Date: 19980707
Docket: IMM-3066-97
BETWEEN:
VOLODIMIR GORODISKIY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review, dated July 22, 1997, seeking judicial review of a decision of the Immigration and Refugee Board ("IRB"), dated June 27, 1997, finding the applicant not to be a Convention refugee.
[2] This matter came on for hearing in Toronto on June 23, 1998 when decision was reserved. After consideration of submissions then made and review of the record, an Order issued on June 25, 1998 dismissing the application, for the reasons that follow.
Background
[3] Mr. Gorodiskiy is a citizen of the Ukraine. He worked as a seaman, obtaining this work through a Ukrainian firm that supplied crew to other companies. By paying repeated bribes to this firm, Mr. Gorodiskiy eventually secured, in April 1994, a promise of employment with a German shipping company, Clipper Management. As a final condition of this offer, his Ukrainian employer insisted that Mr. Gorodiskiy join the Odessa Seaman Trade Union, paying a monthly fee of US$50.
[4] Upon arriving in Belgium to begin his job, the applicant found that the conditions of his contract of employment, in terms of salary, overtime and working conditions, were violated. Subsequently he was required to sign blank forms before receiving his pay, and he was threatened with reprisals should he complain of his treatment.
[5] In March 1995, the applicant finally complained, by phone, to the International Trade Union Federation, which sent an inspector who put the ship under arrest where it was berthed, in Finland. Clipper, the German shipping company, paid a fine. The captain told the applicant to stop complaining "or else".
[6] In June 1995, the applicant returned to Kiev in the Ukraine to discover that his mother had suffered a heart attack, brought on, he believes by the harassment she had suffered from men demanding information on the applicant. When the applicant returned to Odessa, the Union complained about him to the police, who required the applicant to sign a statement preventing him from leaving Odessa. The applicant's story, as contained in his PIF, continues as follows:
| ...On Aug. 5, 1995, I received a summons indicating my hearing was scheduled for Sept. 15, 1995, for an unspecified crime. I feared they would unjustly prosecute, convict and incarcerate me indefinitely. I knew I must escape Ukraine. In September, I obtained a Canadian Visa, and on Oct. 26, 1995, I flew to Canada. |
| ... |
| I did not turn to the authorities for protection while being defrauded by Ters Co. [his Ukrainian employing company] since I feared the police would imprison or harass me for complaining. Then, after I joined the OSTU I could never challenge its authority or abusive practices since it's state-run. |
| ... |
| If deported to my homeland, I'd be immediately arrested and unjustly prosecuted, convicted and imprisoned for a long period for illegally fleeing Odessa in clear violation of police orders. I'd also suffer for blowing the whistle on and challenging the state-controlled and operated trade union movement. The Ukrainian legal judicial, trade union and political systems would all conspire to severely persecute me immediately upon forcible repatriation. |
| ... |
| I could never permanently elude the authorities while inside Ukraine. To obtain any job in Ukraine, all citizens must have their Propiska, similar to a citizen registration and government-authorization permit. Upon presenting it I'd be arrested. |
The CRDD decision
[7] The panel heard the applicant in relation to his refugee claim, when he represented himself and the panel was without the assistance of a Refugee Claims Officer present at the hearing. Though the panel's written decision notes the panel was assisted by such an officer, the transcript of the hearing includes a statement of the presiding member that "the panel will not be assisted by a Refugee Claims Officer today". An interpreter competent in Russian and Ukrainian languages was present throughout the hearing.
[8] The panel found the applicant's evidence of the events that transpired aboard the ship of his former employer was credible. However, it found that his fear of persecution if he were returned to the Ukraine was not well-founded:
| Since the panel does not believe that state authorities or anyone else are seeking to persecute the claimant, and based on the totality of the evidence before the panel, the claimant cannot be considered to have a well-founded fear of persecution were he to return to Ukraine. |
[9] In reaching that conclusion the panel's decision sets out its reasons as follows.
