Date: 20000830
Docket: IMM-4140-99
CALGARY, ALBERTA, AUGUST 30, 2000
BEFORE: TEITELBAUM J.
BETWEEN:
Alexandre AVERINE
Larisa AVERINA
Plaintiffs
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
For the reasons stated in the Reasons for Order, the application for judicial review is dismissed.
|
Max M. Teitelbaum J.F.C.C. |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000830
Docket: IMM-4140-99
BETWEEN:
Alexandre AVERINE
Larisa AVERINA
Plaintiffs
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
TEITELBAUM,J :
INTRODUCTION
[1] This is a judicial review of a decision of the Refugee Division of the Immigration and Refugee Board ("the panel"). By its decision dated July 27, 1999, the panel found that the plaintiff was not a Convention refugee.
FACTS
[2] The plaintiff fears persecution on account of his Russian nationality and alleged political opinions.[1] His wife based her claim on her membership in a particular social group, the family.
[3] The plaintiff and his wife are Russian citizens. In 1992, they were living in the Republic of Georgia when a civil war broke out between Georgian forces and the secessionist region of Abkhazia.
[4] In 1996, the plaintiff was allegedly seized by Abkhazian nationalists and sent to Chechnya for forced labour. During his captivity, the plaintiff said he heard Chechnyans mentioning the names of two officers in the Russian army with whom they were trafficking in war materiel. The plaintiff escaped and rejoined his family in Kalouga, Russia in the spring of 1998. It should be noted that from the spring of 1998 onwards the plaintiff was no longer in Chechnya.
[5] The plaintiff said he then communicated the information he had about the illegal arms trafficking to the military authorities in Moscow. When he returned to Kalouga, the plaintiff testified that he escaped an initial attempt on his life. He was subsequently subjected to telephone harassment and escaped a second attempt when his wife allegedly opened the door to a woman whom she thought was her neighbour.
PANEL'S DECISION
[6] The panel found that the claimant feared reprisals because of what he knew, not because of his race, religion, nationality, political opinions or membership in a particular social group.
[7] Consequently, the panel concluded that the plaintiff was unable to establish that he was a Convention refugee.
ARGUMENTS AND ANALYSIS
[8] Section 2(1) of the Immigration Act[2] reads as follows:
| "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act . . . |
« réfugié au sens de la Convention » "Convention refugee" « réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. "Convention refugee" « réfugié au sens de la Convention » |
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[9]In the case at bar, the defendant based his claim on two grounds: his Russian nationality and/or his political opinions.
Persecution on account of nationality
Arguments
[10] The plaintiff maintained that the panel erred in law by not taking into account all the evidence, in particular that the plaintiff was persecuted in Chechnya, an integral part of Russia, because of his Russian nationality.[3]
[11] The defendant argued that the panel did consider the events in Chechnya, having specifically referred to the plaintiff's captivity.[4] In any event, the defendant cited Nthoubanza v. M.C.I.,[5] in which this Court pointed out that the panel need not mention every fact alleged by a claimant.[6]
Analysis
[12] I do not think the plaintiff's nationality is significant in this case. The plaintiff was apparently persecuted on account of his Russian nationality when he was in Chechnya. Having said that, his departure from that area terminated this persecution. Once he was in Kalouga, it is clear that his Russian nationality was not the factor that made him a target for attempts on his life. The plaintiff readily admitted that the attempts on his life were because of the information he had about arms trafficking.[7]
Persecution for reporting offence (alleged political opinion)
Arguments
[13] The plaintiff repeated his story, that he had reported the existence of corruption in the military,[8] that following that report he was a target of several attempts on his life[9] and that the Russian authorities offered him to protection.[10]
[14] The defendant argued that the plaintiff should have established a connection between his fear of persecution and one of the five grounds mentioned in the definition of a refugee.[11] This finding is a question of fact and is therefore entirely within the panel's expertise.[12]
[15] The panel's conclusion that the plaintiff had not established this connection may be reasonably inferred from the evidence submitted.[13] In this regard, the defendant
referred to Marvin[14] and Mehrabani,[15] cases similar to the one at bar in which the panel found that the reporting of criminal acts did not constitute a political opinion.
[16] Rizkallah gave a clear statement of the requirement which a claimant must meet:
To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason.[16]
[17] A political opinion may in fact be expressed by actions.[17] However, the plaintiff's actions in this particular case do not appear to constitute political opinions, but rather acts that led to reprisals from certain individuals.
[18] The cases cited by the defendant support this contention. In Marvin,[18] Joyal J. said the following:
. . . it is hard for me to find that the applicant had a political opinion within the meaning of the definition stated by the courts. Although a political opinion can be reflected in action the reporting of drug traffickers is more of a criminal nature.
[19] In Mehrabani,[19] Rothstein J. affirmed the panel's conclusion, the latter having said that [TRANSLATION] "the perpetrators of the wrongful acts feared by the applicant were not trying to cause him harm because of his political opinions, but because he had evidence against them regarding their criminal activities".
