Date: 20030303
Docket: IMM-4350-01
Neutral citation: 2003 FCT 270
BETWEEN:
VITALI PAPSOUEV, MARINA PAPSOUEVA,
JULIA PAPSOUEVA, DARIA PAPSOUEVA, through
her litigation guardian MARINA PAPSOUEVA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board (the "Board") determining that the applicants, Vitali Papsouev, Marina Papsoueva, Julia Papsoueva, Daria Papsoueva, are not Convention refugees.
Background Facts
[2] The applicants, Marina Papsoueva, Julia Papsoueva and Daria Papsoueva, are citizens of Russia who claim to be persecuted in Russia because they are Jewish. The applicant, Vitali Papsouev, who based his application on the facts outlined in his wife's Personal Information Form ("PIF") also fears persecution for his perceived political opinion and because as a wealthy businessman, he is an easy target for extortion. The female applicant, Marina Papsoueva, is also the designated representative for their daughters, Julia Papsoueva and Daria Papsoueva.
[3] The applicants first claimed Convention refugee status on July 14, 1995. On October 13, 1997, the Board determined they were not Convention refugees. This decision was judicially reviewed by the Federal Court, Trial Division and was sent back for redetermination by an order dated May 19, 1999. The hearing de novo took place on 21 occasions, from November 17, 1999 until April 17, 2001. The decision was rendered on August 20, 2001 and is the decision presently under review.
[4] The applicants moved to Moscow in 1982. In 1990, there was a rise in anti-Semitism in Russia whereby anti-Semitic groups openly harassed and persecuted Jews. In January 1991, the applicants began receiving threatening phone calls and letters. In September 1991, a group of men forced their way into the applicants' apartment, vandalized the apartment, destroyed the furniture, and threatened and beat the female applicant in front of her daughters. After the incident, the police came, but did not pursue an inquiry. One of the daughters had to receive psychiatric treatment following this incident.
[5] In February 1992, the female applicant and her children were approached on the street by two men who insulted her, hit her twice in the face and threatened that if she did not leave the country, they would kill her and her family. She again called the police, but they still did not make any formal investigation.
[6] The male applicant is a wealthy businessman who, in Moscow, did business with the Jewish community. He had many important connections and says he helped make business deals happen. In his testimony, the male applicant alleged that he received at his place of business and at his home, threatening telephone calls and letters, one of which was an attempt to extort money. It is also alleged that armed men came into his office, pointed their guns at him, tied everyone up, and stole a large sum of money from the safe.
[7] The adult applicants left Russia in August 1992 and came to Canada without their children in order to prepare the way for their ultimate departure from Russia. They met with a lawyer who advised them to apply for permanent residency through Detroit. In September, the applicants returned to Russia and applied for visas. The male applicant did not stay very long, as he came back to Canada on September 24, 1992. The other applicants arrived in Canada on December 9, 1992.
The Board's Decision
[8] Generally, it was determined by the Board that the applicants had not established that there was a serious possibility that they would be subject to persecution if they were to return to Russia. The Board found that the conduct of the applicants had been substantially inconsistent with having a subjective fear of persecution when they departed for Canada. It was also found that the incidents of harm alleged to have taken place in the early 1990s did not occur and if they had, would not have created the fear alleged.
[9] The Board accepted that the female applicant is Jewish, although a minor and secular participant. For example, the board noted that she only attends the synagogue two to three times a year. Her daughters were found to be even lesser participants. The applicants did not claim that their minimal participation in Jewish religious and communal life is related to any attempt to keep a low profile in order to limit being targeted as a Jew. Instead, they partake in the practice of their religion to the fullest degree they wish.
[10] The Board believed that Julia had psychiatric counselling. However, the document submitted only confirmed the fact that she had had counselling and not the actual incident that caused her to need the treatment.
