Date:
20120719
Docket:
IMM-6834-11
Citation:
2012 FC 902
Ottawa, Ontario, July 19, 2012
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
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MINDAUGAS MARKAUSKAS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mindaugas
Markauskas [the Applicant] applies for judicial review of a decision of a member
of the Refugee Protection Division of the Immigration and Refugee Board [the
Board] dated August 29, 2011, wherein the Board determined that the Applicant
is not a Convention refugee or a person in need of protection [the Decision].
The application is made pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
[the Act].
[2]
The
Applicant, age 31, is a citizen of Lithuania. However, he lived continuously in
the United States [the US] with his parents from 1996 to 2007.
[3]
In
May 2006, the Applicant met his former girlfriend, Milda Stumbryte
[Milda]. She was living in the US without status. Shortly after they met, Milda
returned to Lithuania and then informed the Applicant that she was pregnant.
Their son, Nojus Stumbrys, was born in Lithuania on February 13, 2007.
[4]
Following
Milda’s return to Luthuania, the Applicant lived in Chicago for one year.
Thereafter, he travelled to the city of Kaunas in Lithuania. He and Milda lived
together for two months and then were together for several more months on an “on-and-off”
basis. The relationship completely ended by December 2008. In February 2009,
Milda began to live with her future husband and the Applicant no longer saw his
son.
[5]
Meanwhile,
shortly after the Applicant returned to Lithuania, Milda told him that her
father, Aras Stumbrys [Aras], was involved at a relatively high level in a
mafia organization that trafficked in drugs. In May 2008, Aras met with the
Applicant and told him that, because he was too well informed about Aras’
business, he should join Aras and his associates. Aras explained that the Applicant
did not have a choice and that the work would involve travel to Spain and Italy.
[6]
The
Applicant gave excuses to delay becoming involved with Aras, but Aras was
impatient and began to threaten him, saying that the Applicant could not hide
in Lithuania or anywhere in Europe.
[7]
In
September 2008, the Applicant went to see the police in Kaunas to complain
about Aras’ threats. However, according to the Applicant, the police were
corrupt and immediately contacted Aras. The next day, the Applicant was stopped
by two men on the street and told that he was to leave soon for Spain for his first job and that if he failed to go he should consider himself a “dead
man”.
[8]
The
Applicant continued to delay taking the job with Aras by saying that he wanted
to take care of his son, that his uncle had committed suicide in December 2008,
and that he needed to look after his ailing grandfather.
[9]
The
Applicant’s grandfather passed away in mid-March 2009. When his parents came to
Lithuania for the funeral, he asked them for help and they purchased a plane
ticket so that he could escape. The Applicant arrived in Toronto on April 15,
2009, and was granted visitor status for a six month period.
[10]
According
to the Applicant’s Personal Information Form [PIF], he had been banned from
entering the US for ten years. Nevertheless he attempted to enter the US on September 15, 2009 because he had established a serious relationship with a woman
who was living there. The Applicant was denied entry into the US and was held overnight. When he returned to Canada, he was given a three week visa and,
although he applied to extend his visitor’s status, his request was eventually denied
in a letter from Citizenship and Immigration Canada [CIC] dated March 15, 2010.
Two weeks later, the Applicant applied for refugee status.
THE DECISION
[11]
The
Board had two concerns that led it to reject the Applicant’s claim: (i) the lack
of nexus to a Convention ground and (ii) the Applicant’s credibility.
[12]
The
Board dealt only briefly with the nexus between the Applicant’s claimed ground
of persecution and the Convention. The Board said that the Applicant’s fear of Aras and his criminal organization was related to “plain and simple criminality”. The Board
cited Zefi Skeko v. Canada (Minister of Citizenship and Immigration),
2003 FCT 636, 123 ACWS (3d) 739 and Bojaj v. Canada (Minister of
Citizenship and Immigration), [2000] 194 FTR 315, FCJ No 1524 (QL) for the
proposition that victims of criminality cannot establish a nexus to the
Convention.
[13]
The
Board had two credibility concerns. First, it found that the Applicant had no
valid reason for staying in Lithuania for almost a year after Aras told him in
May 2008 that he must join Aras’ criminal organization or face punishment. The
Board determined that the Applicant’s delay in leaving Lithuania was inconsistent with his claim that he feared for his life and that a reasonable
person would have escaped as soon as possible.
[14]
Second,
the Board disbelieved that the Applicant feared for his life because he did not
file his refugee claim in Canada for almost a year after his arrival. The Board
did not accept that the Applicant needed this entire time to “clear his head
and pull himself together” as he claimed. The Board found that this delay also
showed a lack of subjective fear of persecution.
