Date: 20030718
Docket: IMM-3931-02
Citation: 2003 FC 901
OTTAWA, ONTARIO, THIS 18th DAY OF JULY, 2003
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
LIUDMILA FEDOR PLYASOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, a 56 year-old citizen of Russia, seeks judicial review of the decision of the Immigration and Refugee Board (Refugee Division) (the "Board") dated July 12, 2002, wherein the Board determined that she was not a Convention refugee pursuant to subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") because she has an internal flight alternative ("IFA") in Krasnoyarsk.
[2] The applicant fears persecution in Russia at the hands of the Russian nationalists as she is an ethnic Buryat. From 1969 until 1991, she lived in Krasnoyarsk, in Siberia where 80% of the population was of Russian nationality and the remaining 20% was made up of minority nationalities. The applicant and her family left Krasnoyarsk at the beginning of the perestroika. They moved to Gelendjik, in Southern Russia, as a result of problems that her son and husband had encountered. In Gelendjik, the applicant started her own business of interior decorating. She owned this business from 1993 until 1999.
[3] There was no issue that the applicant had a well-founded fear of persecution in Gelendjik, based on the experiences of her husband and her son in that city (the latter having been found to be a convention refugee in Canada). Numerous examples of discrimination and violence against the applicant can be provided but the last one is probably the most important. On December 10, 1999, the applicant was brutally attacked by Cossacks on the street in Gelendjik. She was taken to the hospital, then spent several weeks recuperating in bed in the care of friends and neighbours. On December 30, 1999, the son of the applicant's friend came to Gelendjik, and drove her to her friend's home in Krasnodar. She was afraid to return to Krasnoyarsk, where she had not been for ten years. Although the Cossacks were concentrated in southern Russia, the applicant feared them, or similarly-minded groups in Krasnoyarsk as well, on the basis that, in her experience as a Buryat, "people and their attitudes are the same" throughout the country.
[4] From that point on, the applicant tried to arrange her flight from Russia. She did not return to Gelendjik, staying with friends first in Krasnodar and then Moscow. She arrived at the Canadian border on October 11, 2000 and on the same day stated her intention to make a refugee claim to an immigration officer.
[5] The Board dismissed the applicant's claim because, in its opinion, an IFA existed in Krasnoyarsk. First, the Board considered that there was no direct evidence of Cossack activity in Krasnoyarsk. Second, the Board considered that while it would be difficult to obtain a propiska (this document would enable her to reside and work legally in Krasnoyarsk), the applicant would nevertheless be able to reestablish herself in Krasnoyarsk.
[6] The applicable test to determine whether an IFA exists has been set out by the Federal Court of Appeal in Rasaratnam v. Canada (Minister of Employment & Immigration) (C.A.), [1992] 1 F.C. 706 ("Rasaratnam") which states as follows at paragraphs 4, 6 and 7:
The appellant submits the following propositions as prerequisites to a finding that a claimant is not a Convention refugee because of an IFA.
First, the Board must be satisfied on the evidence before it that the circumstances in the part of the country to which the claimant could have fled are sufficiently secure to ensure that the appellant would be able "to enjoy the basic and fundamental human rights".
Second, conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refuge there.
...
In my opinion, the IFA concept is inherent in the Convention refugee definition. That definition requires the claimant to be outside the country of nationality or former habitual residence and unable, or unwilling, to return to it by reason of a well-founded fear of persecution for one of the stated reasons: race, religion, nationality, membership in a particular social group or political opinion. I see no need to reach a concluded opinion that fear of persecution so circumscribed is necessarily co-extensive with deprivation of the enjoyment of "the basic and fundamental human rights". I would, accordingly, restate the first proposition: the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.
I find no fault with the second proposition.
(My emphasis)
[7] The Court in Thirunavukkarasu v. Canada (Minister of Employment & Immigration), [1994] 1 F.C. 589 ("Thirunavukkarasu") also stated:
... Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.
...
... Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?
(My emphasis)
[8] Applying these principles to the case at bar, the Board had to determine first whether, on a balance of probabilities, there was no serious possibility of the applicant being persecuted in Krasnoyarsk, and second whether, in all the circumstances including circumstances particular to her, conditions in Krasnoyarsk were such that it would not be unreasonable for the applicant to seek refuge there.
[9] Since the IFA test has two aspects, each must be considered separately. This was done by the Board in the case at bar. However, I do not have to decide whether the Board erred in its determination that the applicant would be safe in Krasnoyarsk (the first part of the test) since I found that it was patently unreasonable for the Board to conclude that the conditions in Krasnoyarsk were such that it would not be unreasonable for the applicant to seek refugee there (the second part of the test). More particularly, the Board's conclusion in this respect was made in an arbitrary and capricious manner. It is apparent that the Board completely ignored the evidence submitted in this regard by the applicant.
[10] In studying whether it would be reasonable to expect the applicant to seek internal refuge before coming to Canada, the IFA must be an area which is realistically accessible to her and any barriers to relocation should be reasonably surmountable (Thirunavukkarasu, supra). Uncontradicted evidence on record clearly shows that it is not a realistic and attainable option for her.
[11] The applicant had handed her internal passport to the authorities when she left the country. According to the applicant, it could be retrieved in Gelendjik, or a bribe could be paid to have it transferred to another city. The Board, in its reasons, concluded that the applicant "could go to Krasnoyarsk, get an internal passport, and her information would be transferred from Gelendjik to Krasnoyarsk." The assumption, again, was that she would have sufficient time to wait for this process to unfold. However, according to the US Department of State, adults travelling in Russia must use their internal passport to register with local authorities "for visits of more than 3 days" [my emphasis] (certified record, at page 346). Moreover, citizens must register to live and work in a specific area within seven days of moving there (ibid).
