Date: 19990618
Docket: IMM-2475-98
BETWEEN:
SVETLANA KAISH
CRISTINA KAISH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J:
[1] This application is for the judicial review of the decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated May 4, 1998, wherein the Board determined that the applicants were not Convention refugees.
[2] The principal applicant is a 28 year-old citizen of Moldova and the mother of Cristina Kaish, the minor applicant. The mother founds her claim on her Jewish nationality.
[3] The applicant has complained of a number of incidents of persecution during daycare, at school, at her workplace and from neighbours. When reporting an incident to the police, she was told to leave the country.
The Board's Decision
[4] The Board found that "cumulatively or singly" all these incidents amount to harassment and/or discrimination rather than persecution which it defined as a "serious, systematic and repeated violation of core human rights". It held that some of the incidents involved "speculation or implausibilities". It stated that a person living in fear of physical attacks would have made serious inquiries to find out if there was another part of the city or even other cities, where Jews were safe from physical attacks. Similarly, the applicant did not seriously consider moving to Israel as many other Jews had done earlier. To that, she answered that she did not do so because her non-Jewish husband did not wish to go to Israel. The Board remarked that her relations with her husband had been sour for several years and they were divorced in 1996. Moreover, her own mother is still living in Moldova and apparently is not being persecuted.
[5] The Board also found that most of the documentation indicated that physical violence against Jews in Moldova is rare although there are isolated cases of anti-Semitism. The Board pointed out that "there is a revival of Jewish life and culture and that the situation of Jews in Moldova is better than in other former Soviet states and better than it was in Moldova in the past".
[6] The Board referred to a dissenting note from lawyer William Cohen, president of the U.S.-based Centre for Human Rights Advocacy, who maintained that anti-Semitism is widespread in Moldova. Mr. Cohen relied mostly on Jewish refugee claimants in theWest and the panel gave greater weight to "the reliable, uptodate and diverse documentation which suggests that the anti-Semitism of the type that the principal claimant alleges is rare today in Moldova".
[7] Finally, the Board found that the applicant refugee claim lacks an objective and a subjective basis and that "there is no more than a mere possibility that the claimants would face persecution were they to return to Moldova".
Analysis
[8] At the hearing of this matter, counsel for the applicant raised five errors of interpretation of facts on the part of the Board from the evidence of the applicant and the documentary evidence. However, the onus is on the applicant to establish a well-founded fear of persecution and, as such, it was incumbent upon her to ensure that the Board had a clear understanding of her case. The determination of whether or not, on an assessment and weighing of the evidence, certain conduct amounts to persecution and not merely discrimination is a question of mixed fact and law to be determined by the Board. As Marceau, J.A. of the Federal Court of Appeal said in Sagharichi v. Canada (M.E.I.)1, it is difficult to draw a line between persecution and discrimination. He continued as follows:
| ...It remains, however, that in all cases it is for the Board to draw the conclusion in the particular factual context by proceeding with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein, and the intervention of this court is not warranted unless the conclusion reached appears to be capricious or unreasonable. |
[9] The definition of persecution adopted by the Board was legally correct and it cannot be said that its appreciation of the facts was clearly unreasonable. For any alleged error of fact to be reviewable, the finding under attack must be truly erroneous, or made capriciously, or without regard to the evidence. It is not the role of the Court to be involved in a minute, or microscopic, investigation of all the incidents. Rather, the Court must look at the totality of the evidence so as to determine whether or not it was open to the Board to find that the incidents in question did or did not constitute a serious, systematic and repeated violation of core human rights.
[10] Consequently, this application for judicial review is dismissed.
[11] There is no question of general importance to be certified.
OTTAWA, ONTARIO
June 18 , 1999
Judge
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