Federal Court Decisions

Date: 200203

Docket: IMM-1431-01

Neutral citation: 2002 FCT 75

BETWEEN:

                                    ANDREY KOMISSAROV, OLGA BARKHATOVA,

                                ARTUR KOMISSAROV, AND DAVID KOMISSAROV

                                                                                                                                                      Applicants

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

LUTFY A.C.J.

[1]                 The four applicants, married parents and their two children, are citizens of Kazakhstan. Andrey Komissarov states that his ethnic background is one-fourth Chechen. His wife's ethnicity is Russian and she is Christian. The applicants' claim for Convention refugee status is based on Mr. Komissarov's fear of his Muslim Chechen step-uncles who oppose his marriage to a Russian Christian.

[2]                 The applicants now seek judicial review of the decision of the Convention Refugee Determination Division that they are not Convention refugees.

[3]                 The factual substance of the applicants' claim is summarized in the panel's reasons for decision:

The claimant stated that his grandfather married a Russian woman. He states that his grandfather's ethnicity is Chechen. According to the claimant his grandparents separated when his father was 18 years old and his grandfather returned to Chechnya. He states that his grandfather is a "Mullah", a person with a profile in his village. His grandfather remarried and had two sons, Abdul and Esa. He alleges that his Russian grandmother changed his father's Chechen name to a Russian-sounding name and, subsequently, his father married a Russian woman, as did the claimant. According to the claimant, his father's stepbrothers, Abdul and Esa, travel from the Groznyy region to Almaty in Kazakhstan to harass and persecute the claimant for his marriage to a Russian woman. He further alleges that his step-uncles wish to recruit him in the war against Russia.

[4]                 The applicants challenge the three issues which were dispositive of the panel's decision: (a) the identity issue; (b) the findings of implausibility and lack of credibility; and (c) the state protection issue.

(i)        The identity issue

[5]                 In order to establish Mr. Komissarov was one-fourth Chechen, the applicants relied on his father's change of name certificate and corresponding amended birth certificate, both issued in 1965 when his father was 19. Neither certificate was produced in its original form, although they were apparently available to the applicants. There was no request for additional time to obtain the original documents after the panel asked why they were not obtained prior to the hearing.

[6]                 Also, the record discloses no explanation for the applicants not having produced the 1946 birth certificate of Mr. Komissarov's father to establish clearly his original Chechen name.

[7]                 The panel was further concerned, in its words, "by the information on the easy availability of false documents from the former Soviet Union". Accordingly, it concluded that the identity documents should not be given any evidentiary weight.

[8]                 The applicants argue that this finding was capricious and perverse. I do not agree. While another decision-maker may have viewed the matter differently, it was open to this panel, on the basis of the questioning of Mr. Komissarov and the review of the documentary evidence, not to accept the probative value of the two 1965 certificates: Tcheremnykh v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1310 (T.D.) online: QL, particularly at paragraph 9; and Sedov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1667 (T.D.) online: QL. The reasons for the panel's concern with the authenticity of the documents are clearly stated.

(ii)       The implausibility and credibility issue

[9]                 The panel went on, however, "assuming, without determining, that the claimant is Chechen", to assess the merits of the applicants' claim of persecution from their relatives. Again, the panel did not believe the evidence.   

[10]            The panel found "entirely implausible" that Mr. Komissarov's step-uncles would travel, either by car or by plane, some four thousand kilometres between Groznyy, Chechnya and Almaty, Kazakhstan "quite frequently" to insist that he abandon his Russian wife.

[11]            The applicants argue that this finding of implausibility cannot be sustained because their account of persecution by the step-uncles is substantiated by a police report. That submission is not persuasive. The principal finding of the report is that the step-uncles could not be located at the address provided by the applicants in their complaint to the police.

[12]            The transcript discloses other inconsistencies and vagueness in the testimony to support this finding of implausibility.

[13]            The panel did not believe that the applicants moved several hundred kilometres from Almaty to the family residence of Mr. Komissarov's spouse in Ust'-Kamenogorsk in Kazakhstan to avoid the threats and abuse by his step-uncles. In his testimony, Mr. Komissarov contradicted himself by stating that the family made this move "once" only to answer later that they did so "twice". Concerning the month of the alleged move from Almaty in 1998, Mr. Komissarov's response is substantially at variance with the statement in his personal information form.

[14]            On my review of the record, the applicants failed to establish any reviewable error in the panel's decision. This approach is fully consistent with the statement of the Court of Appeal in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (at paragraph 4):

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.

(iii)      The state protection issue

[15]            Finally, any doubt concerning the credibility and implausibility findings by the panel would be dispelled on review of the state protection issue.

[16]            After suspecting that his step-uncles were responsible for breaking the windows of his family home, Mr. Komissarov complained to the police. According to the report filed by the applicant, the police were unable to locate the step-uncles at the address he had indicated and determined not to open a criminal investigation in view of the family nature of the conflict. This incident occurred in October 1999. Some four months later, Mr. Komissarov's spouse is said to have been physically attacked and injured by unknown persons whom the applicants again suspect to be the step-uncles. In explaining his failure to report this matter to the police, Mr. Komissarov thought it would be unrealistic to expect their assistance. In any event, he had obtained visas to the United States where he visited his sister before seeking refugee status in Canada. Mr. Komissarov explained his reluctance in these terms:

RCO     But I can understand the police not taking as seriously a broken window. That's property damage or vandalism, whereas your wife was physically harmed. That's much more serious.

MALE CLAIMANT         Well, the point is that the atmosphere, the climate was such that I really had no intention or desire any more to approach the police. Because as I said, I had lost all the confidence in the authorities. I already had the visas ready for us to leave and I only had one thing on my mind and that was how to escape as soon as possible, how to leave everything behind.

[17]            The applicants were required to provide clear and convincing evidence of their state's inability to provide protection. On the basis of the evidence relied upon by the panel, its conclusion that the presumption of state protection had not been rebutted is free from reviewable error.

[18]            Accordingly, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.

                                                                                                                                                    "Allan Lutfy"                       

                                                                                                                                                            A.C.J.

Ottawa, Ontario

January 23, 2002