Date: 20040514
Docket: IMM-2115-03
Citation: 2004 FC 700
OTTAWA, ONTARIO, MAY 14, 2004
Present: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
VLADIMIROS EMINIDIS
ELZA EMINIDI
ANDREAS EMINIDIS
MARIA EMINIDOU
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel), under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act). In this decision, the panel determined that the applicants are not Convention refugees within the meaning of section 2 of the Immigration Act, R.S.C. 1985, c. I-2.
FACTUAL BACKGROUND
[2] The principal applicant is a citizen of Russia as well as Greece. His wife and his two children are only citizens of Greece. They all state that they have a well-founded fear of persecution: in the applicant's case, based on his political opinion, in Russia as well as Greece, and, in the case of the other members of the family, based on their membership in a social group (the family).
[3] In Russia, the applicant launched a knitting business which was very successful. His success caused jealousy in his community, and his family then began to have problems. His two children were harassed and assaulted at school.
[4] In 1999, also in Russia, the principal applicant applied for a position as chief of administration for the region. During the election campaign, he criticized the existing administration. In the meantime, he had also increased his commercial activities, which had some unpleasant aspects. These unpleasant aspects (surveillance of influential people with hidden cameras) led the militia to take steps to search his premises.
[5] Because of these events, the applicant decided to leave Russia to join his family in Greece. He alleged that he received phone calls from Russia the day after he arrived in Greece. On December 4, 1999, there was an attempt to kidnap him, but he resisted. The applicant continued to receive threatening phone calls. He left Greece on January 22, 2000, to come to Canada.
[6] On April 5, 2000, his daughter was almost kidnapped by a stranger. The principal applicant's wife filed a complaint with the police five days later, but nothing came of it. For her own safety and the safety of her children, she had to leave Greece with them to join her husband in Canada.
IMPUGNED DECISION
[7] The panel accepted the proposition that the applicants would not be protected in Russia. However, the issue of protection by the Greek State had to be analysed. The panel said that the applicants apparently obscured the facts in order to show that the Greek State was unable to protect them. The principal applicant claimed that Greece, which has a small population, could not stop the substantial number of Russian nationals who had illegally entered the country. In the panel's opinion, the documentation about the country filed by the applicants' counsel seemed to say something else entirely. First, it did not refer to the Russians at all, but rather to people coming from Turkey, Iraq and Iran. Next, it clearly explained that the Greek government had no agreement with the governments of these countries allowing it to remove these people who had gained illegal entry. Therefore, the applicants did not provide clear and convincing proof that the Greek State was unable to protect them.
ISSUE
[8] The only issue to determine is whether the panel's decision is one that warrants the Court's intervention.
APPLICANTS' SUBMISSIONS
[9] The applicants claim that the panel was required to comment on the evidence and to explain the relevance of the evidence. According to them, the documentary evidence which was not addressed by the Board in its reasons bears on facts that are at the very heart of the claim. This omission is fatal to the Board's decision: Gill v. Canada (Minister of Citizenship and Immigration) 2003 FCT 656; G.D.C.P. v. Canada (Minister of Citizenship and Immigration) 2002 FCT 989.
[10] The applicants submit that the panel cannot rely only on general documentary evidence without taking into account the unique situation of the applicants or their testimony about the specific aspects of their situation. It was never declared that the applicants were not credible and, accordingly, all of the applicants' allegations are true.
RESPONDENT'S SUBMISSIONS
[11] The respondent submits that a simple review of the reasons for the decision shows that the panel analysed the documentary evidence as well as all of the facts. Further, the respondent states that a simple review of the reasons for the decision clearly demonstrates that the panel took the applicants' testimony at the first hearing into account even if it did not explicitly set out all of the elements in its reasons.
[12] The respondent submits that the applicants did not discharge their burden of proof by demonstrating that there was a reasonable possibility that they would be persecuted by Russian criminals if they were to return to Greece. The applicants had to show that their fear had an objective basis, which they failed to do.
ANALYSIS
State protection
[13] With respect to the applicants' allegations, it is important to mention that their statements must be considered truthful, unless there is reason to doubt their truthfulness. In Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302, Heald J.A. wrote:
It is my opinion that the Board acted arbitrarily in choosing without valid reasons, to doubt the applicant's credibility concerning the sworn statements made by him and referred to supra. When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness. . . . On this record, I am unable to discover valid reasons for the Board doubting the truth of the applicant's allegations above referred to.
[14] However, in this case, the panel had reason to have doubts. The documentary evidence is not consistent with what the applicants said with respect to the most important aspect of their claim, namely the State's protection of them. The panel analysed the documentary evidence and from it drew the conclusion that the Greek State can protect its citizens. It is the panel's responsibility to ask if the applicants availed themselves of their country's protection before claiming refugee status in Canada.
The Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality. Any home state protection is a claimant's sole option when available since international refugee protection is to serve as "surrogate" shelter coming into play only upon failure of national support. The inability of a state of nationality to protect can be established where the claimant has actually approached the state and been denied protection. (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689)
[15] The burden is on the applicants to prove that they are unable to avail themselves of their own country's protection. The applicant says that the Russian militia has infiltrated Greece because of the geographic proximity of the two countries. This would not be possible in Canada, because the geographical distance between Russia and Canada is vast. Nevertheless, the applicant must show that he is physically prevented from seeking his government's aid or that the government itself is in some way prevented from giving it: Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (Q.L.).
[16] The fact that the panel preferred the documentary evidence, even though the applicants had been considered credible, is not an error. It is within the panel's jurisdiction to do so and it is open to it to decide what weight to give the evidence before it. Rouleau J. wrote in Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (Q.L.):
Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the Applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the Applicant's testimony but chose to place more weight on the documentary evidence.
[17] In a more recent decision, Bustamante v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 643 (Q.L.), Martineau J. reiterated the same principle:
In spite of the applicant's counsel's assertion, the case at bar does not rest on an adverse credibility finding made by the Board. The issue here is whether the Board could reasonably come to the conclusion that the applicant has not met his onus to provide satisfactory evidence that he meets the Convention refugee definition. The Board simply preferred the documentary evidence to the applicant's assertions. In this regard, the Board is entitled to give more weight to documentary evidence, even if it finds the applicant trustworthy and credible . . .
The "presumption" that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.
[18] The panel explained that the applicants had not proved that the Greek government was unable to protect them. In the panel's opinion, no government that makes any claim to democratic values or respect for human rights can guarantee the protection of all its citizens at all times. Who is to say that the applicants in question have more protection in Canada? In this case, the panel stated that it would be unreasonable for the applicants to expect their government to always be successful at protecting people in their situation.
. . . where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection. (Villafranca, supra)
CONCLUSION
[19] In light of the foregoing, and especially the fact that the panel preferred the documentary evidence to the applicants' testimony, which the panel is entitled to do, there is no reason for this Court to intervene in the panel's decision.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No serious question of general importance is certified.
"Sean Harrington"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2115-03
STYLE OF CAUSE: VLADIMIROS EMINIDIS
ELZA EMINIDI
ANDREAS EMINIDIS
MARIA EMINIDOU
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 6, 2004
REASONS FOR ORDER
AND ORDER: HARRINGTON J.
DATE OF REASONS: MAY 14, 2004
APPEARANCES:
Michel Le Brun FOR THE APPLICANTS
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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