Date:
20120711
Docket:
IMM-8429-11
Citation:
2012 FC 875
Ottawa, Ontario, July 11, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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ROMAN CEBAN
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant, Roman Ceban, seeks judicial review of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated
October 21, 2011. The Board found that he was neither a Convention refugee nor
a person in need of protection and rejected his claim.
I. Facts
[2]
A
citizen of Moldova, the Applicant began participating actively in the Tae Kwon
Do Federation in 1994. His trainer was replaced by a man named Oleg Vasile
Sclifos in 2004. Competing in international competitions in Moldova and the Ukraine, the Applicant noticed that some of the superior fighters from his team were
losing matches to inferior opponents. When he questioned what was going on, his
trainer responded “we will see when your time comes.”
[3]
In
February 2008, the Applicant’s trainer told him to throw the upcoming match as
a lot of money was at stake. The Applicant refused and won the match. His
trainer was angry with him and made clear that many people, including police
officers, had lost money betting on the match. He also told the Applicant that
he needed to pay $12,000 US to settle his debts.
[4]
The
Applicant confided in a fellow team-mate that he would not agree to
match-fixing. He was subsequently attacked by three other team-mates. The
Applicant claimed that he did not believe he could go to police because of the
trainer’s suggestion that they were also involved in betting and what he
observed during training sessions and competitive matches.
[5]
With
the aim of leaving Moldova, the Applicant unsuccessfully applied for a visa to
the US in 2008. Facing continued pressure from the trainer, he responded
to an advertisement to work in Canada as an individual with experience in the
fast food industry. He was granted a Canadian work visa on November 24, 2008.
[6]
After
leaving Moldova, the trainer and his criminal friends began to extort money
from the Applicant’s parents. In November 2009, his father was beaten when he
refused their demands. As a consequence, the Applicant brought a claim
for refugee protection in Canada on November 23, 2009.
II. Decision
Under Review
[7]
The
Board considered the Applicant to be a “generally credible witness as to the
personal historical basis for his claim.” It nonetheless found that the
Applicant was not a member of a particular social group because he feared
criminality and this does not establish a nexus to a Convention ground under
section 96.
[8]
The
Board considered state protection to be the determinative issue. Moldova was recognized as a fledging democracy with a parliamentary system. At the same
time, however, the Board acknowledged concerns associated with police
corruption.
[9]
The
Board addressed the Applicant’s contention that the police are corrupt in Moldova and worked with the trainer. Regardless, the Board concluded “[w]hen I asked the
claimant if he saw these police officers making bets at the competitions, he
could not confirm this was the case. I find, on a balance of probabilities,
the claimant’s belief that corrupt police officers are working directly with
his trainer to be speculative.” The Board also found it “reasonable to expect
that if the claimant’s safety and life was at risk due to these extortion
demands, the claimant would have made greater efforts to bring his concerns
before senior sports Federation officials or to have left the sports Federation
itself.”
[10]
A
letter from the Applicant’s father regarding the extortion demands and
asserting that police beat him after making a report and were complicit was
given little weight. His father had an interest in the case and was not called
as a witness for cross-examination.
[11]
The
Board ultimately concluded that the Applicant had “not advanced clear and
convincing evidence of the state’s inability to protect him in order to rebut
the presumption that Moldova is capable of providing protection.”
III. Issue
[12]
The
Applicant raises only one issue:
(a) Did the Board err in its state protection
analysis by finding the Applicant’s belief that corrupt police were working
with his trainer was speculative?
IV. Standard of Review
[13]
The
standard of review governing assessments of state protection is reasonableness (Mendez v
Canada (Minister of Citizenship and Immigration), 2008 FC 584, [2008] FCJ
no 771 at paras 12-13). This means that the Court will only intervene
where the decision lacks justification, transparency and intelligibility or
falls outside the range of possible, acceptable outcomes defensible in respect
of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190 at para 47; Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 59).
V. Analysis
[14]
The
Applicant asserts that the Board misconstrued or ignored evidence contrary to
its conclusion that the Applicant’s belief that corrupt police officers were
working directly with the trainer was speculative. He directs the Court’s
attention to relevant portions of the transcript of his testimony. According
to the Applicant, he identified police officers at training and making bets
during the competition as well as referring to a friendly relationship between
the police and his trainer. He therefore considers the Board’s conclusion
unreasonable, particularly given that he was recognized as a credible witness.
[15]
The
Respondent maintains, and I agree, that the Board’s reasons explicitly address
the testimony related to the Applicant’s beliefs of police involvement. The
Board considered all of the relevant evidence and found that the Applicant
could not confirm he saw police making bets at the competition as this was
based on the information of his trainer.
[16]
Indeed,
the Board provides a relatively clear and detailed synopsis of the Applicant’s
testimony at paragraph 31 of its reasons:
While living in Moldova, the claimant indicated that
he never submitted a complaint to the police as he believed the police are
working in collusion with his trainer and that the police generally in Moldova are corrupt. When I asked him why he believed the police were directly involved
with his trainer, he testified that his trainer had told him so. In addition,
he testified that he saw uniformed officers in his training matches and that
these police officers also attended the competitions in plain clothes. When I
asked the claimant if he saw these police officers making bets at the
competition, he could not confirm this was the case. I find, on a balance of
probabilities, that claimant’s belief that corrupt police officers are working
directly with his trainer to be speculative.
[17]
This
synopsis reasonably reflects the Applicant’s testimony. He remarked on the
corrupt nature of the police and suggested he had seen police at training and
during competitions. When pressed as to how he noticed the betting, however,
the Applicant stated “[s]o in February of 2008 I saw during the
competition how they bet and the trainer told me that, in fact, in this case
police is involved.” As evident in its reasons, the Board’s concern was that
the Applicant could not confirm and it was unclear that he witnessed the police
officers at issue making bets on the competition.
[18]
This
Court has stressed in the past that the subjective belief of applicants that
they could not avail of themselves of state protection is insufficient. The
test for whether state protection “might reasonably be forthcoming” is
objective (see for example Judge v Canada (Minister of Citizenship and
Immigration), 2004 FC 1089, [2004] FCJ no 1321 at paras 13; Castaneda v Canada (Minister of Citizenship and Immigration), 2010 FC 393, [2010] FCJ no 437 at
para 26).
[19]
The
Board considered the Applicant’s testimony but still found the degree of police
involvement speculative. In light of the evidence presented, that conclusion
was reasonable, even if the Applicant disagrees with the Board’s overall
assessment. Moreover, it is not a comment on the Applicant’s credibility so
much as a need to demonstrate an objective basis for his belief that the police
would not protect him because they were directly involved with the trainer’s
match-fixing activities. The Applicant still had an obligation to approach the
police or seek other avenues of protection thereby allowing the state an
opportunity to respond (see Castro v Canada (Minister of Citizenship and
Immigration), 2006 FC 332, [2006] FCJ no 418 at paras 19-20). As an
alternative, the Board also suggested that the Applicant could have done more
to bring his concerns to the attention of officials in the sports Federation.
VI. Conclusion
[20]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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