Date: 20020128
Docket: IMM-6135-00
Neutral Citation: 2002 FCT 88
BETWEEN:
ALEXANDER SOLTAN
Plaintiff
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review pursuant to s. 81.1(1) of theImmigration Act from a decision of the Immigration and Refugee Board ("the tribunal") on November 2, 2000, a decision which concluded that the plaintiff was not a Convention refugee.
[2] Let us briefly review the facts. The plaintiff was born at Kishinev in Moldavia on September 8, 1976. He is a Moldavian citizen of Russian nationality. He also zealously practices the Zen Buddhist religion. The plaintiff maintained that on account of his religious beliefs and Russian nationality he was a victim of religious intolerance, hostility and discrimination based both on his religious beliefs and on his ethnic group.
[3] Specifically, the plaintiff alleged that he was beaten by the police on several occasions and that he and his apartment were searched without a warrant.
[4] The plaintiff alleged that his mother developed brain cancer caused by harassment by the local authorities and died on June 7, 2000.
[5] The plaintiff arrived in Canada on December 21, 1999 and claimed refugee status on December 23, 1999 based on his Russian nationality and Zen Buddhist religion.
POINT AT ISSUE
[6] Did the Refugee Division make an error when it concluded that the plaintiff would not be persecuted based on his nationality and religion if he had to return to Moldavia?
ANALYSIS
[7] The plaintiff alleged he was a victim of discrimination in Moldavia based on his Russian nationality, and in particular the fact that he spoke Russian and communicated only in Russian. The tribunal said, at p. 1 of its decision:
Since independence the claimant, who does not speak the Moldovian language, has been suffering discrimination at school and from every government service officials speaking Moldovian who were refusing to answer his requests in Russian.
[8] At p. 2 of its decision, the tribunal noted the plaintiff's problems communicating in Moldavian:
The claimant alleged that he had a series of problems due to the fact that they were expressing themselves in Russian. The authorities were not providing his mother with proper care.
[9] At the same time, contrary to the plaintiff's testimony, the tribunal concluded that government protection was available for citizens of Russian nationality in Moldavia. At p. 3 of its decision, the tribunal noted:
As per the Ward decision, even though there are some undue influence affecting the judiciary independence, the panel finds that State protection is available in Moldova for Russian nationals. There are no discriminations reported be they about nationality or religion.
[10] The plaintiff's fear of persecution based on his Russian nationality appears to be a secondary question, the central point being his fear of persecution based on his membership of the Zen Buddhist religion. The tribunal clearly explained that the documentary evidence on the particular situation in Moldavia in no way supports the allegations that the plaintiff was a victim of discrimination on account of his religion. At p. 2 of its decision, the tribunal said:
Documentary evidence does not support the claimant's allegation that Buddhists are persecuted in Moldova. There is freedom of religion. According to the International Helsinki Federation of Human Rights in their Annual Report of 1998, the Moldovian Law on worship seems to impose some restrictions on religious groups of a financial nature. There is no mention of any problems with Buddhism. The 1999 U.S. Country Reports on Human Rights on religion states that the Law provides for freedom of religious practises including each persons right to profess his religion in any form. . . . there is no mention in the U.S. Country Report on Human Rights Practices about the authorities pursuing Buddhist adepts.
[11] The tribunal was fully entitled to assess the evidence before it and weigh the documentary evidence also presented to it. In Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 114 (F.C.A.), the Federal Court of Appeal said per Hugessen J.A.:
The "presumption" that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.
[12] Also, in Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.), Rouleau J. said:
[para 15] Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the applicant's testimony but chose to place more weight on the documentary evidence.
[13] The tribunal considered that the documentary evidence was entirely trustworthy and decided to prefer that documentary evidence to the oral evidence submitted by the plaintiff in his testimony. Based on the existing case law, the tribunal had full discretion to act as it did.
INTERNAL FLIGHT ALTERNATIVE
[14] The tribunal further considered that the plaintiff had a valid available internal flight alternative, but the plaintiff chose not to use this opportunity available to him. The tribunal noted, at p. 4:
The claimant replied that there was no work to be found even in Transnister.
[15] In Ranagnathan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 793 (F.C.T.D.), Evans J. noted:
[para 50] I think that Rothstein J. got it right when he said in Kanagaratnam, supra (at page 132):
I interpret Linden, J.A.'s comments [in Thirunavukkarasu, supra] not to exclude the absence of friends or relatives or inability to find work as factors in the reasonableness consideration, but only that these factors alone would not make an IFA unreasonable.
(My emphasis)
[16] Based on the existing case law, the plaintiff's concern about the possibility of finding work in the Transnister area is not a valid objection to an internal flight alternative: the tribunal accordingly concluded, at p. 4:
The panel finds that the claimant did not explore all the possibilities to relocate himself where his neighbours and local authorities might be less bothered by his religious beliefs.
[17] In my view, the plaintiff did not succeed in showing that the tribunal made an error that might justify intervention by this Court.
[18] Consequently, this application for judicial review must be dismissed.
[19] The parties did not suggest a question for certification.
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Pierre Blais
Judge
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OTTAWA, ONTARIO
January 28, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-6135-00
STYLE OF CAUSE: Alexander Soltan
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 15, 2002
REASONS FOR ORDER BY: Blais J.
DATED OF REASONS: January 28, 2002
APPEARANCES:
Michel Le Brun FOR THE PLAINTIFF
Martine Valois FOR THE DEFENDANT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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