Date: 20020524
Docket: IMM-3727-01
Neutral citation: 2002 FCT 589
BETWEEN:
TATYANA ALESHKINA,
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] Tatyana Aleshkina is a 22 year-old citizen of Kazakhstan and is of Russian nationality. She claims a well-founded fear of persecution on grounds of social group and political opinion as a member of an alleged anti-government political activist's family. She seeks judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) dated July 3, 2001 which found the applicant not to be a Convention refugee.
[2] Prior to the events giving rise to her departure from Kazakhstan, Ms. Aleshkina was a medical student. Her mother, an English teacher, lived with the applicant's father and brother.
[3] The applicant's brother became involved with anti-government activity in 1998 when he started law school. As a member of the Republican People's Party, he worked actively against the government during the January 1999 elections and expressed anger and frustration with the election results. After the death of the applicant's father in July, 1999 and without his steadying influence, the brother became increasingly more outspoken and critical of the President. He purchased a computer and began to use the internet. The applicant believed this internet use related to his political activities. In March, 2000 the brother moved out of his mother's apartment.
[4] The applicant, on April 2, 2000, went to her mother's apartment and found several policemen there. One of the officers insisted that the applicant accompany him to his office where she was interrogated regarding her brother's whereabouts, associates and activities. The interrogation lasted for about two hours and the applicant was slapped on the cheek and head. Before releasing her, the officer told her that she was to obtain and provide information about her brother. If not, she would incur "much more serious results the next time". Following this incident, the applicant began staying with her mother at her mother's apartment.
[5] On April 30, 2000, the police returned, during the night, to the apartment. They conducted a search and questioned the applicant about her brother. Police officers shoved papers in the applicant's face and told her that they were internet papers and had originated from her brother's computer. When the applicant was unable to reveal her brother's whereabouts, the police accused her of being a Russian nationalist and of supporting and protecting her brother. The police warned the applicant to tell her brother that he should hand himself in, otherwise they would take the applicant and her mother.
[6] Ms. Aleshkina and her mother decided that they must leave the country and on June 22, 2000, they left Kazakhstan for Russia, travelling by train. The mother remained in Russia and the applicant travelled on to Canada and claimed refugee status. As stated previously, the CRDD determined that Ms. Aleshkina was not a Convention refugee.
[7] The applicant submits that the reasons of the CRDD are inadequate and primarily constitute a recitation of the applicant's evidence. During the CRDD hearing, the applicant submitted facsimile copies of summonses requiring her to attend at Soviet ROVD in Kazakhstan for questioning. The applicant takes issue with the failure of the CRDD to attach any weight to the summonses and says this finding was clearly wrong. Additionally, the applicant submitted documentary evidence relating to: the treatment in Kazakhstan, of individuals engaged in anti-government activities; her brother's Republican Party membership card, and a letter confirming her brother's membership in the Republican People's Party of Kazakhstan. The applicant argues that it was wrong for the CRDD to conclude that her brother would not be persecuted because he did not have a high profile as a political dissident. If the CRDD had properly assessed her documentary evidence, the applicant claims the objective test regarding well-founded fear of persecution would have been satisfied. Lastly, the applicant maintains that since the CRDD did not find that she was not credible, her evidence of the detention, interrogation, accusations and threats should have been considered as evidence in support of a finding of objective fear of persecution.
[8] The respondent submits that the determinative issue in the decision of the CRDD was the lack of an objective basis to the applicant's claim specifically, that she faced no serious possibility of persecution on the basis of her brother's membership in an opposition political party. Regarding the summonses, the respondent says that the CRDD did not find the claimant's evidence credible in this respect. The respondent also submits that the documentary evidence was reasonably assessed and that it did not suggest that members of opposition political parties faced a serious risk of persecution. The respondent further submits that the applicant failed to establish that her brother's profile was anything more than a member of an opposition party. Finally, the respondent submits that the issue before the CRDD was the well-foundedness of the applicant's claim, not that of her brother, and there was no documentary evidence to indicate that relatives of opposition party members faced any serious risk of persecution.
[9] The test to establish fear of persecution is bipartite. The claimant must subjectively fear persecution and this fear must be well-founded in an objective sense: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.).
[10] The CRDD accepted that the applicant had demonstrated a subjective fear of persecution. At the outset of its analysis, the CRDD stated:
Is there an objective basis for the claimant's fear of returning to Kazakhstan?
[11] Regarding the summonses, the CRDD stated:
After the claimant and her mother left for Russia, the claimant said that she, her brother and her mother, each, received two summonses to attend at the Department of Internal Affairs for questioning. These items were faxed to the claimant, and none of them has a date of issue. I give no weight to this evidence and do not find the claimant's allegation that the family has been summoned by the police for questioning to be credible.
