Date:
20121207
Docket:
IMM-4563-11
Citation:
2012 FC 1449
Ottawa, Ontario,
December 7, 2012
PRESENT: THE CHIEF JUSTICE
BETWEEN:
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GRZEGORZ KOSTRZEWA
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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]
Mr.
Kostrzewa is a 24 year old gay citizen of Poland who fears persecution for
reasons related to his sexual orientation, should he be required to return to
that country.
[2]
He
claims that the Refugee Protection Division of the Immigration and Refugee
Board of Canada committed the following reviewable errors in rejecting his claim
for protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA]:
i.
it
misapprehended the evidence available to it in finding the city of Krakow to be a viable internal flight alternative [IFA] within Poland;
ii.
it
unreasonably concluded that he does not have a subjective fear of persecution
in Poland; and
iii.
it
failed to consider the applicability of subsection 108(4) of the IRPA in
assessing his application.
[3]
I
disagree. For the reasons that follow, this application is dismissed.
I. Background
[4]
Mr.
Kostrzewa’s fears of persecution and personal harm are based on the general
mistreatment of gay people in Poland and on three assaults to which he was
personally subjected while living in different cities in that country.
[5]
The
first assault occurred in the city of Lodz in August 2007, when he was
threatened and beaten by a friend after disclosing his sexual orientation to
him. The second occurred in Konin in November 2007, when his jaw was broken by
three men, including a bully from one of his former schools who recognized him
as he was walking down the street. The third occurred in Pozan in May 2008,
when he was pushed against a wall and slapped by a group of men who saw one of
his friends kiss him on the cheek outside a bar.
II. Standard
of Review
[6]
It is common ground between the parties that the
standard of review applicable to the findings made by the Board with respect to
the availability of an IFA in Krakow and the Applicant’s lack of subjective
fear is reasonableness. I agree.
[7]
However, Mr. Kostrzewa takes the position that
the Board’s failure to address s. 108(4) of the IRPA is reviewable on a
correctness standard. I disagree. This is a question of mixed fact and law.
Accordingly, it is reviewable on a reasonableness standard (Dunsmuir
v New Brunswick, 2008 SCC 9 at paras 51-55, [2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paras 46-47; Echeverri v Canada (Minister of Citizenship and Immigration) 2011 FC 390 at paras 24-25 [Echeverri]).
III. Analysis
A. The Board’s conclusion
regarding the availability of an IFA in Krakow
[8]
In
its decision, the Board identified the availability of an IFA in Krakow as being the determinative issue in this case.
[9]
Mr.
Kostrzewa submitted that the Board erred in reaching its conclusion on this
issue by failing to consider information set forth in one of the documents upon
which it principally relied, and by reaching a conclusion that was
unreasonable, given that information. I disagree.
[10]
In
reaching its conclusion regarding the availability of an IFA in Krakow, the
Board placed significant weight on a document entitled “Krakow for Everyone,”
which was included in the Board’s National Documentation Package for Poland. The Board cited that document in observing that “there are numerous gay rights
organizations in Poland and that Krakow has a gay-tolerant area, as well as
being host to an annual gay pride parade.” The Board also noted that the
document refers to the existence of gay restaurants, bars and hotels in Krakow,
and states that young people in Poland are more tolerant of and friendly
towards gay people, especially in that city. In addition, the Board noted that
the document states that “gay rights groups are growing in strength and in
number every year, and the sheer number of gay-oriented Polish websites is a
sign of the coming change.”
[11]
However,
the Board did not mention that the document also states that “slightly under
20% of homosexuals surveyed had experienced some level of violence, with a
slightly larger percentage for men than women,” and that “more than 85% of
cases of violence go unreported” because “the police themselves will ridicule
or simply ignore the individual.” According to the document, the “majority of
physical violence is pushing or kicking, but many have reported being punched
or beaten up as well.”
[12]
Mr.
Kostrzewa submits that the Board erred by failing to consider this additional
information in the document. He further asserts that it was unreasonable for
the Board to conclude, in the face of this additional information, that he
would not face a serious possibility of persecution or a risk contemplated by
section 97 of the IRPA. I disagree.
[13]
In
my view, the additional information that was in the document in question did
not so squarely and seriously contradict the Board’s conclusion as to give rise
to an obligation on the part of the Board to explicitly address that
information in the course of reaching its decision. Among other things, there
was no indication whatsoever in the document as to whether the people who
reported having experienced “some level of violence” had such experiences in
the distant past, as opposed to in the last two or three years. There was also
no indication of whether those individuals had experienced more than one such
incident.
