TC1-14859

RAD File / Dossier de la SAR : TC1-14859 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision February 4, 2022 Date de la décision Panel L. Krajcovic Tribunal Counsel for the person who is the subject of the appeal David P Yerzy Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (the Appellant) is a citizen of Kazakhstan. He appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. DECISION [2] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant claims to fear persecution in Kazakhstan by MA, whose father, TA, is the Akim, or head of his village. [4] The Appellant's allegations are as follows. The Appellant was a XXXX XXXX in XXXX District in South Kazakhstan. In 2017, TA became the Akim, following which his son, MA, purchased a XXXX-XXXX XXXX and established his own rules and pricing for XXXX, which were significantly lower than the previous year. While most XXXX agreed to this price, the Appellant expressed his disagreement to MA, who told him to sell his XXXX elsewhere. The Appellant sold his XXXX in XXXX, where he spoke openly about MA's rules. [5] On XXXX XXXX, 2018, the Appellant was taken by police, who falsely accused him of having Muslim extremist literature in his vehicle and threatened to charge him. The police officer, NA, was MA's brother. The Appellant alleges that he offered money to NA, who agreed not to charge him if he paid MA XXXX XXXX XXXX XXXX USD and stopped spreading rumours about their family. The following day, the Appellant paid MA XXXX XXXX XXXX XXXX USD and told him he would pay the remainder following the next harvest. The Appellant's friend, who worked for the Akim, advised the Appellant that MA would continue to extort money from him. The Appellant moved to Almaty where he worked in XXXX. In XXXX 2019, MA saw the Appellant's wife at a market and asked her when the Appellant was going to pay the debt. Later that month, the Appellant gave his wife XXXX XXXX XXXX XXXX USD, which she paid to MA. [6] In XXXX 2019, the Appellant obtained a Canadian visa. On XXXX XXXX, 2019, he travelled to Canada. He signed his Basis of Claim (BOC) form on October 10, 2019. [7] The RPD heard the Appellant's refugee claim on August 25, 2021. On September 13, 2021, the RPD rejected the claim on the basis of a viable internal flight alternative (IFA) in Almaty. On appeal, the Appellant submits that the RPD erred in finding that there was no nexus to a Convention ground and that there was a viable IFA in Kazakhstan. NO NEW EVIDENCE, NO ORAL HEARING [8] The Appellant does not request to submit new evidence on appeal, nor does he request an oral hearing. As there is no new evidence admitted on appeal, there can be no oral hearing pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [9] The RAD applies a standard of correctness for questions of fact, mixed fact and law, and law. I may defer to the RPD in assessing findings involving the credibility of oral testimony if I find that it had a meaningful advantage in the circumstances.1 In this case, I find that the RPD did not have a meaningful advantage. ANALYSIS There is a nexus [10] The RPD found that there was no nexus to a Convention ground. The RPD found that the harm the Appellant feared did not have a nexus to his Tajik ethnicity based on the lack of evidence supporting this allegation and the objective documentary evidence which indicates that there is discrimination against ethnic minorities in Kazakhstan but that this does not amount to persecution. The RPD found that the Appellant was targeted by MA for extortion and that the case was fundamentally about criminality. The RPD assessed the claim pursuant to section 97 of the IRPA. [11] The Appellant submits that the RPD erred in finding that there was no nexus to a Convention ground. The Appellant submits that his claim has a nexus to political opinion, ethnicity, and religion. While I agree with the RPD that the Appellant was extorted for financial reasons, the RPD did not consider whether the Appellant's dissent and statements could constitute an imputed political opinion. [12] I have considered this as part of my independent assessment and agree with the Appellant's submission that the opinions that he expressed regarding MA's family resulted in an imputed political opinion. TA was the Akim and the owner of the XXXX XXXX XXXX, of which his son, MA, was the director. The Appellant's BOC narrative refers to the Appellant speaking openly about rules that the family established after TA became the Akim.2 The Appellant was released by the police after he agreed to pay money to MA and stop spreading false rumours about the family.3 Based on these circumstances, I find, on a balance of probabilities, that the Appellant's dissent and criticism resulted in an imputed political opinion. Therefore, I find that the Appellant's claim has a nexus and have assessed this appeal pursuant to section 96 of the IRPA. The Appellant has a viable IFA in Almaty The agent of persecution has the means to locate the Appellant [13] The RPD found that the Appellant does not face a risk to his life in Almaty. The RPD was not persuaded that a son of the local head of the village would have the means to find the Appellant in Almaty. The RPD noted that MA would have to find out that the Appellant returned to Kazakhstan, that he moved to Almaty and then locate him in a city XXXX kilometres away. The RPD noted the Appellant's testimony that he would have to register his residence, which the police can access, as could MA, as he has the support of police, but found it to be speculative as the Appellant only dealt with MA, never met or dealt with the Akim, and did not provide evidence that he was involved or supported MA. The RPD also noted that, while MA may have some connections with police at a local level, the Appellant did not provide evidence that MA has connections with police in Almaty or has the support of police or ability to influence the police to actively search for