[20] In Ahmed,[20] Pinard J. recently rendered a decision in which he said:
The principal applicant's testimony indicates that he was targeted by men whom he himself had prosecuted, rather than by men who were tried by other assistant public prosecutors. Therefore, the persecution was based on his actions, rather than on his political opinion or his membership in the group. Furthermore, it has been established that "[t]he fear of personal vengeance is not a fear of persecution." In this context, I do not think that the Board erred in law when it concluded that the principal applicant was not persecuted due to his political opinion and membership in a particular social group.
[21] Dalia Maria Vieras Palomares[21] deals with a legal principle identical to the one at issue. Pelletier J. said the following in paras. 7, 8, 12 and 15:
[7] CRDD heard the applicant's claim on November 19, 1998 and rendered a decision dated December 1, 1998 in which they concluded that the applicant was not a refugee because she was not being persecuted for one of the five grounds provided for in the United Nations Convention on Refugees. They found that she was the victim of criminal activity which was unrelated to any of the grounds on which refugee status can be claimed.
[8] The applicant brings this application for judicial review on the basis that the CRDD ought to have considered her claim on the following basis:
1 - the criminals were members of the military forces.
2 - despite the fact that she was able to identify one of them, nothing concrete came of the investigation.
3 - after she identified one of the criminals, the attacks on her life began.
4 - these two facts suggest that the military were colluding with the criminals so that the applicant is the victim of state action.
[12] The same is true here. There is no evidence that the treatment to which the applicant was subjected was because of membership in a group. On the contrary, she is the object of violence because of a very personal characteristic, her ability to give evidence which could lead to a prosecution. Furthermore, there is no issue of association for reasons "fundamental to human dignity" in her conduct.
[15] It is my view that these elements of proof do not suffice to establish the nexus which is required for refugee status. While denouncing corruption can be a political act, not every brush with corruption amounts to a political act or is perceived by the corrupt as a political act. The risk to which the applicant is exposed arises from her status as a witness to a crime. Even if members of the state apparatus are involved, the fact of making a complaint does not necessarily involve political action, nor does it mean that the complaint will be seen by them as political action. It is difficult to speculate as to why the authorities did not act upon the applicant's identification but while corruption is one possible reason, mistaken identity is another. As for the attempts on her life, the perpetrators knew where she worked. It would not require official collaboration for them to locate her home. Simple surveillance would do. This is not to minimize the applicant's fears but to point out that the link with state sanction or collusion is weak. For these reasons, the CRDD's determination was not unreasonable and the application for judicial review must be dismissed.
[22] As Pelletier J. said in Palomares, "This is a classic case of a person being at the wrong place at the wrong time".
[23] In the instant case, the plaintiff was at the wrong place at the wrong time when he heard a conversation about illegal arms trafficking.
CONCLUSION
[24] The panel's conclusion that the plaintiff was unable to establish a link between his persecution and one of the five grounds listed in the definition of a "refugee" is supported by the evidence and consistent with the precedents laid down by this Court.
[25] The application for judicial review is dismissed.
[26] No question was submitted for certification.
|
Max M. Teitelbaum J.F.C.C. |
Calgary, Alberta
August 30, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20000830
Docket: IMM-4140-99
Between:
ALEXANDRE AVERINE
LARISA AVERINA
Plaintiffs
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-4140-99
STYLE OF CAUSE: ALEXANDRE AVERINE
LARISA AVERINA
Plaintiffs
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 25, 2000
REASONS FOR ORDER BY: TEITELBAUM J.
DATED: August 30, 2000
APPEARANCES:
Jacques Beauchemin for the plaintiff
Lisa Maziade for the defendant
SOLICITORS OF RECORD:
ALARIE, LEGAULT, BEAUCHEMIN, for the plaintiff
PAQUIN, BRISSON & PHILPOT
Montréal, Quebec
Morris Rosenberg for the defendant
Federal Department of Justice
Montréal, Quebec
[11] Defendant's memorandum, para. 9, citing in support Rizkallah v. M.E.I. (1992), 156 N.R. 1 (F.C.A.); Sajous v. M.E.I., [1993] F.C.J. No. 1179, A-1588-92, November 12, 1993 (F.C.T.D.) and Cutuli v. M.E.I., [1994] F.C.J. No. 1156, IMM-36-93, May 25, 1994 (F.C.T.D.).
[12] Defendant's memorandum, para. 11, citing in support Leon v. M.C.I., [1995] F.C.J. No. 1253, IMM-3520-94, September 19, 1995 (F.C.T.D.); Ciobanu v. M.C.I., [1999] F.C.J. No. 117, IMM-1101-98, June 28, 1999 (F.C.T.D.).
[14] Marvin v. M.C.I., [1995] F.C.J. No. 38, IMM-5033-93, January 10, 1995 (F.C.T.D.); defendant's memorandum, para. 26.
[15] Mehrabani v. M.C.I., [1998] F.C.J. No. 427, IMM-1798-97, April 3, 1998 (F.C.T.D.); defendant's memorandum, para. 27.