Date: 20000111
Docket: IMM-1664-99
OTTAWA, Ontario, the 11th day of January, 2000
PRESENT: The Honourable Mr. Justice Rouleau
Between:
OFELIA ARUTINOVA, MARINA ARUTINOVA,
IRENE ARUTINOVA
Applicants
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
[1] The application for judicial review is dismissed.
| J. |
Certified true translation
Bernard Olivier
Date: 20000111
Docket: IMM-1664-99
Between:
OFELIA ARUTINOVA, MARINA ARUTINOVA,
IRENE ARUTINOVA
Applicants
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review under section 82.1 of the Immigration Act of a decision of the Convention Refugee Determination Division (the Board) rendered on March 8, 1999, according to which the applicants are not Convention refugees.
[2] The applicants, Ofelia Arutinova, Marina Arutinova and Irène Arutinova, are citizens of Georgia and live in the area of Tbilisi. They claim refugee status by reason of their Armenian nationality. They allege that they have a fear of persecution because they have been the victims of insults, discrimination, threats, assaults and incitement to leave their country on the part of neighbours and members of nationalist groups, as a result of their Armenian nationality.
[3] On December 22, 1997, the husband of the applicant Marina was killed, they say, in the course of an assault by one of four individuals who had broken into the Arutinova family"s apartment. The police arrested these individuals but charged only one of them. He was released after spending 45 days in a psychiatric hospital. He is said to be the nephew of the district prosecutor and an active member of a nationalist movement.
[4] On March 24, 1998, Irène"s husband was shot dead in the street by one of four attackers. The applicants say they were refused assistance by the police. They say a police officer told them: "We have had enough of your complaints, you Armenians should leave."1
[5] Accordingly, fearing for their lives, they left Georgia on June 8, 1998 and arrived in Canada where they applied for refugee status on June 10, 1998.
[6] The Board concluded that the applicants had failed to demonstrate that they feared persecution because of their Armenian nationality.
[7] The Board noted that in order to establish a fear of persecution, the applicants had to demonstrate the inability of the State to protect them. According to the Board, they received police assistance and protection since the alleged attackers were arrested and it had not been demonstrated that the State had no desire or ability to protect the applicants.
[8] The Board notes that the applicants did not lay a complaint or attempt to find out why the alleged murderer of Marina"s husband was released. As for the incident of March 23, 1998, during which Irène"s husband died, the applicants indicated they had not attempted to obtain information concerning the investigation because they had been treated like criminals.
[9] The Board therefore rejected the applicants" explanations as it was not persuaded that the State was unable to secure their protection. The Board further states that it did not consider the applicants credible since the documentary evidence failed to support their allegations.
[10] The applicants filed a medical certificate and the death certificates of their husbands. However, the Board says these documents do not establish that the injuries that resulted in the deaths of the spouses have any relationship to the situations of persecution.
[11] The Board states that the evidence is not sufficient to establish that the applicants" return to Georgia would entail risks of persecution.
[12] The Board stated that the documents do not demonstrate any problem of discrimination in the area of Tbilisi. However, the applicants allege that exhibit P-30 discloses that certain problems do exist in Tbilisi. They rely on Muzychka v. M.C.I., IMM-1113-96, March 7, 1997, and say that the Board erred in its findings.
[13] The applicants submit that the Board was duty-bound to explain in its reasons why it assigned greater credibility to the documentary evidence than it did to the oral testimony. In this regard they cite Agranovski v. M.E.I., IMM-2709-95, in which Madam Justice Tremblay-Lamer wrote:
| When it chose to believe the documentary evidence instead of the oral testimony of the applicant, the Board was duty-bound to provide reasons for doing so. This principle is clear in Okyere-Akosah v. M.E.I., in which the Federal Court of Appeal held, at p. 389: "Since there is a presumption as to the truth of the appellant"s testimony ... The Board was bound to state in clear and unmistakable terms why it preferred the documentary evidence over the appellant"s testimonial evidence." |
[14] The applicants submit that the Board relied on evidence that is not recent, namely exhibit A-5. This evidence dates from May 1996. It appears that the applicants" counsel raised this point during the hearing, however the Board did not respond.
[15] They cite extracts from exhibits P-26 and P-30 to demonstrate that the Board erred in stating that there was no compelling evidence concerning the fear of persecution. They quote from exhibit P-26: "... in his word the law is ignored altogether in Georgia." They go on to quote from exhibit P-30: "[Translation ] The statesmen and the church are explicitly involved in the process of destruction of monuments...."
[16] The applicants maintain it is false to say that the police could help them since an officer told them: "We have had enough of your complaints, you Armenians should leave."