him throughout Kazakhstan. Therefore, the RPD found that the Appellant failed to establish, on a balance of probabilities, that MA has the means to find him in Almaty. [14] The Appellant submits that the RPD erred in finding that the Akim was unaware of what MA was doing. The Appellant points to the Akim's knowledge based on the expectation that he would know what is happening in his town, in addition to MA's ability to impose his will on the population and extort money. The Appellant submits that the RPD is speculating when it found that MA is hiding all of this from the Akim or that the Akim is oblivious to what is happening. The Appellant also points to the mobilization of police as indicating that the Akim was aware and had sanctioned police actions. [15] The Appellant submits that the RPD erred in finding that his belief that MA would be able to locate him because he would have to register his residency with police and MA has the support of the police were speculation or conjecture. The Appellant refers to objective documentary evidence that Kazakhstani citizens must register their residence with local authorities. [16] The Appellant submits that the objective documentary evidence states that police in Kazakhstan are controlled by a single entity, the Ministry of Internal Affairs, which supervises the national police force. As the police force is not fragmented, the Appellant submits that all police have access to common information about citizens. The Appellant submits that, rather than speculating, he is making an inference based on the objective evidence. The Appellant points out that the police, particularly NA, who is related to the Akim, was involved and collaborated in the past, which is an indication that they would continue to collaborate. The Appellant submits that, if local police file a case against him, he would be wanted by all police and that there is no evidence that people who commit a crime in one village are able to escape to another place in Kazakhstan because police have no national coordination. [17] I find that the Appellant's submissions have merit. Taking into account MA's relationships, namely that his father is the Akim and his brother, NA, is a senior police officer, in addition to the requirement that the Appellant register his address upon relocation, which is accessible by police, I find that there is a serious possibility that MA could locate the Appellant in Almaty. The agent of persecution does not have the motivation to locate the Appellant [18] The RPD noted that, while the Appellant testified that MA has threatened that the police would falsely charge him, he did not provide any evidence that the police have ever attempted to bring false charges against him or that they have tried to find him since he left Kazakhstan in XXXX 2019. [19] The RPD also found MA's lack of motivation further demonstrated by the fact that MA has not been interested in the Appellant's family even though they continue to reside in XXXX District. The RPD notes that, at the time of the hearing, it had been over two years since the Appellant left Kazakhstan. The RPD notes that, if MA had the ability to use or influence the police to bring false charges against individuals as the Appellant suggests, he could have easily targeted the Appellant's family to extort money from them. However, the Appellant did not offer any evidence that MA has attempted to target his family to extort money or has shown a continued interest in finding the Appellant. The RPD also notes that the Appellant provided no evidence to suggest that MA has any interest in searching for the Appellant outside of his village. [20] The Appellant submits that his family not being targeted may prove that the motive is not purely financial and is revenge for him expressing his public opposition to MA's family. The Appellant submits that, as he testified, everyone knows that he left the country, which may be why they see no purpose in charging him. While the Appellant acknowledges that this is all speculation, he submits that it remains that they said that they would do it and that they have the means to do it. The Appellant points to the stated intention of the agents of persecution to continue to pursue him in XXXX 2020 as a statement of intent and that there is no evidence that MA has declared that the matter is no longer of any interest. [21] The Appellant points to Federal Court jurisprudence for the proposition that determinations on the plausibility of who will be attacked and when must be made with caution because of the difficulty of predicting who will be targeted and for what level of involvement and that decision makers should not speculate without any basis as to the agent of persecution's motives, means and future intentions or assume that they would behave sensibly and rationally. [22] The Appellant submits that the fact that a distance must be travelled is not a serious consideration as MA is wealthy and his police allies can make false accusations that would engage police in other places. [23] The Appellant points to Federal Court jurisprudence for the proposition that an agent of persecution being familiar with a victim's family is a significant fact that needs to be considered and that not being able to share location information with family and friends is tantamount to hiding. The Appellant submits that MA will be able to extract his information from his family, regardless of the IFA location. The Appellant refers to a Federal Court case which found that the RAD's decision unreasonably relied on a lack of evidence that the agent of harm had approached the applicant's husband's business associates as the husband was not being targeted. [24] The Appellant submits that he still owes MA XXXX XXXX XXXX XXXX which is not insignificant and that MA may be motivated by revenge, making an example to other locals or money. [25] The Appellant submits that the fact that MA has not been in direct