[14]
In
the course of reaching its decision on this issue, the Board noted that the
majority of documents in the evidentiary record indicated that discrimination
continues against gay people in that country. The Board also noted that public
figures in Poland have made anti-homosexual comments openly and that the gay pride
parade in 2006 in Krakow was marred by stones and eggs being thrown at the
participants.
[15]
After
reviewing the evidentiary record that was before the Board, I am satisfied that
the material referred to by the Board in reaching its conclusion regarding the
existence of an IFA in Krakow provided a reasonable basis for, and rationally
supported, that conclusion (Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association 2011 SCC 61, [2011] 3
SCR 654 at para 53 [Alberta Teachers]; and Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR
364 at paras 45-49 [Halifax]). In the absence of information in the
evidentiary record which strongly suggested that its conclusion on this point
was unreasonable, the Board’s failure to discuss other information, including
information which may have been contrary to the conclusion it reached, did not
deprive its decision of its rational support, or render that decision devoid of
any reasonable basis.
[16]
Mr.
Kostrzewa also submitted that the Board erred by implicitly finding that the
risk he would face in Krakow would be substantially different from the risk
that he previously faced in Lodz. In this regard, he observed that the
populations and mistreatment of gay people in the two cities is essentially the
same. I disagree.
[17]
The
Board was not under any obligation to compare the situations faced by gay
people in the two cities and to explain why it believed that Mr. Kostrzewa
would not face a serious risk of persecution or physical harm in Krakow, even
though he was assaulted on one occasion in Lodz.
[18]
On
the contrary, Mr. Kostrzewa bore the burden of establishing, with clear and
convincing evidence, why he would face a serious risk of persecution or a
likelihood of a risk contemplated by section 97, should he be required to
return to Poland and live in Krakow (Ward v Canada (Attorney General),
[1993] 2 S.C.R. 689 at 724-725; Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 at para 54; Carrillo v Canada (Minister of
Citizenship and Immigration), 2008 FCA 94 at para 30).
Ultimately, he failed to do so.
[19]
In
oral argument, Mr. Kostrzewa’s counsel attempted to impugn the value of the
document entitled “Krakow for Everyone” by stating that it had been written for
visitors to that city, and did not reflect situation faced by its gay
residents. However, this fails to recognize that the material in the document
that was referenced by the Board provided a reasonable basis for,
and rationally supported, the Board’s conclusion regarding the situation that
he would face as a resident of Krakow. Moreover, as stated above, it was Mr.
Kostrzewa’s burden to demonstrate that he would face a serious possibility of
persecution, or a likely risk contemplated by section 97, if he were to return
to Krakow. It was not the Board’s burden to establish the contrary. In his
written and oral submissions, Mr. Kostrzewa did not identify anything in the
evidentiary record, other than other passages in the above-mentioned document,
and his own experiences (which were considered by the Board) that supported his
case.
[20]
On
the evidentiary record that was before the Board, I am satisfied that it was
entirely reasonable for
the Board to conclude, based on findings discussed above, that he had not met
that burden. That conclusion was well “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” and was appropriately justified, transparent and intelligible (Dunsmuir,
above, at para 47).
[21]
I
would simply add that there was other evidence in the record, including in the
document entitled “Krakow for Everyone,” which provided further support for the
Board’s conclusion regarding the availability of an IFA in Krakow (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paras 12 and 15, [2011] 3 S.C.R. 708).
[22]
Given
the foregoing, the other errors that Mr. Kostrzewa identified in the Board’s
decision, concerning the location and dates of the three assaults to which he
was subjected in Poland, were not material. At paragraphs 5 and 6 of its
decision, the Board identified the correct dates of those assaults. It then did
so a second time at paragraph 11. While it did not specifically mention that
the first assault occurred in Lodz, this was not material to its finding
regarding the availability of an IFA in Krakow. In oral argument, counsel to
Mr. Kostrzewa conceded that the other factual errors identified in Exhibit D to
his affidavit, and not discussed in these reasons for judgment, were not
material.
[23]
The
conclusion reached above regarding the reasonableness of the Board’s IFA
finding is a sufficient basis upon which to dismiss this application. However,
for completeness, I will address below the two other main issues that Mr.
Kostrzewa has raised.
B. The Board’s findings
with respect to subjective fear
[24]
Mr. Kostrzewa submitted that the concerns identified by the Board
with respect to his allegations of subjective fear were unreasonable. I
disagree.