[11] The Board admitted into evidence the testimony of Sergeant King as an expert on the investigation of Russian and Eastern European organized crimes. This witness characterized the male applicant as an "inactive member" of an organized group based on a variety of information. The information was obtained through an interview with the applicant, financial investigation, informant evidence, wiretap and surveillance of others during which the applicant was recorded talking and referring to persons suspected by the RCMP of being involved in organized crime. The evidence was such that it was not enough for the Minister's counsel to move to have the applicant excluded from the Convention refugee process.
[12] The applicants challenged the entry and use of informant evidence in this case because the sources of the evidence were not revealed. The Board received the evidence, justifying that the discretion to discard or view evidence is the Board's to exercise. It further pointed to section 68.(3) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act").
[13] Conclusions of credibility and implausibilities that relate to the applicants' conduct being inconsistent and unreasonable considering their alleged fear of persecution included the following:
1. The consultation with the lawyer advising them to apply for permanent residency establishes neither the occurrence of the incidents alleged, nor the existence of any fear.
2. During the anti-Semitic campaign, the applicants' conduct was not reasonable as they did not take any security measures to protect themselves and their children at home.
3. The female applicant opened the door of the apartment to the attackers without any precautions at a time when they received telephones threats.
4. The male applicant left his family unprotected.
5. The applicants left their daughters at their grandmother's apartment when they left the country, while they also alleged their fear of cases of kidnapping in Moscow as a means of extortion.
6. The male applicant came to Canada with a political associate in December 1991 and did not seek refuge.
7. The male applicant knew about the reports in the newspaper that there were many incidents such as the office attack, yet as a successful businessman having money in a safe in his office, he would maintain unprotected and unsecured premises.
[14] Throughout the decision, the Board also refers to different omissions and discrepancies between the applicants' testimonies and PIFs, which were not satisfactorily explained to the Board.
[15] The Board also found that the male applicant alleged, but did not establish, that he had reason to fear serious harm at the hands of Tochtachunov, a man suspected to be an organized crime leader who lost a large sum of money which he had deposited in an internet bank on the applicant's advice, and of Yakubovski, a business and political associate of the applicant, well-connected in Boris Yelstin's political circle. The applicant has not given any evidence of threats against him by these people.
[16] Finally, the Board referred extensively to the documentary evidence and expert evidence on the issue of Jews in Russia. It found that:
. . . the evidence reflects, . . . that Russia's Jews are undergoing a cultural and institutional revival, a high degree of political development and participation, organization of religious denominations, and displaying general sophistication and vigilance in voicing its concerns to political leaders and human rights observers locally and abroad.
[17] The Board concluded that the evidence in areas crucial to these claims lacks trustworthiness. It also judged that based on the applicants' profile and particular circumstances, and based on the documentary evidence as a whole, there is not a serious possibility that they would suffer serious harm of persecution in Russia.
Issues
[18] The following issues are proposed by the applicants:
1. Did the Board err in receiving the evidence of Sergeant King to the hearing because:
(a) The Board failed to provide reasons for rejecting the applicants' motion to either exclude the evidence or direct the witness to reveal the informants, although it indicated it was going to do so?
(b) The Board erred in accepting the evidence of Sergeant King or in not directing him to answer questions regarding the identity of the informants?
2. Did the Board err in law because it ignored or in the alternative failed to provide reasons for disbelieving evidence of the applicants' daughter and the female applicant's mother with respect to the incidents of persecution in Moscow?
3. Did the Board err in law because it made unreasonable inferences because it ignored the evidence before it and ignored the evidence which clearly indicated that the applicants would be at risk?
Reasons for Decision
[19] Issue 1
Did the Board err in receiving the evidence of Sergeant King to the hearing because:
(a) The Board failed to provide reasons for rejecting the applicants' motion to either exclude the evidence or direct the witness to reveal the informants, although it indicated it was going to do so?
(b) The Board erred in accepting the evidence of Sergeant King or in not directing him to answer questions regarding the identity of the informants?