contact with him or that time has passed is not a reason to find that he has lost interest, as he has openly declared his continued interest. The Appellant points to Federal Court jurisprudence that states that one not hearing from an agent of harm in some time could be because they have been out of the country and does not necessarily lead to a conclusion that the agent of harm would not pursue them if they returned to the country. [26] I find that the RPD was correct in determining that the evidence demonstrates that the agents of persecution are no longer motivated or interested in locating the Appellant and therefore that there is no serious possibility of persecution in the IFA location. There are a number of factors that inform this finding. [27] First, the agents of persecution have never attended the Appellant's home in XXXX District despite the Appellant's wife and parents continuing to reside in the same home where they lived with the Appellant. I note that the Appellant's wife interacted with MA personally in XXXX 2019, when she made the last payment to him while the Appellant was in Almaty. Further, although the Appellant testified that his family does not have the funds to pay MA, as noted by the RPD, the Appellant's father owns their property, in addition to the land that the Appellant used to use to grow XXXX, which his father now rents out. [28] Second, the last interaction that the Appellant's family had with the agents of persecution was in XXXX 2020, which was two years ago. According to the Appellant's testimony, in XXXX 2020, MA saw the Appellant's wife on the street, at which time he requested his money and asked the Appellant to return to Kazakhstan. The Appellant testified that there had been no interactions with MA since XXXX 2020.4 [29] Third, the Appellant's evidence was that MA did not search for him while he was in Almaty from XXXX 2018 to XXXX 2019.5 Rather, during this time, as outlined above, MA saw the Appellant's wife at the market and asked her when the Appellant is going to pay his debt.6 [30] Finally, despite the threat to lay false charges against him, there is no evidence before me that such charges have been laid against the Appellant. [31] I acknowledge that none of these factors in and of themselves are determinative of MA's interest and motivation to locate the Appellant in Almaty. However, I find that, when considered cumulatively, MA having not attended the Appellant's home in XXXX District despite his family, particularly his wife, continuing to reside there; the last interaction with MA having been two years ago; MA not having attempted to locate the Appellant in Almaty while he resided there; and no false charges having been laid against the Appellant, indicate that MA is no longer interested in the Appellant. [32] While I acknowledge the Appellant's submission that MA not having targeted his family may indicate that his motive is not purely financial and is partly revenge for him expressing his public opposition to the MA family, as the Appellant acknowledges, this is speculative. Further, while this submission may speak to why MA has not targeted the Appellant's family, it remains that there has been no contact with MA for two years despite the Appellant's family being a means through which MA could contact the Appellant. [33] I also find the Appellant's submission that the reason that he has not been charged may be because everyone knows that he left the country to be speculative, as acknowledged by the Appellant. I note that, according to the Appellant's evidence, no charges were laid against him prior to him leaving Kazakhstan despite his wife only telling MA that the Appellant had left the country in XXXX 2019.7 Further, charges could have been laid against the Appellant regardless of him having left Kazakhstan and there is no evidence of such charges being laid. [34] I agree with the Appellant that determinations on the plausibility of who will be targeted and when must be made with caution and that decision makers should not assume that agents of persecution will behave sensibly and rationally. That being said, it remains that MA's past actions, or lack of action, inform the assessment of future risk. While I accept that MA is wealthy and, as outlined above, has the ability to use his connections with police to locate the Appellant or make false accusations against him, I find that MA's actions, or more precisely his lack of action, demonstrate a lack of continued interest in the Appellant. [35] I acknowledge that in XXXX 2020, MA told the Appellant's wife that police would apprehend the Appellant if he returns.8 However, this occurred two years ago and, as outlined above, there has been no contact with MA since that time. While I also acknowledge that MA has not declared that he is no longer interested in the Appellant, I find that his lack of action in pursuing him over the past two years indicates a lack of continued interest. [36] While I agree with the Appellant's submission that not being able to share location information with family and friends is tantamount to hiding, MA has not threatened the Appellant's family members to extract information from them regarding the Appellant. Rather, all of MA's threats have been directed toward the Appellant himself, and there is no evidence before me that MA has threatened his family. [37] I have reviewed the A.B.9 case, as referred to in the Appellant's memorandum and find it distinguishable from the Appellant's case. In that case, the agent of harm was under the impression that the husband was cooperating with him to locate the applicants, which provided an explanation as to why his business associates were not contacted. However, this is not the situation in the Appellant's case as there is no evidence that the Appellant's family was cooperating, or believed to be cooperating, with MA. [38] I agree with the Appellant that the amount of the remaining debt, namely XXXX XXXX