Date: 20010821
Docket: IMM-2801-00
Neutral Citation: 2001 FCT 925
BETWEEN:
STEPAN KEVORKYAN, LARISSA KEVORKYAN
and MIKAEL KEVORKYAN,
Applicants,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
MacKAY J.:
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, and s. 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, and for an order setting aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Panel") dated May 8, 2000, wherein the Panel denied the applicants' claim to be Convention refugees.
Facts
[2] The principal male claimant, his wife and their minor son are seeking Convention refugee status on the basis of persecution on the grounds of political opinion and nationality. The male claimant, Stepan Kevorkyan, is an Armenian national. His wife, Larissa Kevorkyan, is ethnically Russian. They are both citizens of Kazakhstan, as is their infant son.
[3] The facts, as found in the decision of the Panel, are as follows:
The evidence in this claim, as contained in the Personal Information Form and the oral testimony of both the male claimant and the principal female claimant is that they were married in 1992 in Kazakhstan, moved into an apartment together and that's when their problems began when the apartment became a subject of controversy. They made a down payment on it of $5,500 U.S., signed a contract with a state notary and prepared to move in. At that time, the owner of the apartment, a man by the name of Mambetov would not let them take possession. Finally, things escalated to a point where Mambetov allegedly beat the principal male claimant severely, that he threatened the principal female claimant, that Mambetov's parents went to her place of work to threaten her and things escalated to the point where they were told that if they did not release the apartment they would be killed. Because of that the principal male claimant and his wife came to Canada where they sought asylum.
[4] The facts, as outlined in the affidavits of the applicants, differ from those found by the Panel. The principal applicants did marry in 1992, but the problems with Mambetov did not begin until August, 1994. For a period after their wedding, the applicants claim they were harassed by Kazakh nationals to sell their apartment for a cheap price. They claim the pressure to sell became so intense that they were harassed night and day, threatened when they entered their building and eventually feared for their lives after the female applicant suffered a miscarriage resulting from a physical altercation with Kazakh nationals. Ultimately, in an attempt to preserve their safety, they decided to sell the apartment for much less than it was worth.
[5] Once the applicants sold their apartment in 1993, they rented another. After realizing they could not continue to rent, they decided to purchase an apartment. That was when they became involved with Mambetov, and the violent extortionist behaviours that followed.
[6] In their affidavits, the applicants also assert the female applicant had been the victim of a violent attack in which she received numerous stab wounds in 1991, and both applicants knew of harassment directed towards the father of the principal male applicant. In each instance the police were informed, with no apparent action taken by them. Although it is not certain that all the events described by the applicants resulted from national or political oppression, these incidents were presented as illustrations of persecution suffered, not as incidents related to the problems with Mambetov. These incidents the Panel found to be exaggerated or fabricated for the purpose of enhancing the applicants' refugee claims, though it did not set out reasons for not accepting their testimony.
Submissions of the Applicants
[7] The applicants submit that the Panel made a number of errors that did or could have led them to make erroneous assumptions or negative inferences against them. It is their position that the Panel repeatedly misstated facts which raises concerns regarding the Panel's attention to detail in light of the evidence adduced. The applicants argue that reliance by the Panel on misstated facts leads to a capricious and perverse finding that is subject to review.
[8] It was further submitted that, in its reasons, the Panel failed to specifically consider evidence that supports the claims of the applicants. The applicants urge the Panel has a duty to consider all the evidence before it, a duty recognized by the Federal Court of Appeal decision in Hassan v. Canada (MEI) (1992), 147 N.R. 317 (C.A.), and the Federal Court Trial Division decision in Galiano v. Canada (MCI) December 9,1996, IMM-848-96 (T.D.). The applicants submit that if a claimant presents evidence, either in viva voce form or by way of documentation, that corroborates the claims made, the Panel must consider it. Moreover, should the Panel ignore or fail to give regard to important evidentiary matters the decision will be vitiated due for reviewable error.
[9] Finally, relying on the well-settled principle that a Panel must put any negative inferences to an applicant to permit a rebuttal or explanation, the applicants assert this was not done, an oversight constituting reviewable error. The applicants say that the Panel failed to present them with an opportunity to explain any negative inferences or uncertainties perceived by the Panel.
Submissions of the Respondent
[10] The respondent submits that the applicants failed to meet the threshold, ie., the onus to establish, on a balance of probabilities, that they are credible and that a sufficient nexus exists between the definition of "Convention refugee" and their claim to fear persecution.
[11] With respect to the issue of credibility, the Panel found:
The Panel does not doubt that there were some problems with an apartment and a man named Mambetov, but it is clear on the issue of credibility that the problems have been exaggerated and in some cases fabricated to enhance the claim.
