Date: 19990805
Docket: IMM-5480-98
OTTAWA, ONTARIO, AUGUST 5, 1999
PRESENT: THE HONOURABLE MR. JUSTICE DENAULT
Between:
RASHIT FATIKHOV,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
ORDER
The application for judicial review is dismissed.
| Judge |
Certified true translation
Bernard Olivier, LL. B.
Date: 19990805
Docket: IMM-5480-98
Between:
RASHIT FATIKHOV,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
DENAULT J.:
[1] This is an application for judicial review from a decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") dated September 9, 1998 by which the plaintiff, a citizen of Uzbekhistan, is not a Convention refugee.
[2] It appeared from the evidence in the record and the Refugee Board's decision that in April 1995, when he was celebrating Easter, the plaintiff and his family were beaten by Islamic fundamentalists who burst into his apartment: the plaintiff had to be hospitalized. As a result of this incident the plaintiff took action with the militia and district attorney to obtain protection, but his efforts were unsuccessful. In September 1995 the plaintiff was beaten by his neighbour because he acted as a legal consultant for the Uzbekhistan Bible Society. In March 1996 the plaintiff's neighbours set fire to the door of his apartment. After the plaintiff had managed to put out the fire the neighbours made threats to him. In March and June 1997 he was again attacked and beaten by Islamic fundamentalists. At the time of these attacks his attackers also made death threats to the plaintiff.
[3] The Refugee Division concluded that the evidence before it was insufficient to establish that if the plaintiff returned to his country of origin there would be a reasonable possibility of persecution. The Refugee Division considered that the political opinions argument was not applicable to the plaintiff's claim, the documentary evidence contradicted his testimony that the Uzbekh government openly supported Islam and that, in short, the plaintiff had not shifted the presumption that the government can protect its citizens.
[4] In support of his application for judicial review the plaintiff argued that the Refugee Division erred in concluding that he had not sought government protection, that it made an unreasonable error in considering only part of the documentary evidence, and that in short it did not understand the reasons in support of his fear.
[5] On the question of government protection, the plaintiff maintained that he shifted the presumption that the government could protect him. It appeared from the evidence that on several occasions when there were incidents of which he said he was a victim, the plaintiff or his wife informed either the regional militia or the district attorney, the internal government of the city of Tashkent and even the Makhaline Committee, namely the committee managing the building in which they lived. In his testimony the plaintiff admitted, however, that in both 1995 (p. 256 of plaintiff's record) and 1997 (p. 252), he did not want to take action on the refusal to act by the militia and the district attorney because he did not want to create an inter-ethnic conflict. In these circumstances, I feel it was not unreasonable for the panel to conclude that the plaintiff had not shown by clear and persuasive evidence that the state of which he was a national was unable to provide protection for him or shifted the presumption that the state was capable of protecting him.
[6] The objection made against the Refugee Division's decision that it only considered part of the documentary evidence cannot be sustained. It is well established that the Refugee Division is master of the facts, that it is for the Division to draw the conclusions it believes are reasonable from the evidence, and that the fact of attaching greater weight to certain documents than to others or to a plaintiff's testimony cannot be a basis for intervention by this Court.
[7] Accordingly, as the Court is not persuaded that the Refugee Division made any error justifying its intervention, the application for judicial review must be dismissed. There is no basis here for certifying a serious question of general importance.
| Judge |
OTTAWA
August 5, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-5480-98 |
| STYLE OF CAUSE: RASHIT FATIKHOV c. M |
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 28, 1999
REASONS FOR ORDER BY: DENAULT J.
DATED: AUGUST 5, 1999
APPEARANCES:
| MARIE-CLAUDE PAQUETTE FOR THE APPLICANT |
| STEVE BELL FOR THE RESPONDENT |
SOLICITORS OF RECORD:
MARIE-CLAUDE PAQUETTE FOR THE APPLICANT
STEVE BELL FOR THE RESPONDENT
Morris Rosenberg
Deputy Attorney General of Canada