XXXX XXXX USD is not insignificant, however, it remains that, regardless of MA's motives, his lack of action indicates that he is no longer interested in the Appellant. [39] Contrary to the Appellant's submissions, the RPD did not rely on the fact that MA has not been in direct contact with the Appellant, but rather referred to the lack of contact with his family for two years, despite them continuing to reside in the home where the Appellant lived before he left Kazakhstan. I particularly note the lack of contact with the Appellant's wife, who made the last payment on behalf of the Appellant and who MA has contacted by phone in the past, and also continues to reside in the home where the Appellant lived before he left Kazakhstan. [40] While I agree that the passage of time, in and of itself, is not determinative of a lack of interest in the Appellant, as outlined above, this was not the only factor that the RPD relied upon, nor is it the only factor that I am relying upon. Similarly, while I agree that one being out of the country may explain not hearing from an agent of harm and that this factor is also not determinative, as outlined above, this was not the only factor relied upon to find that the evidence does not establish that MA remains interested in the Appellant. [41] While I accept the Appellant's submission that MA is wealthy and has police allies which could engage police elsewhere, as outlined above, I find that MA has the means to locate the Appellant in the IFA location. However, locating the Appellant in Almaty would require more effort than if the Appellant returned to XXXX District. I note that there is no evidence that MA attempted to locate the Appellant while he was previously in Almaty. Further, I find that MA's lack of contact with the Appellant's family in the past two years demonstrates his lack of continued interest in him. [42] Considering the foregoing, I find that there is no serious possibility of persecution in Almaty. Relocation to the IFA is reasonable [43] The RPD considered the Appellant's age, education, work experience and that he previously lived in Almaty and found that it was reasonable to expect him to relocate to Almaty. [44] The Appellant submits that the RPD erred by analysing only one aspect of his claim, namely his fear of harm without considering the role of police prejudice and how it affected his life. The Appellant refers to the evidence regarding the unequal treatment of minorities before the law as evidence concerning general practices in Kazakhstan and that this is also an important consideration with regard to the safety and reasonableness of the IFA. [45] While the RPD did not consider this issue in its assessment of the safety or reasonableness of the IFA, it did consider it in its assessment of nexus, where it found that while isolated incidents of ethnic violence in Kazakhstan indicate some discrimination against ethnic minorities, they do not amount to persecution. The RPD states: The objective documentary evidence confirms that, while there have been isolated incidents of ethnic violence in Kazakhstan, it is not widespread or large-scale as seen in neighbouring Kyrgyzstan and Tajikistan. While these isolated incidents of violence support that there are some discrimination against ethnic minorities, these do not amount to persecution in and of itself. There is little evidence to support a finding that Tajik people, in general, are facing a serious possibility of persecution. The claimant did not provide any testimony about facing persecution due to his ethnicity while he resided in Kazakhstan.10 [46] After reviewing the National Documentation Package (NDP) for Kazakhstan, and the item specifically referred to by counsel, I agree with the RPD that incidents of ethnic violence in Kazakhstan are isolated and that, while there is some discrimination against ethnic minorities, it does not amount to persecution. I note that the incidents of ethnic violence in Kazakhstan that counsel cites occurred between 2014 and 2016.11 I find that the discrimination against ethnic minorities in Kazakhstan does not render relocation to Almaty unreasonable or unsafe. [47] The Appellant does not otherwise contest the RPD's finding that relocation to Almaty is unreasonable. After my independent assessment, I find that the RPD was correct in finding that relocation to Almaty is reasonable in the Appellant's circumstances. Not necessary to consider state protection [48] The Appellant submits that the RPD erred by failing to consider whether he would be denied protection on account of his ethnicity. The Appellant refers to the US Department of State report stating that corrupt officials generally act with impunity in Kazakhstan. [49] I find that the RPD did not err in not considering the issue of state protection. The RPD found that IFA was the determinative issue. As IFA is determinative, it was not necessary for the RPD to consider whether adequate state protection was available to the Appellant in Kazakhstan nor is it necessary for me to consider this issue. CONCLUSION [50] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection pursuant to paragraph 111(1)(a) of the IRPA. (signed) L. Krajcovic L. Krajcovic February 4, 2022 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at paras. 70, 103. 2 Exhibit RPD-1, RPD Record, Exhibit 2, p. 20, at para. 4. 3 Ibid., at para. 9. 4 Transcript of the RPD Hearing, dated August 25, 2021, at pp. 22-23. 5 Ibid., at pp. 18-19. 6 Ibid., at p. 17. 7 Ibid., at p. 21. 8 Ibid., at p. 23. 9 A.B. v. Canada (Citizenship and Immigration), 2020 FC 915 (CanLII). 10 Exhibit RPD-1, RPD Record, RPD Reasons, p. 6, at para 20. 11 NDP for Kazakhstan, 31 August 2021, item 2.7. ?In the Name of Unity: Addressing Discrimination and Inequality in Kazakhstan. Equal Rights Trust. December 2016, at p. 129. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-14859 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français