The Panel determined that, on the basis of credibility, the applicants cannot be considered Convention refugees.
[12] Regarding the nexus issue, the Panel held: "credibility concerns aside, the Panel finds that there is no nexus to the definition of a Convention refugee". The Panel found that although the applicants had suffered due to the activities of Mambetov, there was no evidence to suggest it was the result of national or political persecution. In analysing the testimony of the applicants in relation to the abuse suffered, the Panel held:
We believe that what we heard was exaggerated, in some sense fabricated. But even if it was not exaggerated or fabricated, it is clear that what we have does not come under the umbrella of the 1951 Convention on Refugees. There is no link to the definition. It is a criminal act.
Thus, the ultimate finding determined that the harassment claimed by the applicants does not constitute persecution within the definition required by the Immigration Act, rather it resulted from criminal activity.
Issues
[13] The applicants raise three issues:
1. Did the applicants present evidence that was credible and plausible in light of all the evidence before the Panel? And, if not, did the Panel explain why it was not considered to be credible?
2. Was the decision based upon erroneous findings of fact and not based on the evidence before the Panel?
3. On a balance of probabilities, have the applicants established the necessary nexus between the harassment suffered, assuming it could constitute persecution, and any recognized Convention ground for the granting of refugee status?
[14] With regard to the issue of credibility findings, I find it necessary to address the Panel's conclusions that were based on misapprehension of the facts. After reviewing the materials that were before the Panel, I note there are a number of statements of fact by the Panel in its decision which do not appear to be supported by the evidence.
[15] First, the Panel disregarded evidence that the applicants suffered harassment and persecution by Kazakh nationals and were forced to sell their first apartment as a result. This occurred in 1992-93, and was unrelated to the incidents involving Mambetov. The reasons indicate the Panel failed to consider these prior incidents, and attributed all the harassment suffered by the applicants to Mambetov. However, the troubles with Mambetov only began when the applicants purchased an apartment from him in August, 1994.
[16] There are also misstatements of fact related to the resignations of the applicants from their employment. Both the principal male applicant and the principal female applicant stated in both of their affidavits that they had to quit their jobs as a result of Mambetov's persecution. Yet, in its reasons, the Panel determines that the applicants' credibility is questionable because its understanding of the written P.I.F.'s was that the female applicant was forced to quit her job, but this was changed at the hearing, when assisted by her testimony she indicated that she quit voluntarily.
[17] The Panel also found that the applicants' testimony relating to their report to police of the verbal attack on the female applicant at her workplace by Mambetov's father is implausible, for it concerned a relatively minor incident, when more serious incidents had not been reported. The claim itself was considered implausible. The implausibilities were related to the "chaotic" and "unstable" political environment in Russia today. The applicants were residing in Kazakhstan and their refugee claim was in relation to that country. A finding of implausibility because of conditions related to a country other than that of concern to the applicants is unreasonable, and seriously calls into question the remainder of the Panel's findings of fact.
[18] The respondent urged that any misstatements of fact were minor and not central to the ultimate issue determined.
[19] With respect to the nexus issue, the Panel determined the applicants failed, on a balance of probabilities, to establish that the activity by which they were victimized, which the Panel characterized as criminal, amounted to persecution on the basis of nationality, political opinion or any other Convention ground.
[20] S-s. 2(1) of the Immigration Act requires that to be classified as a "Convention refugee" an applicant must have a "well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion" should she or he be forced to return to the country of nationality or habitual residence which the applicant fled.
[21] It is also a well-established principle that if the incidents experienced constitute a crime and not persecution as required by the Immigration Act, they cannot form the foundation for a claim of a "well-founded fear of persecution" (Porto v. Canada (Minister of Employment and Immigration), September 3, 1993, A-1549-92 (T.D.)). As was noted by Justice Teitelbaum in Alifanova et al. v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 206 (T.D.), if the fear of the applicant stems from a crime or criminal acts, there can be no nexus between that fear and the reasons recognized under the Convention. As was stated at paragraph 26 of his reasons: "... not all criminal acts can be considered as acts of persecution. ... Because these criminal acts are made by Kazakhs against Russians does not make the act one of persecution".
[22] Although the principal male applicant and the principal female applicant presented both oral and written evidence of previous experiences of intimidation and harassment, the bulk of their claim rests on persecution suffered at the hands of Mambetov.