This issue deals with the admissibility and source of the evidence of the RCMP officers who were offered as experts in the area of Russian and Eastern European organized crime. I have reviewed the Board's decision and I cannot find where the Board made any use of this extensive evidence. The Board's decision was not based on the RCMP evidence. The Board stated at page 28 of its decision (applicants' application record page 34):
Based on the foregoing analysis, and having carefully considered the totality of the evidence on all issues, I find that it has not been established that there is a serious possibility that the claimants would be persecuted for Convention reasons were they to return to Russia. The evidence in areas crucial to these claims lacks trustworthiness. They have not met the burden, which rests on them, of establishing that they have a well-founded fear of persecution in Russia. Based on their profile and particular circumstances and based on the evidence as a whole, I determine that there is not a serious possibility that they would suffer the serious harm of persecution in Russia.
The Refugee Division determines, therefore, that the claimants, Vitali Papsouev, Marina Papsoueva, Julia Papsoueva and Daria Papsoueva, are not Convention refugees.
[20] Whether the Board gave reasons for the admission of the RCMP testimony and for not directing the RCMP officers to answer questions regarding the identity of the informants was not determinative of the application for judicial review. It was not used to make any of the credibility findings. It was also not used to coming to a finding on whether or not Jewish people face persecution in Russia. The decision of the Board was based on other evidence and other considerations. If these considerations are found to be sustainable, then the decision of the Board will stand.
[21] I would note that the Board did give some brief reasons when it stated at page 7 of its decision (applicants' application record, volume 1, page 13):
The claimant challenged, by motion, the entry and use of informant evidence because in this case the sources of the evidence were not revealed. Counsel cautioned against reliance on conclusions based on such evidence. The panel ruled against the claimants and received the information into evidence. While I agree that, for all the reasons submitted by counsel, such information must either be discarded or viewed with great circumspection, the discretion to do either is the panel's to exercise; in an administrative context such as the CRDD, the rules of evidence, including questions of admissibility, are somewhat relaxed even in adversarial cases, and it is the preferred practice to admit and weigh, rather than to reject outright.5 In this case, counsel argued, referring to jurisprudence tending to support the argument, that where the information sought to be proffered by one party is potentially extremely harmful to another, the court or tribunal must, without shifting the standard, take greater care in deciding how to treat the information. Sergeant King testified that he would have reached his principal conclusion that Mr. Papsouev is an inactive member of organized crime even without the information derived from informants. I accept this testimony of his. Inspector John Neely of the RCMP also testified and was accepted as an expert witness in the same field. He generally corroborated Sergeant King's testimony.
[22] Footnote 5 refers to subsection 68.(3) of the Immigration Act, supra which reads:
| 68.(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. |
68.(3) La section du statut n'est pas liée par les règles légales ou techniques de présentation de la preuve. Elle peut recevoir les éléments qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa décision. |
[23] In Huang v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 472 (QL) (T.D.), the Federal Court of Appeal, when dealing with a situation where a police officer testified about Asian gang activity and relied on confidential sources stated:
Counsel has not persuaded us that the Appeal Division of the Immigration and Refugee Board committed any reviewable error of law or jurisdiction in receiving and relying on the evidence of Corporal Ditchfield. Even if parts of that evidence were, as described by counsel, "double hearsay", the board was entitled to hear and act on it if it found it [to] be relevant, credible and trustworthy. (See s. 69.4(3)(c))
[24] As well, in Mahendran v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 549 (QL) (T.D.), a case where counsel objected to the admissibility of a telex that contained evidence from an unidentified member of the Sri Lankan community, the Court of Appeal stated:
In summary, it is [m]y view that the tribunal had ample cogent evidence upon which to conclude, as it did that the appellant was " . . . in no way credible" (Vol. 2 Appeal Book - p. 304). Even if it can be said that the information contained in Exhibit 8 is highly prejudicial and constitutes hearsay of the most objectionable kind, the tribunal did not commit reviewable error in receiving it in evidence in view of the provisions of s. 68(3) of the Act supra. The scheme of the Act and Regulations leaves it to the tribunal to decide the weight which it will ascribe to any of the evidence before it. As noted earlier herein, there was other cogent evidence contained in the appellant's application for Temporary Entry to Canada which supported the tribunal's negative findings on credibility. At page 192 of Vol. 2 of the Appeal Book, the appellant stated that he had lived in India from January of 1984 to September of 1987. This evidence cannot be subject to the same objections as Exhibit 8. Accordingly it represents support for the tribunal's conclusions.