THE STANDARD OF
REVIEW
[15]
The
parties agree, and I accept, that reasonableness is the applicable standard of
review.
THE ISSUES
[16]
The
Applicant raises the following issues:
(i)
Did
the Board fail to consider whether or not the Applicant is a person in need of
protection under section 97 of the Act?
(ii)
Did
the Board fail to consider the Applicant’s explanations when it made its
adverse credibility findings based on delay?
Issue
1 Did the Board fail to consider whether or not the Applicant is a
person in need of protection under section 97
of the Act?
[17]
In
this regard, the Board said the following:
Given the panel’s credibility findings and lack of
well-foundedness of his fear, I find that, on a balance of probabilities, the
claimant is not a person in need of protection under section 97(1)(b), as there
is not risk to his life or a risk of cruel and unusual treatment or punishment,
should he return to Lithuania. There was also no evidence adduced that would
support a finding that the claimant faces a danger of torture under section
97(1)(a).
[18]
The
Applicant relies, in particular, on the decision of
Mr. Justice Martineau in Kandiah v Canada (Minister of Citizenship
and Immigration), 2005 FC 181, 137 ACWS (3d) 604 at para 18 in which he
said that claims under section 97 of the IRPA must be assessed even if there is
a negative determination on the issue of subjective fear.
[19]
However,
when Justice Martineau’s reasons are read as a whole, it becomes clear that
they deal with a situation in which documents about country conditions showed
that an individual was actually at risk in spite of the absence of a subjective
fear. That is not the situation in this case.
[20]
In
my view, because the delays were not adequately explained, it was reasonable
for the Board to conclude that the Applicant was not credible when he said he
feared Aras. That conclusion eliminated the only evidence of risk faced by the
Applicant. Since there was no objective evidence of any other risk, the Board’s
decision was reasonable.
Issue
2 Did the Board fail to consider the Applicant’s explanations when
it made its adverse credibility findings based on
delay?
[21]
The
Applicant says that the Board disregarded six reasons which explained his delay
in leaving Lithuania:
(a)
His
grandfather’s ill health;
(b)
His
wish to stay with his son;
(c)
His
uncle’s suicide;
(d)
His
lack of funds;
(e)
His
fear of endangering his family in the US;
(f)
His
effort to seek police protection.
[22]
In
my view, it is clear that the first three reasons were excuses given to Aras to
delay the Applicant’s departure for Spain and not explanations for his delay in
coming to Canada. Nevertheless, the first two were mentioned by the Board.
Regarding the other explanations, I am not satisfied that they required mention
in the Board’s Decision. The lack of funds and fear for his family in the US were not mentioned in his PIF and his reference to the police is hardly an explanation for
staying in Lithuania, because contact with them allegedly exacerbated his
problems.
[23]
Further,
there was no evidence that Aras ever threatened the Applicant’s family in the US or that his criminal network extended to North America. As well, if his parents were prepared to
fund his travel to Canada in March 2007, there is every reason to suppose that,
had they been asked earlier, they would have given him money. Finally, the
evidence was that the Applicant was no longer seeing his son.
[24]
In
circumstances in which the explanations are clearly without merit, it is not
necessary for the Board to refer to every explanation offered by an Applicant.
[25]
Regarding
the Applicant’s one-year delay in making his refugee claim in Canada, the Board
did not believe that he needed the time to clear his mind and pull himself
together and that he was afraid to talk to Canadian authorities. These
explanations were mentioned in the Decision and, in my view, it was entirely
reasonable for the Board to reject them.
CERTIFIED
QUESTION
[26]
No
question was posed for certification under section 74 of the Act.
JUDGMENT
THIS
COURT’S JUDGMENT is that, for the
reasons given above, this application for judicial review is dismissed.
“Sandra
J. Simpson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6834-11
STYLE OF CAUSE: Markauskas
v The Minister of Citizenship
and Immigration
PLACE OF HEARING: Vancouver
DATE OF HEARING: June 28, 2012
REASONS FOR JUDGMENT: SIMPSON
J.
DATED: July 19, 2012
APPEARANCES:
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Victor Ing
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FOR THE APPLICANT
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Sarah-Dawn Norris
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Miller Thomson LLP
Vancouver, British Columbia
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FOR THE APPLICANT
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Myles J. Kirvan
Deputy Attorney General of Canada
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FOR THE RESPONDENT
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