Date: 20081212
Docket: IMM-2247-08
Citation: 2008 FC 1370
Montréal, Quebec, December 12,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
MIROSLAV
STARCEVIC
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (Board),
dated April 16, 2008, wherein the Board determined that the applicant was not a
Convention refugee nor a person in need of protection.
II. Facts
[2]
The
applicant went through an acrimonious divorce with his wife in 1993. Prior to
the divorce being finalized, the applicant’s wife became involved with another
man that she married shortly afterwards.
[3]
The
applicant alleges a risk to his life and cruel and unusual punishment from his
ex-wife new husband, a police officer, should he return to the Czech Republic.
[4]
Shortly
after the breakdown of his marriage, the applicant began to experience a series
of alleged persecutory incidents, all of which are said to be connected to his
ex-wife and her new husband (i.e. assault causing bodily harm, frivolous legal
actions leading to a wrongful criminal conviction, defamation and arson).
III. The Impugned
Decision
[5]
The
Board concluded that the applicant’s alleged fear resulted from a vendetta or
criminal activities of his ex-wife and her new husband, and is not linked to a
Convention ground. In other words, the Board found that there was no nexus
between the harm alleged by the applicant and the Convention definition.
[6]
Based
on the circumstances, the Board was also satisfied that the applicant had an
alternate viable flight alternative, namely Prague where adequate
state protection exists and would be available should the applicant experience
any further incidents of persecution from his ex-wife’s husband.
[7]
Consequently,
the Board concluded that the applicant is not a Convention refugee, as he does
not have a well-founded fear of persecution for a Convention ground in the Czech Republic.
IV. Issues
[8]
Was
the Board’s decision unreasonable?
V. Analysis
Standard
of review
[9]
The
present case involves questions of facts and weight of evidence intertwined
with legal issues which attracts a standard of reasonableness (Dunsmuir v. New
Brunswick,
2008 SCC 9).
Nexus
to Convention Ground
[10]
The
applicant’s alleged fear was at the hands of his ex-wife’s husband. The Board
concluded that the applicant’s fear is a vendetta or criminal activities not
linked to a Convention ground. The determination of the existence of a nexus
between persecutory conduct and the Convention refugee definition is a question
of fact clearly within the Board’s expertise. The Court will not intervene
unless the Board’s determination was made in a perverse or capricious manner.
[11]
According to the definition section 96 of the
IRPA, “[a] Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion” is unable
or, by reason of that fear, unwilling to avail himself of the protection of
each of his country.
[12]
It
has been held by this Court that criminality, revenge, and personal vendetta cannot be the foundation of
a well-founded fear of persecution by reason of a Convention ground for the
simple reason that such a persecution is not related to one of the Convention
grounds.
[13]
The
Board concluded in its decision that the applicant's fear of persecution
related to the series of incidents that he alleges to be the work of his
ex-wife and her new spouse, not to one of the reasons included in the
definition of Convention refugee. Having regard to the evidence on the record,
that conclusion appears to be reasonable for the following reasons.
[14]
Contrarily
to the applicant’s contention that the Board did not consider the totality of
the evidence before it when it decided as it did, it is evident from the reasons
of its decision that it did recognized the many incidents that the applicant
experienced while residing in the Czech Republic. But in
considering such, the Board was enabled to conclude that the applicant’s
evidence was not only inconclusive but it could not establish a link between
the fear of persecution and one of the five grounds of the Convention refugee
definition.
[15]
Recognizing
that a claimant must establish a “well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group
or political opinion”, this Court finds the Board’s conclusion reasonable on
this issue.
[16]
Because
the applicant did not meet the definition of Convention refugee, his
application cannot be granted, since there is no nexus with the persecution
grounds specified in section 96 of the IRPA.
State
Protection
[17]
Having
found that the applicant did not have a nexus to the refugee definition, the
Board examined the issue of state protection for the applicant if he were to
return to his country of origin and experience any further problems or what
state protection would be available to him if he were to report his problems to
a police officer in the Czech Republic.