[12] It is apparent that the Board simply ignored the documentary evidence indicating that because of residential registration rules (the propiska) and rules regarding internal passports, the applicant would not have the luxury of staying in Krasnoyarsk while waiting for her propiska to be issued - even if she did have contacts there who could help her. In Gelendjik, where she did have relatives supporting her, it took the applicant a year and half to obtain her propiska. According to the documentary evidence, after three days in Krasnoyarsk without an internal passport, or seven days without a propiska, she would be at risk of being returned to Gelendjik.
[13] The Board acknowledged that the applicant would have to pay bribes in order to obtain both her internal passport and her propiska in Krasnoyarsk. "[B]ribery is common for many if not most things in Russia," it states in the reasons for decision. "It is a fact of life there". That being said, the Board completely disregarded or otherwise failed to consider the uncontradicted testimony of the applicant that she had no money to pay bribes (and which is not questioned by the Board in its decision). Moreover, the evidence submitted by the applicant shows that "unless a person is rich, has generous and rich relatives in the area, has "forced migrant" status, or is from the army, the chances of getting registered in a new city are almost nil" (affidavit of Pr. Salomon, at para. 10).
[14] At paragraph 12 of his Affidavit Pr. Salomon also notes:
... Living without propiska, even for a citizen of the Russian Federation like Ms. Plyassova, puts a person in a truly second-class position, for it means in most places no access to schools, no health care provided by the state, no right to vote, and vulnerability to hassles initiated by the police. From a practical point of view, if Ms. Plyassova failed to obtain permanent registration in another part of Russia, she would be forced to return to Gelendjik where she is registered and face the full force of the wrath of the local Cossacks.
(My emphasis)
[15] In a similar case, Kandiah v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 153 (T.D.) ("Kandiah"), Gibson J. concluded at paragraphs 9 to 11 that:
Before me, counsel for the respondent acknowledged that the CRDD's finding that the male applicant was able to raise a large sum of money in a short period of time while in Colombo by asking friends who live there simply did not accord with the evidence. The applicants are essentially without assets. They have no family and no friends in Colombo. They have not lived there for many years. There is simply no evidence that they would be able to raise funds to support themselves in Colombo. The CRDD's analysis, on the second aspect of the IFA test, therefore stands or falls on its finding regarding the availability of social services or a universal "social network".
Social services in Colombo, whatever their merits, would only be available to those who are permitted to live in Colombo and to access those services. The CRDD's analysis is simply incomplete. It makes no finding that, if returned to Sri Lanka from Canada, the applicants, whose experience and heritage are in the north of Sri Lanka, would be permitted to stay in Colombo where the evidence clearly establishes a permit system is in place for Tamils from the North. There is no finding that, in the words of Mr. Justice Linden in Thirunavukkarasu, the IFA destination is "realistically accessible" to the applicants other than as a transit point.
I return to the quotation from Thirunavukkarasu above: "An IFA cannot be speculative or theoretical only; it must be a realistic attainable option". Thus, on the facts of this matter, Colombo must be "realistically accessible" to the applicants. Any barriers to getting there and staying there must be reasonably surmountable. In the light of the pass system that exists, I conclude that the CRDD's analysis is flawed. It simply fails to demonstrate that the IFA identified by it for the applicants is anything more than speculative or theoretical only. That is not to say that the conclusion reached by the CRDD might not have been available to it on the totality of evidence before it. But its analysis simply fails to demonstrate that the test for an IFA has been met.
(My emphasis)
[16] In the case at bar, there is ample evidence concerning the risk to the applicant to be returned to Gelendjik and to be prohibited access to social services without a propiska. Furthermore, there is no evidence that she will be able to support herself without any resources of any kind such as connections and money. Her circumstances are, therefore, comparable to the facts in Kandiah, supra, where the Court allowed the application.
[17] I conclude that the evidence before the Board does not support a finding that obtaining a propiska, and therefore security, in Krasnoyarsk, was realistic in the applicant's case, given that she had not lived in Krasnoyarsk for ten years, had no relatives there, faced discrimination as a Buryat, had no money to pay a bribe (which is common practice throughout Russia as pointed out by the Board) and had an extremely short period of time within which to obtain both her internal passport and her propiska before putting herself at risk of forcible return to Gelendjik. Therefore, I conclude that the Board has failed to properly take into account the circumstances of the individual applicant as required by the applicable test and thereby erred in law.
[18] Finally, the present case concerns an improper application of the test already set out in Rasaratnam, supra, and Thirunavukkarasu, supra, and there is no question of general importance raised by this proceeding. Accordingly, no question of general importance will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The decision of the Immigration and Refugee Board (Refugee Division) dated July 12, 2002, wherein it decided that the applicant was not a Convention refugee pursuant to subsection 2(1) of the Immigration Act, is set aside. The matter will be remitted back to a differently constituted panel for redetermination. No question of general importance will be certified.
Judge
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3931-02
STYLE OF CAUSE: LIUDMILA FEDOR PLYASOVA v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JUNE 16, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: JULY 18, 2003
APPEARANCES:
MR. MICHAEL BOSSIN FOR THE APPLICANT
MS. MARIE CROWLEY FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL BOSSIN FOR THE APPLICANT
COMMUNITY LEGAL SERVICES
OTTAWA, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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