Date: 20020110
Docket: IMM-1754-01
Ottawa, Ontario, January 10, 2002
Before: Pinard J.
Between:
ARTAK BUDAGHYAN
NARINE ZAKARYAN
Plaintiffs
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
ORDER
The application for judicial review from a decision by the Refugee Division on March 12, 2001 that the plaintiffs are not Convention refugees is dismissed.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20020110
Docket: IMM-1754-01
Neutral citation: 2002 FCT 20
Between:
ARTAK BUDAGHYAN
NARINE ZAKARYAN
Plaintiffs
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision by the Refugee Division on March 12, 2001 that the plaintiffs are not Convention refugees as defined in s. 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The principal plaintiff Mr. Budaghyan, and his wife Ms. Zakaryan, are both citizens of Armenia. Ms. Zakaryan based her claim on that of her husband, who alleged that he was persecuted in his country because of his refusal to do military service.
[3] The Refugee Division dismissed the plaintiff's claim as it found that he had not discharged his burden of showing that he really was a conscientious objector.
[4] The plaintiff submitted that the Refugee Division's conclusion that he had not been subjected to any constraint was wrong. It was a finding of fact. In this regard, the Refugee Division's expertise is well-established. Unless the inferences drawn by it are erroneous, made in a perverse or capricious manner or without regard for the material before it, this Court should not intervene in its decision (s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). In Fletcher v. Manitoba Public Insurance Co., [1990] 3 S.C.R. 191, per Wilson J., the Supreme Court of Canada at 204 set out as follows the test applicable to judicial intervention in findings of fact:
These authorities, in my view, make crystal clear the test for determining when it is appropriate for an appellate court to depart from a trial judge's findings of fact: appellate courts should only interfere where the trial judge has made a "palpable and overriding error which affected his assessment of the facts." The very structure of our judicial system requires this deference to the trier of fact.
[5] In its decision, before concluding that the evidence submitted did not suffice to establish a reasonable possibility of persecution in the event of a return to Armenia, the Refugee Division noted several points, in particular that the plaintiff had been exempt from military service as of 1990, was still suffering from the illness for which he was exempted in 1990 and 1998, that on the date of the hearing he enjoyed an exemption extending to October 2001, that he had a university degree and that he was over 27 years old. In light of the evidence in the record, therefore, I consider that the Refugee Division's finding is reasonable.
[6] It is also well established that as a specialized tribunal the Refugee Division has complete jurisdiction to assess and analyze the contents of the documentary evidence. Further, it may conclude that one part of the documentary evidence is of greater value than another or that the evidence has more evidentiary value than a claimant's testimony (see the judgment of the Federal Court of Appeal in Zhou v. Minister of Employment and Immigration (July 18, 1994), A-492-91).
[7] When the Refugee Division asked how deserters are treated in Armenia, the plaintiff answered as follows:
[TRANSLATION]
. . . that . . . Armenian authorities do not always respect the law, but facts which I described in my account, facts, events which happened to me . . . it happened to me, that is further proof that the . . . authorities . . . do not always respect the law, which I . . . may have told you.
[8] I feel that the Refugee Division's ruling in this regard is reasonable based on the objective evidence cited on the point (document AMN31741.E, dated May 6, 1999):
. . . If the persons concerned were over the age of 27, had a university degree or were sole providers they were not obliged to do military service and so were of no concern to the military system.
The Committee emphasized that draft evaders and deserters who returned voluntarily to their military units were not punished, and pointed out that every year the Armenian Parliament adopted an amnesty law for them.
The Committee confirmed that the military authorities were not interested in people over the age of 27. . . .
[9] Additionally, Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, establishes that in order to meet the definition of a "Convention refugee" a refugee status claimant must show by clear and convincing proof that the state of which he is national is unable to protect him. La Forest J.A. confirmed the following, at 726:
In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced.
[10] Subsequently, in Kadenko et al. v. Canada (Solicitor General) (1996), 206 N.R. 272, Décary J.A., speaking for the Federal Court of Appeal, said the following at 274:
When the state in question is a democratic state, as is the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.
[11] The Refugee Division concluded that the plaintiff could have asked the military court to deal with his problems. I agree with that statement. The transcript of the plaintiff's testimony, at pp. 489 and 490 of the tribunal's record, clearly shows that the plaintiff had been asked to apply to a military authority, but had not done so solely because he was [TRANSLATION] "not really a soldier or an employee of . . . the army".
[12] I further consider that it was not reasonable for the plaintiff not to seek help from the military commission after receiving his first summons on May 24, 2000, especially as he had previously been exempted from military service three times.
[13] The fact that these remedies existed and that the plaintiff refused to use them for purely technical reasons confirms that he did not exhaust the remedies available to him in his country.
[14] Further, it was established in Popov v. Canada (M.E.I.) (1994), 24 Imm.L.R. (2d) 242 (F.C.A.), that compulsory military service does not constitute persecution. The plaintiff explained at pp. 487 and 501 of the tribunal's record that military service was against his principles. On this point I have already held, in Garcia v. Secretary of State of Canada (February 4, 1994), IMM-2521-93:
. . . it appears to me that the tribunal did consider the effect of these changes on the objective basis of the applicant's fear, inter alia in respect of the principal source of his fear, that is, being forcibly recruited to the FMLN or the army during the civil war, it being well known that aversion to military service or fear of combat is not in itself sufficient to establish a well-founded fear of persecution within the meaning of the Convention.
[15] Finally, as MacGuigan J.A. said in Zolfagharkhani v. Canada (M.E.I.), [1993] 3 F.C. 540 (F.C.A.) and Joyal J. said in Talman v. Canada (Solicitor General), [1995] F.C.J. No. 41 (T.D.) (QL), it is for the applicant to show that laws of general application are inherently prosecutory. In the case at bar, as in Talman, supra, that is not the case since a possibility of exemption exists.
[16] For these reasons, the application for judicial review is dismissed.
OTTAWA, ONTARIO
January 10, 2002
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1754-01
STYLE OF CAUSE: ARTAK BUDAGHY NARINE ZAKARYAN v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 20, 2001
REASONS FOR ORDER: PINARD J.
DATED: January 10, 2002
APPEARANCES:
Michel Le Brun FOR THE PLAINTIFFS
Marie Nicole Moreau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE PLAINTIFFS
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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