[18]
Unsatisfied
of the Board’s finding on this issue, the applicant’s argues in light of his
allegations that the Board erred in its analysis of state protection. The Board
appears to have considered all the evidence on this issue and came to a
supportable determination on the record that the applicant had failed to rebut
the presumption of state protection. It is not for this Court to reweigh the
evidence and substitute its conclusions to those of the Board. The Court owes
deference to the Board’s expertise on this issue and is unable to conclude on
the record that the Board’s finding on this issue is unreasonable.
[19]
Refugee
protection is meant to be a form of surrogate protection to be invoked only in
those situations where the refugee applicant has unsuccessfully sought the
protection of his home state (Canada (Attorney General) v. Ward, [1993]
2 S.C.R. 689 at p. 709; Hinzman v. Canada (Minister of Citizenship
and Immigration), 2007 FCA 171 at para. 41).
[20]
No
government that makes a claim to democratic values or protection of human
rights can guarantee the protection of all of its citizens at all times. It is
therefore not enough for the applicant here to merely show that the authorities
of his country have not always been effective in protecting him against his
ex-spouse’s and new husband’s vendetta (Canada (Minister of
Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R.
(2d) 130 (F.C.A.); Ward, above at p. 726). The fact that state does
not provide perfect protection is not in itself a basis for determination that
the state is unwilling or unable to offer reasonable protection in the
circumstances (Milev v. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 907 (F.C.T.D.) (QL)).
[21]
Absent
a situation of a complete breakdown of state apparatus, it should be assumed
that the state is capable of protecting an applicant. It is stated law that to
rebut the presumption an applicant must produce “clear and convincing
confirmation of a state’s inability to protect” (Ward, above, at pp. 724-725).
[22]
Here,
the Board noted that the applicant’s appeal of his unjustified conviction was
successful, and noted also the information he had received as to recourses
available to him if he believed that he had been the victim of criminal
offences. Furthermore, the documentary evidence with regard to the availability
of state protection in the Czech Republic disclosed that while
there are clearly issues of corruption including police corruption in that
country, the government has implemented reforms and actively gone after corrupt
officials and brought them to trial with a number of successful convictions.
The Board considered all the evidence including the applicant’s allegations
that he would not be able to obtain state protection, but found the evidence
showed otherwise and that the applicant had not rebutted the presumption of
state protection with clear and convincing argument.
[23]
It
was up to the Board to conclude as it did on this issue. The Board’s finding on
the availability of adequate state protection is justified, transparent,
intelligible and based on the evidence that the Board had the responsibility to
weigh. It is therefore an acceptable and reasonable finding within the
decision-making process.
Internal
Flight Alternative (IFA)
[24]
The
Court, having considered the applicant’s situation and education, was satisfied
that he would be able to live in Prague which is 200 miles away from the city
he resided before coming to Canada.
[25]
The
applicant had to produce concrete evidence of nothing less than the existence
of such adverse conditions which would jeopardize his life and safety in
relocating to a safe area, as suggested by the Board (Ranganathan v. Canada
(Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.)). The
onus of proof rested at all time on the applicant to show that it would be
objectively unreasonable for him to reside in Prague.
Unfortunately for him, the applicant has not discharged this onus and as a
result was unable to convince the Board of the absence of a flight alternative
in his own country. Moreover, he failed to show this Court that the Board
ignored or misconstrued any evidence in this regard or misapplied the legal
test in its IFA analysis or made any perverse or capricious findings in this
regard. As a consequence, the intervention of this Court is not warranted.
VI. Conclusion
[26]
In
brief, the impugned decision falls within a range of
possible and
acceptable outcomes which are justified in respect of the facts and the law,
and therefore deserves deference from this Court. For these reasons, the Court concludes that the Board did not commit
a reviewable error and that its decision is reasonable. Therefore, the judicial
review application will
be dismissed.
[27]
The
Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is dismissed.
“Maurice
E. Lagacé”
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