Date: 19980915
Docket: IMM-4520-97
BETWEEN:
VLADIMIR FERTIH
ANNA BROVKINA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision of Jean-Pierre Beauquier and Jean-Guy Roussy, members of the Refugee Determination Division, dated October 3, 1997, in file nos. M95-11080 and M95-11081, under section 82.1 of the Immigration Act.
[2] The panel's decision is based specifically on the fact that both applicants admitted that they would have remained in Kazakhstan if they had been accepted into the law faculty of the Kazakh State University in Alma-Ata.
[3] The panel concluded that it could not believe the fear of persecution that was consequently alleged.
[4] The panel further indicated that it had examined all the evidence, including both the testimony and the documentary evidence, and concluded from it that the claimants were not Convention refugees.
[5] Further on, the panel also said:
| [TRANSLATION] The evidence submitted to us is insufficient to establish that in the event that the claimants returned to their country of origin there would be a reasonable possibility, as expressed in Adjei,1 that they would be persecuted. |
[6] Counsel for the applicants submitted that the members of the panel had patently erred in fact and in law in refusing to determine the balance of probabilities as it emerged from the applicants' testimony at the time of the hearing.
[7] It is plain that the applicants did not satisfy the Convention Refugee Determination Division that they met all the tests in the definition of refugee, and specifically that they had a sincere fear of persecution.
[8] Moreover, the members of the panel clearly stated that they had reviewed all of the evidence, including both the testimony and the documentary evidence. In fact, they made a number of references to it in their decision.
[9] I believe that the Refugee Division was not unreasonable in its assessment of the fear of persecution alleged by the applicants, or, to all intents and purposes, in its conclusion regarding the existence of even a subjective fear of persecution, based on the admission made by both applicants at the hearing, which was that they would have remained in Kazakhstan if they had been accepted into the faculty of law of the Kazakh State University in Alma-Ata. On this point, it is important to read Mr. Justice Létourneau's comments in Huerta v. M.E.I.:2
| We are of the opinion that the members of the Refugee Division did not commit any error in their assessment of the refugee claim made by the appellant. Based on the evidence in the file, they found that the appellant's conduct after the incidents of which she complained contradicted her claim that she fears for her life and safety if she has to return to Mexico and that her conduct negates the very existence of an objective fear of persecution. |
[10] In Rahman v. M.E.I.,3 the Federal Court of Appeal held:
| It is not necessary for us to make any finding as to the second conclusion reached by the Refugee Division, that is, that there has been a "change of circumstances" in the appellant's country of origin. It appears obvious to us that the Division did not believe the appellant, because it found major contradictions between his actions and his statements. This is a conclusion that is within the jurisdiction of the tribunal and we cannot intervene unless it was reached in an unreasonable manner, which is certainly not the situation in the case at bar. |
[11] Counsel for the applicants argued that the positive response to the question as to their intention of remaining in Kazakhstan if they had both been accepted at the university should have been stated less categorically by the board. I think it worth recalling that it is the applicants who have the burden of proving that they are Convention refugees, and that after they had given precise answers to precise questions, if the applicants or their counsel wanted to make what they said less categorical, it was entirely open to them to do so, but they still had the burden of proof in the circumstances.
[12] The applicants have in no way established that the Refugee Division erred in fact or in law by assigning no credibility to their alleged fear of persecution.
[13] Counsel for the applicants also submitted in both his memorandum and his oral submissions that the panel failed to consider the evidence regarding the lack of state protection in Kazakhstan.
[14] The panel was correct in not giving a detailed response to this question, given that the panel did not believe the fear of persecution alleged by the applicants.
[15] On this point, I accept the argument of counsel for the respondent regarding the facts. Given that the applicants did not meet the test of the constituent elements of the refugee definition, the members of the panel did not have to pursue their analysis as to whether or not there was state protection in Kazakhstan, although on reading the panel's decision it is apparent that the members of the panel examined all of the evidence, including both the testimony and the documentary evidence.
[16] I believe it is important to consider the judgment of Mr. Justice Hugessen in Florea v. M.E.I.:4
| The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed. |
[17] For all these reasons, the application is dismissed.
[18] There is no serious question of general importance to be stated, such as would open the way for an appeal under the provisions of section 83 of the Act.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 15, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO: IMM-4520-97
| STYLE OF CAUSE: VLADIMIR FERTIH AND ANNA BROVKINA v. |
| MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 27, 1998
REASONS FOR ORDER OF BLAIS J.
DATED: September 15, 1998
APPEARANCES:
Alain Joffe FOR THE APPLICANTS
Pascale-Catherine Guay FOR THE RESPONDENT
SOLICITORS OF RECORD:
Montréal, Quebec FOR THE APPLICANTS
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________1 Adjei v. M.E.I., [1989] 2 F.C. (C.A.).
2 (1995), 157 N.R. 225 (F.C.A.).
3 A-1221-91, April 22, 1994 (F.C.A.).
4 A-1307-91, June 11, 1993 (F.C.A.).