absence of such evidence, the Board members were entitled to conclude as they did.
This passage is quoted by Mr. Justice Blais at paragraph 100 of his reasons in Ithibu v. Canada, [2001] FCT 288, in which he reached the same conclusion:
The documentary evidence showed the abuses of the Kenyan government. However, the evidence of abuses in Kenya does not remove the applicant's burden to prove that he had a subjective fear that he would be persecuted.
Consequently, Mr. Alexibich had to persuade the Refugee Division that he had a subjective fear of persecution, failing which he was not a refugee but simply a national of a country in which life is very hard.
[17] So there is nothing discriminatory in the fact that a panel of the Refugee Division found in the Sorogin case that the Chechen claimant had demonstrated a subjective fear, and that another panel concluded otherwise in Mr. Alexibich's case. Subjective fear is above all a question of credibility. If the Refugee Division found that Mr. Alexibich was not credible in regard to significant aspects of his claim, it could in all fairness dismiss other aspects of his claim. That was the conclusion reached by Mr. Justice Pinard in Hajmemet v. Canada, [2001] F.C.J. No. 1698, in which he stated at paragraph 7 of his reasons:
[Translation] Furthermore, I am of the opinion, in the circumstances, that the panel's perception that the applicant is not credible amounts in fact to a finding that there is no credible basis for his refugee claim (see Aguebor v. M.E.I. (1993), 160 N.R. 315, at pages 316 and 317, and Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at page 244).
[18] In the present case, Mr. Alexibich came to Canada without a passport, a document that he needed in order to cross the American border so as to make his way to the Canadian border. The Refugee Division was right to examine him on the absence of his passport, especially because his passport would have disclosed whether Mr. Alexibich had stayed in other countries before arriving at the American border, as well as the date of his entry into the United States.
[19] Mr. Alexibich provides an explanation that is unbelievable unless one is exceptionally naive. It is not a question of judicial notice, but of simple life experience that one does not leave one's personal belongings, especially one's identification papers, at the door when one is using the washroom in a place as frequented as an airport. The Refugee Division might have believed Mr. Alexibich after hearing him testify without being criticized for it, but it did not believe him, a conclusion that was also open to it. There is nothing unreasonable in the conclusion reached by the Refugee Division.
[20] Mr. Alexibich protests that he is accused of having fabricated this story off the cuff when the point of entry officer's notes show that Mr. Alexibich offered the same explanation at the border. Does this erroneous finding taint the entire decision of the Refugee Division?
[21] The Refugee Division might possibly have taken a different view of Mr. Alexibich's claim had it not concluded that this explanation was improvised. But it must be said that it is not the improvised nature of the explanation offered by Mr. Alexibich that makes it incredible, but rather its improbability. Furthermore, that is what the Refugee Division said: "[Translation] It seems improbable to us that he suffered all these losses in the course of events that are inexplicable and, furthermore, that the explanations he gave us during the hearing are improvised." (The emphasis is mine.) The Refugee Division's error on this point was not such as to taint its decision.
[22] It must also be acknowledged that this is not an unimportant aspect of Mr. Alexibich's claim. His passport serves to establish not only his identity but also his movements. For these reasons, the Refugee Division assigns great importance to it. Since he could not have crossed the American border without this document, his allegation that he was unable to present it to the Refugee Division rightly attracted the latter's interest.
[23] On the other hand, Mr. Alexibich, having agreed to produce his internal passport, cannot criticize the Refugee Division for noting the fact that he produced in its place his father's passport. The burden of explaining the circumstances of this substitution was on him, and the Refugee Division had no need to pursue him in order to obtain some explanation.
[24] Finally, Mr. Alexibich raises some concerns with the language used by the Refugee Division, namely, when it discusses the unsatisfactory explanations he provided for questions that were put to him, or when it decides not to alter its decision after receiving additional evidence. It is true that the Refugee Division might have written its reasons in a different way; however, the words chosen do not constitute sufficient cause to set aside the decision. When the Refugee Division states that the claimant did not answer questions to the satisfaction of the panel, it is reasonable to believe that this simply means the Refugee Division was not convinced by the applicant. In my opinion, such language in the reasons in no way defines the standard of proof applied by the Refugee Division. (Does a judge who says he is not satisfied that there is a reasonable doubt as to the guilt of the accused refer to some standard other than reasonable doubt?)
[25] The passage cited by Mr. Lebrun in support of the argument that the Refugee Division had decided the case before receiving all the evidence quite simply touches on the proposition that the Refugee Division is entitled to receive and consider additional evidence after the close of the hearing. If the Refugee Division agrees to receive additional evidence after the hearing, it is bound to consider that evidence. But, having analyzed the evidence other than the evidence that was missing, it could indeed draw some provisional conclusions provided it was prepared to reconsider them in light of the evidence submitted later. A finding that the evidence did not make it change its mind means only that the latter evidence does not displace the weight of the evidence previously received.
[26] For these reasons, there is no cause to interfere with the decision of the Refugee Division.
[27] The parties have not asked me to certify a serious question of general importance as provided by section 83 of the Immigration Act, R.S.C. 1985, c. I-2, although they could have done so. I, therefore, do not propose to certify any such question.
ORDER
THE COURT ORDERS that:
The application for judicial review is dismissed.
"J.D. Pelletier"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-3178-00
STYLE: MOGAMED ALEXIBICH v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 7, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PELLETIER
DATED: January 17, 2002
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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