[12] The applicant's argument with respect to the summonses is that there was no apparent space on the document to insert a date of issue therefore it was clearly wrong for the CRDD to reject the evidence for that reason. The respondent argues that notwithstanding that the documents were allegedly issued some 10 months prior to the hearing, the applicant did not produce them for inspection and the CRDD was entitled to consider that fact as well as the fact that the documents were not dated.
[13] The assessment of weight to be given documents is a matter within the discretion of the tribunal assessing the evidence. Huang v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 178, Boye v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 1. It is not for the Court to substitute its view of the facts for that of the Board which has the benefit of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
[14] It was open to the CRDD to determine what weight, if any, to be given to the summonses. It provided reasons for its decision and I do not share the applicant's view that the result was clearly wrong. Even if the summonses had been given greater weight, they do not go to the crux of the decision.
[15] In this respect, the finding of the CRDD that only high profile political activists were reported to have problems and the finding that the applicant's brother did not fit that profile were critical to the applicant's claim.
[16] The analysis of the CRDD in this regard is contained in the following paragraph:
The claimant said her brother is a member of the Republican People's Party and produced both a letter and membership card attesting to this. She was unable to tell the panel exactly what her brother's role in the party was. She said he did not have a leadership role in the party and knew no details of his activities. Counsel submitted evidence that indicates some individuals, who are actively engaged in working against the government, have problems. However, these individuals have a high profile. There is no evidence before the panel that the claimant's brother had such a profile. The claimant had no examples of what he allegedly sent through the Internet; nor did she have any knowledge of what he wrote. The panel finds that even if the claimant's brother were a member of the Republican People's Party, that alone is insufficient to enable the panel to find that he would be persecuted because of his party membership. The panel finds that the claimant's brother did not have a high political profile that would be significant enough, based on the claimant's evidence, for him to be targeted as she has alleged. By extension, she would not be targeted either; especially, since she testified that neither she nor her parents were members of a political party.
[17] The documentary evidence, when assessed in its totality, indicates that it is high profile political activists and leaders who are generally targeted by the authorities. Applicant's counsel suggests that the press tends to report incidents involving high profile people, which, is not an indication that others are not targeted. There is nothing before me to sustain that argument. A review of the transcript indicates that the CRDD repeatedly invited the applicant to provide more detail in relation to her brother. The applicant was not able to provide any information with respect to her brother's role or activities but she did say that he did not have a leadership role. The only evidence indicating that the brother might be a target was the applicant's evidence regarding her experiences on April 2 and April 30, 2000. After considering the totality of the evidence, the CRDD was unable to conclude that the applicant's brother would be targeted. The finding was not unreasonable. The CRDD is entitled to rely on documentary evidence in preference to that of the claimant: Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (C.A.).
[18] Having found that the applicant's brother would not be targeted, the CRDD stated:
By extension, she would not be targeted either, especially, since she testified that neither she nor her parents were members of a political party.
That conclusion was proper and correct. Family connection is not an attribute requiring Convention protection, in the absence of an underlying Convention ground for the claimed persecution: Serrano v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 227, Gonzalez v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 456.
[19] The remaining issue to be addressed is the applicant's argument regarding the adequacy of the reasons of the CRDD. This issue was addressed by Teitelbaum J. in Li v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 413 citing Syed v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 283:
The function of written reasons is to allow an individual adversely affected by an administrative tribunal's decision to know the underlying rationale for the decision. To that end, the reasons must be proper, adequate and intelligible and must give consideration to the substantial points of argument raised by the parties . . . The Refugee Division is obligated, at the very least, to comment on the evidence adduced by the applicant at the hearing. If that evidence is accepted or rejected, the applicant should be advised of the reasons why.
[20] The CRDD identified the issue, summarized the applicant's oral evidence in detail, considered the documentary evidence, assessed and weighed the value of the documentary evidence, stated its findings and its reasons therefore. Based on its findings, it made a decision. The requirement regarding adequacy or sufficiency of reasons was met.
[21] In the result, the CRDD determined that the applicant did not satisfy the onus to provide evidence that she came within the definition of Convention refugee. For the reasons given, I find no reviewable error. Therefore, the application for judicial review is dismissed.
[22] Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of the Immigration Act.
___________________________________
Judge
Ottawa, Ontario
May 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3727-01
STYLE OF CAUSE: Tatyana Aleshkina v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 2, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
DATED: May 24, 2002
APPEARANCES:
Mr. David Yerzyfor the Applicant
Mr. Matthew Oommenfor the Respondent
SOLICITORS ON THE RECORD:
Mr. David Yerzyfor the Applicant
Toronto, Ontario
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada