Date: 20091019
Docket: IMM-693-09
Citation: 2009 FC 1061
Toronto, Ontario, October 19, 2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
LIOUBOMIR IVANO NALESNIK
OLGA NALESNYK
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (“IRPA”), for judicial review of a decision
of a Pre-Removal Risk Assessment Officer (“the Officer”), dated January 16,
2009, rejecting the applicants’ application for a Pre-Removal Risk-Assessment.
[2]
Lioubomir Ivano
Nalesnyk and his wife Olga Nalesnyk (together, “the Applicants”) are citizens
of Ukraine.
[3]
In 1994, criminal
gangs attempted to extort money from Mr Nalesnyk, who operated a small
business, and started attacking him after he refused to give in to their
demands. First, Mr Nalesnyk was stabbed; then, his store was set on fire. The
Applicants’ house was also set on fire, and members of Mrs Nalesnyk’s family
were assaulted. The Applicants say that they have complained to the police, but
nothing was done to protect them or bring the attackers to justice.
[4]
Fearing
further attacks, the
Applicants came to Canada in 1994 on visitors’ visas, and have resided in
Canada ever since.
[5]
The
Officer accepted the Applicants’ submissions, which were supported by extensive documentary evidence, with
respect to the attacks in 1994.
[6]
However, he rejected
their submissions with respect to the alleged continued attacks on their family
after they left Ukraine, as the record contained “no submissions
from any family members confirming the continuing threats made by the gangs since
the applicants left Ukraine.”
[7]
As a result, taking
into account the fact that the original attacks on the Applicants had taken
place 14 years ago, the Officer concluded that the Applicants “provided
insufficient objective evidence indicating they continue to be at risk from the
gang members.”
[8]
Furthermore, the
Officer concluded that the evidence submitted by the Applicants is
“insufficient … to rebut the presumption of state protection in Ukraine.” The Officer noted the lack of
detail in the Applicants’ explanations of their attempts to seek state
protection. While he recognized the pervasiveness of police corruption and of
organized crime in Ukraine, he also noted the progress being made by that country in
bringing order to its police forces. In sum, he found that the Applicants
failed to discharge their burden to rebut the presumption of protection by
presenting the “clear and convincing proof” the Supreme Court required in its decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 726.
[9]
The
Applicants submit that the Officer made an implicit negative credibility
finding against them. They note that the Officer rejected their claims that
their relatives have been harassed and attacked after their departure from Ukraine, and are still being attacked
or harassed “once or twice a year.”
[10]
The
Respondent submits that the “Officer’s negative determination in this regard
amounts simply to a determination based on the assessment of the evidence and
the sufficiency of the evidence and not to a finding of credibility or lack
thereof.” The Respondent notes that the Officer accepted the Applicants’
version of the 1994 incidents, which was backed up by evidence. His rejection
of the Applicants’ version of subsequent events was due to lack of evidence,
not to any credibility finding.
[11]
I agree
with the Respondent. The Applicants have not submitted any documents in support
of their claims that their relatives are still being attacked and harassed, and
it was open to the Officer to find that the mere assertions made in the
Applicants’ affidavits are not sufficient to tip the balance of probabilities
in their favour. As pointed out by the Respondent, this was their legal
burden, Carillo v. Canada, [2008] F.C.J. no 399, 2008 FCA 94 at
paragraphs 17 and 18.
[12]
The
Officer’s finding that the Applicants’ evidence was simply not persuasive is
not unreasonable given the paucity of and the lack of detail in that evidence.
[13]
Thus, the issue
of state protection and of the burden of proof to be discharged by a refugee claimant
or an applicant for protection does not arise.
[14]
For these
reasons, the application for judicial review of the decision is dismissed.
There is no need to certify a question for an appeal for the Court of Appeal on
the quality of evidence required to rebut the presumption of the state
protection.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review of the
decision be dismissed. There is no need to certify a
question for an appeal for the Court of Appeal on the quality of evidence required
to rebut the presumption of the state protection.
“Danièle
Tremblay-Lamer”
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