[17] The respondent submits that the Board had grounds to find that the applicants had failed to demonstrate the inability of the Georgian state to protect them. Respondent"s counsel cites Canada v. Ward , [1993] 2 S.C.R. 689 as authority for the proposition that, in matters of state protection, absent clear and convincing evidence to the contrary, states are presumed to be capable of protecting their nationals. He then cites M.C.I. v. Kadenko (1997), 206 N.R. 272 (F.C.A.):
| When the state in question is a democratic state, as in 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: |
[18] Thus, as the Board"s decision indicates, the applicants were given State protection at the time of the first incident. As to the second incident, the respondent notes that the police initiated an investigation but the applicants were unable to provide more than a general description of the attackers. As the Board indicates, the applicants did not subsequently request any information concerning the investigation.
[19] The Board based its decision concerning the lack of credibility in the applicants" allegations that they were being persecuted because of their nationality on the incompatibility of these allegations with the documentary evidence. The respondent maintains that the Board is entitled to prefer the documentary evidence to a claimant"s testimony. He argues that it can be observed from the Board"s reasons in themselves that the Board gave sufficient reasons for its decision, and he says the reasons that led it to find an absence of credibility are explained.
[20] The respondent says there is no merit in the applicants" allegations that exhibit P-30 contradicts the Board"s conclusion. He notes, first, that the translation of exhibit P-30 is incomplete. Furthermore, the extract from this exhibit to which the applicants refer is in fact information taken by the author of the article from a volume describing "anti-Armenian" action between 1988 and 1998.
[21] The respondent submits that the applicants have failed to demonstrate that the more recent evidence they filed contradicts the Board"s finding that there were no problems in such areas as Tbilisi.
[22] Exhibit P-30 is a summary dated September 23, 1998 taken from a book demonstrating the vandalism and destruction of certain Armenian monuments and churches during the previous decade. It contains a simple reference to Tbilisi, a mention that a cemetery was vandalized. I am not convinced that this evidence is sufficient to contradict the Board"s findings that there are no serious problems in Tbilisi.
[23] The cases are clear that a board is entitled to prefer the documentary evidence to the testimony of a claimant: Zhou v. Canada (M.E.I.), [1994] F.C.J. No. 1087 (F.C.A.), Victorov v. Canada (M.C.I.), [1995] F.C.J. No. 900. Although the applicants are of the opinion that the Board did not explain this choice, the Board did apparently state that the documentary evidence as well as the oral testimony were insufficient to demonstrate a well-founded fear of persecution. The Board further stated that no credibility was given to the applicants on the basis of the documentary evidence. In this regard, it cited four extracts from the documentary evidence that point to the lack of serious problems experienced by the Armenians owing to their nationality.
[24] Exhibit A-5, which is disputed by the applicants, originates with the United States Department of State and was written in May 1996. This document contains the following statement:
| Based on reporting available to us, Armenians are not being mistreated on an ethnic basis. |
[25] Exhibit P-26 states that in Georgia prisoners" rights are often violated. But this article, which is reporting only on the condition of prisoners, is not evidence that might serve to corroborate the applicants" allegations that citizens of Georgia are persecuted on the basis of their nationality.
[26] As for Exhibit P-30, it reports only some acts of vandalism committed in relation to Armenian monuments. Again, this is not evidence demonstrating a possibility of persecution for the Armenians in Georgia.
[27] The Board concluded that it was not convinced that the State"s protection could not reasonably be secured. The evidence discloses that the individual who allegedly killed the applicant"s husband spent some time in a psychiatric hospital. In the case of the murder of Irène"s husband, it appears that the police attempted to investigate but, due to a lack of information about the attackers, no arrest could be made. The applicants complained that a police officer allegedly told them "We have had enough of your complaints, you Armenians should leave." In this regard, I feel obliged to recite what Décary J.A. of the Federal Court of Appeal said in M.C.I. v. Kadenko (1997), 206 N.R. 272:
| When the state in question is a democratic state, as in 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 |
[28] The applicants had the onus of producing clear and convincing evidence concerning their country"s inability to protect its citizens: Canada v. Ward , [1993] 2 S.C.R. 689. This decision laid down the following principle:
| The claimant must provide clear and convincing confirmation of a state"s inability to protect absent an admission by the national"s state of its inability to protect that national. Except in situations of complete breakdown of the state apparatus, it should be assumed that the state is capable of protecting a claimant. |
[29] I am satisfied that the conclusions of the Board are well founded in fact and in law. Accordingly, the application for judicial review is dismissed.
| J. |
OTTAWA, Ontario
January 11, 2000
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO: IMM-1664-99 |
| STYLE: OFELIA ARUTINOVA et al. |
v. MCI
| PLACE OF HEARING: OTTAWA, ONTARIO |
| DATE OF HEARING: DECEMBER 7, 1999 |
REASONS FOR ORDER OF ROULEAU J.
DATED: JANUARY 11, 2000
APPEARANCES:
MICHEL Le BRUN FOR THE APPLICANTS
MARIE-CLAUDE DEMERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL Le BRUN FOR THE APPLICANTS
MARIE-CLAUDE DEMERS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
__________________1 See transcript p. 79 and affidavit of Marina Arutinova.