[25]
The
Board identified three concerns in this regard, the most important of which
concerned Mr. Kostrzewa’s reavailments to Poland. There were two such
reavailments. The first was in January 2008, after his initial visit to Canada
in December 2007. That reavailment was prompted by pressure from his family to
finish his school year. The second reavailment was in December 2008, when he
returned to Poland for three weeks, again at the request of his family. On this
occasion, his family, who still did not know that he is gay, promised that he
wouldn’t be left alone at any time and that he could stay at home and perhaps
join them on a trip to Slovakia. Although the Board did not specifically note
that there were two reavailments, it observed that it had “difficulty accepting
that any reasonable person would place themselves in such a risk of harm or
danger as alleged by you for family reunification or fear of losing family
support.”
[26]
In
my view, this observation by the Board was entirely reasonable. As has been
repeatedly held by this Court, a refugee claimant’s reavailment to the
jurisdiction in which he or she fears persecution or a type of harm
contemplated by section 97 of the IRPA seriously undermines allegations of
subjective fear, particularly in the absence of a compelling reason for such
reavailment (Hernandez v Canada (Minister of Citizenship and
Immigration), 2012 FC 197 at
para 21; Ortiz Garcia v Canada (Minister of Citizenship and
Immigration), 2011 FC 1346 at
para 8; Mughal v Canada (Minister of Citizenship and Immigration), 2006
FC 1557 at paras 33-35; Natynczyk v Canada (Minister of Citizenship and
Immigration), 2004 FC 914 at para 69).
[27]
The
Board also expressed concern about Mr. Kostrzewa’s delay in claiming refugee
protection in Canada. In this regard, the Board noted that although he came to Canada in July 2008 and again in January 2009 (after his three-week return to Poland), he did not apply for refugee protection until September 2010. Although Mr. Kostrzewa
testified that he had a valid student visa during that period and was unaware
of the possibility of applying for refugee protection until shortly before he
submitted his application, it was not unreasonable for the Board to draw a
negative inference regarding his subjective fear, based on his failure to apply
for protection within a reasonable period of time after his arrival in Canada (Kaur
v Canada (Minister of Citizenship and Immigration) 2012 FC 1379 at para 20;
Duarte v Canada (Minister of Citizenship and Immigration), 2003 FC 988 at
paras 14-15; Espinosa v Canada (Minister of Citizenship and
Immigration), 2003 FC 1324 at para 17; Huerta v Canada (Minister
of Employment and Immigration), [1993] FCJ 271 (CA)).
[28]
Given
the foregoing, the error made by the Board with respect to Mr. Kostrzewa’s
delay in leaving Poland after the third assault was not material. The same is
true with respect to its erroneous suggestion that Mr. Kostrzewa may not have
applied for refugee protection until his student visa expired.
C. The Board’s failure to
conduct an assessment under subsection 108(4)
[29]
Mr. Kostrzewa submitted that in cases where a reasonable finding of
an IFA would otherwise be determinative, the existence of subjective fear on
the part of an applicant for refugee protection triggers an obligation on the
Board to consider subsection 108(4) of the IRPA. I disagree.
[30]
There
is no obligation on the Board to consider subsection 108(4) unless (i) it has
specifically found that the applicant has suffered past persecution; or (ii)
there is prima facie evidence of past persecution that is so exceptional
in its severity that it rises to the level of being “appalling” or “atrocious”
(Alharazim v Canada (Minister of Citizenship and Immigration), 2010 FC
1044 at paras 44-53; Echeverri, above, at para 32).
[31]
In
the case at bar, the Board did not make a finding of past persecution. It
proceeded directly to a forward looking assessment of whether Mr. Kostrzewa has
a well-founded fear of future persecution, as it was entitled to do (Echeverri,
above, at para 31). In addition, in my view, the three assaults that Mr.
Kostrzewa alleges he suffered did not constitute prima facie evidence of
past persecution that is so exceptional in its severity that it rises to the
level of being “appalling” or “atrocious,” relative to the typical types of
persecution that have been alleged and recognized by the Board or in the
jurisprudence.
[32]
Accordingly,
it was not unreasonable for the Board to have failed to have addressed the
potential applicability of subsection 108(4) to Mr. Kostrzewa in its decision.
IV. Conclusion
[33]
For
the reasons set forth above, the adverse findings reached by the Board with
respect to the availability of an IFA in Krakow and Mr. Kostrzewa’s lack of
subjective fear were not unreasonable. Similarly, it was not unreasonable for
the Board to have failed to explicitly conduct an assessment under subsection
108(4) of the IRPA.
[34]
Accordingly,
this application is dismissed.
JUDGMENT
THIS
COURT ORDERS AND ADJUGES that:
1. This
application is dismissed.
2. There is
no question for certification.
“Paul
S. Crampton”
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