| ...the panel does not believe that the claimant has participated in any actions that would cause him to be persecuted. The claimant returned to Ukraine following the arrest of the ship and employer's payment of a fine. Shortly after his arrival home in Ukraine, he received three successive summonses in the mail from the People's Court of Odessa, requesting that the claimant appear at the court as a plaintiff on a criminal matter; namely, a violation by the claimant's previous employer of Article 19 of the Labor Agreement, a contract between the employer and the claimant. The panel pointed out to the claimant on the record that the notices [the summons] are not accusations of charges against the claimant. Rather, they simply require the claimant to appear before the court to provide testimony regarding the offence committed by the claimant's previous employer. There is nothing in these summonses to indicate that the Odessa Union is implicated, or that it is a defendant. It merely requests the claimant present himself regarding the issue of the employer's violation of Article 19 of the Labor Agreements. It is reasonable, therefore, that the state is undertaking regular and legal proceedings to deal with the issue of wrongdoing against the claimant on the part of the previous employer. The state does not seek to accuse or to prosecute the claimant. When the documents were translated, and the actual intent of the documents were subsequently explained to the claimant, his response was "I don't know -- I haven't been there and I don't know the proceedings". Thus, his fear of being unjustly prosecuted, convicted and incarcerated indefinitely is sheer speculation on the part of the claimant. Accordingly, no weight can be attached to his evidence on this point. |
The applicant's argument
[10] When this matter was heard counsel for the applicant described the unusual process of the panel at its hearing, with the applicant appearing for himself, without counsel or other advisor and no Refugee Claims Officer present. In the result, any questioning of the applicant was by the members of the panel directly, a situation that created some confusion, it is said, for the applicant.
[11] In his affidavit, filed in support of the application for judicial review, the applicant refers to this and to his particular confusion when the panel called upon the interpreter to translate the three summonses he had presented, and then explained their purposes as though he were unable to read them in the originals, though they were written in his own language.
[12] The proceedings may have been unusual but the CRDD panel generally has authority to establish its own procedures for a hearing, provided those are consistent with principles of natural justice and fairness. There is no challenge to the hearing process for any particular circumstance that could constitute unfairness in a procedural sense, or that would violate any applicable principle of natural justice. Moreover, the applicant was invited near the close of the hearing to add or to say anything further in relation to his claim. No mention was then made of any concern about the process, and the applicant's only comments were to acknowledge and thank the panel and others who had assisted in preparation for and at his hearing.
[13] It is worth noting, from the record of the panel, including the transcript of the hearing, that all documentary evidence on country conditions in the Ukraine assembled by the Refugee Claims Officer for the panel, was provided to the applicant in advance of the hearing. In addition, the panel had the applicant's P.I.F., a copy of his passport, copies of the three summonses received by him before he left the Ukraine, and he also submitted a copy of an Amnesty International Report, dated December 3, 1996, presumably relating to Ukraine. In sum, it had before it all documentary evidence assembled for its use and all documentary evidence provided by the applicant himself, as in the usual case.
Analysis
[14] In its decision the panel notes that
| The claimant bases his claim on a well-founded fear of persecution in Ukraine on the grounds that the authorities will imprison him for complaining against the Odessa Seamen Trade Union (OSTU). |
[15] In his affidavit in support of his application for judicial review the applicant urges that the panel simply did not understand the interrelations of state, police, the ingrained corruption and the employing authorities in Ukraine, many with links to or presided over by former KGB professionals, and the measures they might take to contain any who protest.
[16] Whether or not the panel fully understood the prevailing circumstances in Ukraine is significant only insofar as the evidence before it described those circumstances. That is, the evidence the panel must turn to in assessing whether there is an objective basis to support the applicant's claim of feared persecution is primarily the documentary evidence provided to it.
[17] Here the documentary evidence before the panel did indicate that corruption and human rights abuses occur in Ukraine. It does not, however, provide any indication that persons in the situation the applicant finds himself in, namely being asked to appear before a tribunal conducting an inquiry or investigating wrongdoing by persons other than the applicant, are at risk of persecution. I note that one of the summons refers to the applicant as a "defendant". Nevertheless, this summons, like the others, appears to deal with the Labour Agreement contract, and cannot, on its face, be viewed as indicating that the applicant is being prosecuted for a criminal offence. The applicant may fear that these summons issued to him are merely a pretext. However, this view is not supported by the documentary evidence submitted by the applicant or otherwise before the panel.
[18] The panel notes the applicant's response when it explained the intent of the summons documents as it understood that intent. He did not then protest the panel's failure to understand either the proceedings to which he had been summoned or the risks he perceived if he were to respond as those documents directed. Rather, he said he did not know and did not know the proceedings.
[19] On the basis of the evidence presented to it the panel could find, as it did, that the applicant failed to establish an objective basis for his fear of persecution and thus his fear was not well-founded.
[20] I am not persuaded that the panel erred, Thus the Order issued, dismissing the application for judicial review and for an Order setting aside the impugned decision.
[21] Counsel did not propose any serious question of general importance for consideration for certification pursuant to s-s. 83(1) of the Immigration Act and no question is certified.
Judge
OTTAWA, Ontario
July 7, 1998.