Date: 19990611
Docket: IMM-2394-98
BETWEEN:
OLEG KOROZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J:
[1] The applicant raised four separate grounds in his application for the judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"), dated May 5, 1998, wherein the Board determined that the applicant is not a Convention refugee as defined under subsection 2(1) of the Immigration Act ("the Act")1.
1. Issues
[2] The four issues raised by the applicant are as follows:
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1. Did the Board err in law or in fact in finding that there was an internal flight alternative available to the applicant in the circumstances of this case? |
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2. Did the Board refuse to exercise jurisdiction in this matter by adopting the reasoning of another panel regarding the existence of an internal flight alternative? |
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3. Did the Board err in law or in fact in finding that the applicant may have been subject to discrimination, but that he did not face a serious risk of persecution in the facts of this case? |
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4. Was the applicant denied natural justice at the hearing because of the quality of interpretation? |
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2. Facts
[3] The applicant was born in 1971, in Tiraspol, Moldova. He is a non-practicing Jew. He submits that as a child he was mistreated in daycare, had his bicycle stolen by neighbourhood children and was tormented and insulted by classmates and teachers While in college and later on in life as a wood carver. He was harassed, abused and on two occasions attacked. He left Moldova on June 8, 1997, and claimed convention refugee status in Montréal the next day. His claim was denied on May 5, 1998.
3. The Board's decision
[4] The Board stated that the central issue in this case was the Internal Flight Alternative ("IFA"). It was concerned as to whether the applicant really had a subjective fear given his failure to take the available option for him to go to Israel as a full citizen under the Israeli Law of Reform. However, the Board concentrated its analysis on the availability of a clear IFA in Kishinev, the capital of the country. It referred to an application (file no. A96-00885) which was denied by another panel on April 22, 1998, on the ground that recent documentary evidence established that Kishinev, where there is a Jewish community, was a safe area for Jews. The Board adopted the same reasoning as the other panel and annexed the other panel's decision to its own.
[5] The Board found that "the claimant may face discrimination in Kishinev on the basis of his Jewish nationality, but that this does not amount to persecution, even when considered cumulatively". Subsequently, it assessed whether the IFA to Kishinev was reasonable in the circumstances. The Board noted that the claimant, when confronted with the IFA solution, responded that Kishinev was not a calm city, that housing would be more expensive there and that he might not be able to find a job in the capital.
4. Analysis
[6] Firstly, in my view, it was open for the Board to find that there was an IFA in the capital of Moldova based on the recent documentary evidence. That evidence is mostly to the effect that the Jewish community of Kishinev is very active, at peace, and "is experiencing a renaissance, unprecedented in modern times". The onus was on the applicant to show that there was no safe haven for Jews anywhere in the country. It cannot be said that the Board's interpretation of the law and the jurisprudence on IFA was incorrect or that its appreciation of the documentary evidence was unreasonable. It was satisfied on a balance of probabilities, that there was no serious possibility of the applicant being persecuted in the capital city and that, in the circumstances particular to the applicant, it would not be unreasonable for him to seek refuge there.
[7] Secondly, neither can it be said that the Board refused to exercise its jurisdiction by adopting the reasoning of another panel regarding the existence of an IFA in the capital of Moldova. After all, the same documentary evidence was before the two panels. Moreover, the Board also considered another decision (file no. A95-00490) wherein the panel found that the claimant had a well-founded fear of persecution in Moldova based on his Jewish nationality. The Board was not bound to accept either decision. It decided to follow file number A96-00885 and stated why. It is unusual for a Board to annex to its own decision the decision of another panel but it is not fatal. It is somewhat akin to annexing the jurisprudence that it decided to follow.
[8] Thirdly, "persecution" has been defined as "an affliction of repeated acts of cruelty or a particular course or period of systematic infliction of punishment"2. The question as to whether particular actions constitute persecution is a mixed question of fact and law. As Marceau J.A. said in Sagharichi v. M.E.I.3, the dividing line between persecution and discrimination, or harassment, is difficult to draw. It is for the Board to decide in a particular factual context by proceeding with a careful analysis of the evidence adduced. In the case at bar, the Board did not decide whether the discrimination amounted to persecution in Tiraspol, where the applicant lived. It found that there was no probability of persecution in Kishinev.
[9] As to the fourth issue, whether the quality of interpretation at the hearing was so poor as to constitute a denial of natural justice to the applicant, one must look at the transcript. The applicant was represented by counsel but he did not raise the issue. In fact, it was the Presiding Member who did. The latter adjourned the hearing to discuss the problem, after which he asked counsel for the applicant whether he "consented to continue proceeding with the current interpreter". Counsel agreed. Although the translation appears to have been laborious, there is no evidence that any error injurious to the applicant occurred.
5. Disposition
[10] The decision of the Board is not unreasonable and this application for judicial review must be dismissed. At the request of counsel for the applicant I will certify the following question as being of general importance under section 83 of the Act:
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May a Board "adopt the same reasoning as another panel" faced with the same documentary evidence as a basis for finding the existence of an internal flight alternative in the same country? |
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OTTAWA, ONTARIO
June 11, 1999
Judge
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1 R.S.C. 1985, c. I-2.
2 Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 at pp. 133-34 (F.C.A.).
3 (1993), 182 N.R. 398 at p. 399 (F.C.A.), leave to appeal to S.C.C. denied (1994), 170 N.R. 159n.
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