Federal Court Decisions

     IMM-938-96

B E T W E E N:

     Mikhail TOUZNIK and Nina TOUZNIK

     Applicants

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CAMPBELL J.

     Mikhail Touznik, the principal claimant for refugee status, and his wife Nina Touznik, who is dependant upon her husband's claim, have applied before me to quash or set aside an order of the Immigration and Refugee Board (Refugee Division) which denied their claim to refugee status which was made on the ground of well-founded fear of persecution for reasons of religion, membership in a particular social group, and political opinion.

     The critical facts found by the Board are that Mr. Touznik, a 33-year-old member of the Baptist Church and son of a Baptist minister, was involved in religious activities in the following ways: in 1984 as a paid employee of the Philadelphia Religious Division in Kiev; in 1991 as a driver in the headquarters of the Union of Evangelical Christian Baptists under the head of the President of the organization (I.K.D.); at the same time as being a driver, as a volunteer with the newly-formed Ukrainian Bible Society (UBS), whose purpose was to distribute Bibles donated by overseas organizations and individuals; and in 1992 as a paid employee of the UBS working at the organization's headquarters at the job of receiving and distributing Bibles as required by the Director of the organization (P.P.S.).

     Regarding his employment with UBS, the Board made the following findings of fact:

In March 1993, P.P.S. directed the principal claimant to deliver a shipment of Bibles to a bookstore in Vologda, Russia. While he was there, the bookstore owner gave him a large sum of money to give to P.P.S. The principal claimant suspected that the money was payment for the Bibles. When he asked P.P.S. about it, he was told sharply that he did not need to know. The principal claimant decided to report the incident to I.K.D., who listened carefully and told him that he would investigate the matter.

Two weeks later, the principal claimant was beaten on his way home from work by three men, one of whom warned him that he should stop interfering if he wanted to lead a normal life. He took this as a threat resulting from his complaint about his boss, and concluded that his attackers had been sent to P.P.S. himself. He called the police, who took all the details he provided. However, he never heard anything more from them.

As the attack had resulted in a light concussion, the principal claimant did not return to work for ten days. When he did so on 3 May 1993, he reported the incident to P.P.S., who told him that he would fire any employees who spied on him, disobeyed him or were disloyal to him. P.P.S. added that he had a disagreement with a neighbour, who was still missing. The principal claimant took this as confirmation that his boss was responsible for the attack, as well as the cause of several recent firings of other UBS staff. He replied that he would not comply, but would report the matter of the money to government organizations and to the newspapers. The next day, 4 May 1993, he himself was also fired.

     In accepting Mr. Touznik's evidence on these and additional subsequent acts of similar intimidation, the Board made the following findings:

Based on all the evidence before us, the panel concludes that the claimants do have a well-founded fear of persecution and are unwilling and unable to avail themselves of the protection of the authorities. In arriving at this conclusion, the panel accepts that there is a reasonable chance that the principal claimant would suffer actual physical harm if he were to return to Ukraine, and that this harm would occur at the instigation of P.P.S., a man with connections to those who wield influence in the institutions of the State. Further, the panel finds, based on the documentary evidence, that the judicial system in Ukraine is not free from external influence, including that exercised by organized crime elements. Accordingly, it is our view that the principal claimant's right to a fair trial, based on the charges outstanding against him, is in doubt.

In order for the panel to find the claimants to be Convention refugees, the evidence must establish that there is a link between the harm feared and any of the grounds enumerated in the Convention refugee definition.

In this particular case, the claimants base their claim on their religion as Baptists, on political opinion, and on membership in a particular social group. Counsel, in her submissions, has defined two particular social groups: "members of the Baptist community", and "the family", since the principal claimant is the son of a Baptist minister.

With regard to religion, the panel is unable to conclude that this is applicable. There is no plausible evidence that the principal claimant was harassed, either by the attack he suffered or the threatening letters he received, because he is a Baptist. The principal claimant is a victim of harassment as a result of his attempts to expose the corruption of the Director of the Ukrainian Bible Society, who was selling Bibles for profit rather than distributing them free of charge. It is evident to the panel that he was fired from his position as a result of revealing his suspicions to P.P.S., who had himself converted to the Baptist faith soon after assuming the role of Director of the organization.

By the same token, the panel finds that there is no connection between the problems experienced by the principal claimant and his membership in a particular social group, however defined. In particular, he was not subject to harassment by P.P.S. and his supporters because he was a member of the Baptist community in Ukraine, nor was any evidence adduced establishing a connection between his problems and his father's position as a Baptist minister.

The other ground requiring examination is that of political opinion. In this regard the Supreme Court of Canada has made it clear that it favours a broad characterization of political opinion as "any opinion on any matter in which the machinery of the state, government, and policy may be engaged. The Court further stated that it was not necessary for the agent of persecution to be the State, or for the political opinion ascribed to the claimant to conform to the claimant's true beliefs. What is relevant is the perception of the persecutor, rather than the claimant's actual political opinion.

In this case. the principal claimant testified that he attempted to expose the activities of P.P.S. because he did not wish the true objectives of the Ukrainian Bible Society, including the free distribution of Bibles, to be subverted. Considering the situation from the perspective of the agent of persecution, the panel finds that P.P.S. wishes to silence the claimant because the latter might otherwise expose acts threatening to his operations and to his reputation. In his efforts to achieve this objective, P.P.S., through his connections, has access to the support of individuals in the judicial system, including the police. However, having considered the guidance offered by Ward, and the facts of this case, the panel is unable to conclude that the harm feared by the principal claimant is by reason of a political opinion, either actual or perceived. [Footnotes omitted]

     The principal argument made by counsel for the applicant is well framed in the following written submission:

In this case, the claimant and his supporting witness were found to be credible. The claimant testified and it was accepted that his efforts to expose the activities of P.P.S. were because he did not want the true objectives of the Bible Society subverted and hence his actions were motivated by his strong religious beliefs. P.P.S. however needed to silence the claimant primarily to protect his reputation and his black market operation. There was no evidence whatsoever that any problem would have arisen for the claimant were it not for his strong religious beliefs in the sanctity of the Bible and the importance of its free distribution. As is stated in Regnoso v. Canada (Court File No. IMM-2110-94, January 29, 1996) at p. 6:

First, the political opinion at issue need not have been expressed outright. In many cases, the claimant is not given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant. The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.

In this case, the claimant did not articulate at the time of his action that his conduct was because of his religious beliefs but it is implicit in his action. The persecutor, however, may have been indifferent to the religious motivation but should not preclude protection of this claimant as it did not in Regnoso.

     I am unable to find that the Board erred in failing to find the critical link noted. The decision reflects a careful analysis of the evidence and the finding complained of is one of fact, which I find the Board was entitled to make. That is, the Board did not accept that the persecution which most certainly exists is being experienced by Mr. Touznik by reason of one of the enumerated grounds in the definition of "Convention refugee" in s.2 of the Immigration Act, and in so doing, in my opinion, did not err.

     I, therefore, dismiss the application.

     However, I believe that the case warrants the certification of the following question posed by Ms. Swartzenberger, counsel for Mr. and Mrs. Touznik, to which no objection has been raised by the respondent:

Where a refugee claimant has taken action because of his religious or political beliefs and is in turn attacked and threatened because of that action but not necessarily because of the religious or political beliefs behind that action, does this amount to persecution "by reason of" religion or political opinion and fall within the definition of a convention refugee in s. 2 of the Immigration Act?

                         Douglas R. Campbell

                         Judge

VANCOUVER

February 28, 1997