Date: 20101004
Docket: IMM-786-10
Citation: 2010 FC 972
[UNREVISED CERTIFIED
TRANSLATION]
Ottawa, Ontario, October
4, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Alla
Serhiyivna BONDAR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the Act) for judicial review of a
decision by the Refugee Protection Division of the Immigration and Refugee Board
(the panel) dated January 12, 2010. The panel determined that the
applicant was neither a refugee nor a person in need of protection and
therefore rejected her refugee claim.
[2]
The
applicant is a Ukrainian citizen. She was a member of the board of directors of
a company that owned a number of buildings in the city of Kherson. In 2005,
business people interested in these buildings, with the support of the municipal
authorities including the mayor, began to threaten her. When the applicant refused
to give them the buildings, the mayor of Kherson expropriated
them. However, the threats continued. She complained to the federal department
of internal affairs, which referred the case back to the municipal authorities.
[3]
On
November 2, 2007, faced with her failed attempts to stop the expropriation,
the applicant resigned from the board of directors. The threats still continued
until April 2008 when she was threatened at knifepoint.
[4]
In
June 2008, she left Ukraine, leaving documents with her former assistant
that implicated the municipal authorities in the illegal expropriation. That
individual, like the other members of the board of directors, is still in Ukraine and lives
there with no problems. The applicant came to Canada with a
temporary travel document as a visitor to visit her son, who lives here.
[5]
Without
questioning the applicant’s credibility, the panel determined that she would
not be subjected to a risk of persecution or threats to her life if she had to
return to Ukraine. It noted that
the people who wanted the buildings owned by the company that the applicant managed
had succeeded in taking control of them. It also pointed out that the other
members of the board of directors, including the applicant’s assistant who
supported her throughout her battle against the authorities and who is now in
possession of documents implicating those individuals, no longer have problems
in Ukraine. The
applicant no longer has a connection with the company. As a result, the authorities
no longer have any reason to harm her. Thus, according to the panel, “the fear
described by Ms. Bondar no longer exists today.”
[6]
The
applicant submits that the panel refused to consider her testimony about her
fear of persecution in Ukraine. She says that the
panel, which did not question her credibility, could not [translation] “conclude that she would have
no fear if she returned.” In addition, the applicant contends that the panel did
not explain why it rejected her explanations about her fight with Kherson’s municipal
authorities and her vulnerability.
[7]
The
respondent, for his part, submits that the panel’s decision, in addition to
being based on the evidence, is reasonable and supported by sufficient reasons.
He notes that it is the panel’s responsibility, not the applicant’s, to evaluate
the evidence adduced and to make findings based on it. In determining that the
applicant was credible, the panel implicitly recognized that she had a
subjective fear of persecution, but under sections 96 and 97 of the Act she
must also establish that this fear is objectively well-founded or that there is
an objective risk to her life, present or prospective (according to Ward v.
Canada (Attorney General), [1993] 2 S.C.R. 689 at page 723, citing Rajudeen
v. Canada (M.E.I.), [1984] F.C.J. No. 601 (C.A.F.); Sanchez v. Minister
of Citizenship and Immigration, 2007 FCA 99 at paragraph 15).
[8]
A
tribunal’s assessment of the facts “commands a high degree of deference” (Canada (Citizenship
and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 46). The Court
will only intervene if the evaluation is unreasonable, in the sense that it was
“made in a perverse or capricious manner or without regard for the material
before it” (ibid.; Federal Courts Act, R.S.C. 1985, c. F-7, paragraph
18.1(4)(d)). Reasons for decision are sufficient if they “ensure that the administrative
decision is justified, transparent and intelligible” (Nicholas v. Minister
of Citizenship and Immigration, 2010 FC 452) and therefore reasonable.
[9]
In
this case, I am of the view that the panel did not ignore the applicant’s
testimony or determine that she would have no fear if she were returned to Ukraine. Although
the expression used by the panel when it wrote “the fear described by [the
applicant] no longer exists today” may appear ambiguous, it is clear from the
reasons considered as a whole that the panel was referring to the objective
basis of the fear. Thus, it found that although the fear existed in the
applicant’s mind it was no longer justified.
[10] In this
regard, it is useful to note that paragraph 108(1)(e) of the Act
provides that “[a] claim for refugee protection shall
be rejected, and a person is not a Convention refugee or a person in need of
protection, [if] the reasons for which the
person sought refugee protection have ceased to exist”. The difficulty
that a refugee claimant may have in [translation]
“actualizing his or her fear”, which the applicant refers to, is not a reason
to disregard this express statutory rule.
[11] Moreover, the
panel explained clearly why it determined that the applicant’s fear was no
longer objectively well-founded. The people who harassed and threatened the
applicant got what they were seeking and no longer have a reason to harm her.
If they wanted to harm her because she [translation]
“knew too much”, it is logical to think that they would harm her assistant who,
according to the applicant, was in possession of incriminating documents. That
has not happened. This reasoning is transparent, intelligible and justified having
regard to the evidence before the panel. I can only conclude that its decision
is reasonable.
[12] For all these
reasons, the application for judicial review is dismissed.
JUDGMENT
The
application for judicial review of the decision by the Refugee Protection
Division of the Immigration and Refugee Board dated January 12, 2010, is
dismissed.
“Yvon
Pinard”
Certified
true translation
Mary
Jo Egan, LLB
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