[23] The applicants attempted to rely upon political and national bases for their claim through the link with Mambetov's parents, in particular his father who is allegedly highly placed politically. He is said to have harassed and threatened the female applicant at her work. However, this is not enough to establish political opinion as grounds for refugee status. As held in Calero v. Canada (Minister of Employment and Immigration), August 8, 1994, IMM-3396-93 (T.D.), and quoted in Serrano v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 227 at para. 24 (T.D.): "... victims of organized crime do not constitute a particular social group and therefore there is no nexus between the fear of persecution [ie., criminal activity] and a Convention ground". Moreover, in Mia v. Canada (Minister of Citizenship and Immigration), January 26, 2000, IMM-2677-99 (T.D.), the Court found at para. 18: "The mere fact that a perpetrator is a government official does not change per se the acts into persecution".
[24] In order to establish if actions undertaken by an individual are politically motivated or are mere criminal behaviour one must consider whether the government is tied to the alleged behaviour in such a manner that to challenge the activity would be seen as a threat to the government's authority. If such a connection cannot be established, then the behaviour may constitute criminal activity, but it has no nexus with Convention grounds (see Serrano, supra).
[25] In the circumstances of this case, whether or not Mambetov's father actually was a high-ranking government official is irrelevant. He was not acting in a political capacity, and the state itself was not engaged in criminal conduct where one would be unable to distinguish the actions of the individual from those of the state. Although the applicants urge that the police refused to provide protection on several occasions, the Panel concluded that the evidence was inconsistent in this regard. It found that no nexus with respect to political grounds was established.
[26] The applicants claim the incidents of harassment that occurred between 1992 and 1994, unrelated to the issues with Mambetov, were motivated by ethnic discrimination. The Panel determined that they were unable to provide supporting evidence nor to testify at the hearing to this activity as one in which the state was involved.
[27] Political opinion and nationality were the two Convention grounds advanced by the applicants for their claim. The Panel concluded that, even if their story was accepted as true, the persecution feared by the applicants is of a criminal nature, and no nexus exists between the conditions the applicants experienced and the grounds required under the Convention for a claim to refugee status.
[28] In its conclusions, the Panel stated:
Credibility concerns aside, the Panel finds that there is no nexus to the definition of a Convention refugee. There was some suggestion that the link would be nationality, that what the claimants allegedly suffered was due to their nationality. But this question was asked a number of times and neither of the principal claimants suggested that was the case. For example, in response to why this was happening to them, both of them suggested it might be because they were witness to illegal acts, the expropriation of their apartment. When asked directly by counsel if nationality played a part in their troubles the answer was "it is hard to say". It is clear to the Panel that the motive behind the attempted extortion of their apartment was for material gain, unrelated to nationality.
There is therefore no link to the definition on the grounds of nationality. It is also clear to the Panel that there is no link to the definition on any other Convention grounds.
Conclusion
[29] The Panel's erroneous findings and misstatements of fact formed the basis for their determination that the testimony of the applicants lacked credibility. In numerous cases that would warrant the intervention of the Court. In this case, the Panel held that even if the applicants' story were accepted, no nexus existed between the persecution suffered and recognized Convention grounds. Thus, any persecution the applicants were subjected to was of a criminal nature, and was not persecution within the Convention.
[30] I am not persuaded that the Panel's ultimate conclusion can be said, on the evidence before it, to be unreasonable. Thus, the Court has no basis to intervene and an order goes dismissing the application for judicial review.
Question for Certification
[31] Subsequent to the hearing of this matter, counsel for the applicants submitted the following question for certification pursuant to s-s. 83(1) of the Immigration Act.
Where a Tribunal has been found to have erred in its assessment of a significant portion of the evidence before it, can this Honourable Court uphold any portion of the Tribunal's decision which relies on any finding of fact?
[32] In my view, this is not "a serious question of general importance" raised by this case. The ultimate determination of the Panel, as I read its decision, is that even if the applicants' evidence were to be accepted as true, their perceived persecution was not within Convention grounds for there was no evidence of state complicity in the actions giving rise to their claims. Thus, I decline to certify the question proposed.
(signed) W. Andrew MacKay
______________________________
JUDGE
Ottawa, Ontario
August 21, 2001.
Date: 20010821
Docket: IMM-2801-00
OTTAWA, Ontario, this 21st day of August, 2001.
PRESENT: The Honourable Mr. Justice MacKay
BETWEEN:
STEPAN KEVORKYAN, LARISSA KEVORKYAN
and MIKAEL KEVORKYAN,
Applicants,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
UPON application for judicial review of, and an order setting aside, a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated May 8, 2000, whereby the applicants' claim to be Convention refugees was denied;
UPON hearing counsel for the parties in St. John's, Newfoundland, on April 12, 2001, when decision was reserved, and upon consideration of submissions then made;
ORDER
THIS COURT ORDERS that the application is dismissed.
(signed) W. Andrew MacKay
_____________________________
JUDGE