It would thus appear that the Court of Appeal has held that the evidence is admissible, but it is a matter of the weight to be attached to the evidence. I note that the evidence was not used in the present case.
[25] Issue 2
Did the Board err in law because it ignored or in the alternative failed to provide reasons for disbelieving evidence of the applicants' daughter and the female applicant's mother with respect to the incidents of persecution in Moscow?
The applicants submit that the Board ignored the evidence of three other witnesses, namely, Marina Papsoueva's mother, Julia Papsoueva and Dr. Stonov. Firstly, with respect to Marina Papsoueva's mother's testimony, the Board did consider this evidence at pages 4 to 5 of its decision (applicants' application record, volume 1, page 10) and stated that it took this evidence into account. Secondly, the Board also dealt with the evidence of Julia Papsoueva (applicants' application record, volume 1, page 12). Thirdly, I also find that the Board considered the evidence of Dr. Stonov (applicants' application record, volume 1, pages 18 to 19). In my opinion, the Board, which is a specialized board, addressed this testimony and came to a conclusion on the whole of the evidence. It is not the function of this Court to substitute its opinion for that of the Board, unless the Board makes a reviewable error. I cannot find a reviewable error with respect to ignoring evidence.
[26] Issue 3
Did the Board err in law because it made unreasonable inferences because it ignored the evidence before it and ignored the evidence which clearly indicated that the applicants would be at risk?
The applicants stated at paragraph 127 of their further memorandum of fact and law:
UNREASONABLE INFERENCES
127. It is further submitted that the tribunal erred in law in making unreasonable inferences with respect to the evidence. The entire basis for the tribunal's conclusion that the incidents did not occur was that it found the conduct of the Applicants implausible because:
a. The female Applicant opened the door of the apartment to the attackers;
b. They should have left the country more quickly;
c. They should have had greater security provided;
d. They should have used their connections to obtain their passports more quickly;
e. Mrs. Papsoueva did not state in her PIF that there were anti-Semitic swastikas put on the apartment;
f. They left the children with their grandparents when they left the country.
[27] The Federal Court of Appeal in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) (C.A.)). stated at paragraphs 2 to 4:
In his memorandum, counsel for the appellant relied on the decision of this Court in Giron v. Minister of Employment and Immigration [(1992), 143 N.R. 238 (F.C.A.).] in support of his argument that a court which hears an application for judicial review may more easily intervene where there is a finding if implausibility. Because counsel are using Giron with increasing frequency, it appeared to us to be useful to put it in its proper perspective.
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
I cannot find that the Board's findings are unreasonable. In conclusion, I find that the Board's resulting credibility findings are reasonable.
[28] The application for judicial review is dismissed.
[29] The parties shall have one week from the date of this decision to submit for my consideration, any proposed serious question of general importance, and a further week to make submissions as to any proposed question.
(Sgd.) "John A. O'Keefe"
J.F.C.C.
Vancouver, B.C.
March 3, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4350-01
STYLE OF CAUSE: VITALI PAPSOUEV, MARINA PAPSOUEVA,
JULIA PAPSOUEVA, DARIA PAPSOUEVA, through
her litigation guardian MARINA PAPSOUEVA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, September 11, 2002
REASONS FOR ORDER OF O'KEEFE J.
APPEARANCES:
Lorne Waldman
FOR APPLICANTS
Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT