Date: 20080422
Docket: IMM-2071-07
Citation: 2008 FC 522
Ottawa, Ontario, April
22, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
NINA
NAUMETS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Naumets is a Ukrainian citizen
who claimed refugee status based on her fear of continued abuse at the hands of
her common law spouse. She began cohabiting with him in 1995, and claims that
he began abusing her in 2000.
[2]
She alleges that she informed
police of the abuse, but claims that she was told that they did not consider
family disputes serious. After an attack which left her hospitalized in July
2004, she left him and went to live with her daughter. Another attack occurred
near her daughter’s house in October, 2004. She claims that a complaint to the
police was not acted upon. She fled to Canada on October 24, 2004 on a one month visitor’s visa.
[3]
Ms. Naumets filed for refugee protection
on October 26, 2005. After a hearing on March 19, 2007, her claim was rejected
on April 30, 2007. This proceeding is for judicial review of that decision.
[4]
The Refugee Protection Division
(RPD) found that she did not have a well-founded fear of persecution for the
purposes of sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA). The Panel member based his decision in part on an
adverse inference drawn from the delay between the applicant’s arrival in Canada and her
application for protection. He also found her allegation that her common law
partner was still pursuing her not to be persuasive, as her only evidence for
this claim were letters from friends and relatives, whom he found to be ‘not
uninterested parties’.
[5]
In the alternative, the RPD found
that Ms. Naumets had failed to rebut the presumption that the Ukraine was
capable of protecting its nationals. He noted that the Ukraine is a
democratic country which is not in a state of collapse, and pointed to various
statutory and community-based initiatives to tackle the admittedly serious
problem of domestic abuse.
Issues
[6]
The
issues are whether the RPD erred in his assessment of the availability of state
protection for battered women in the Ukraine and whether he made any
other reviewable errors.
Standard of
Review
[7]
In
the interim between the hearing in this case and this decision, the Supreme
Court released its decision in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] S.C.J. 9 which significantly altered the framework of standards against
which reviewing courts should assess administrative decisions. While the Court
moved from three to two standards of review, thereby collapsing the two
reasonableness standards into one, the majority also noted that a full analysis
of which standard to apply did not need to be undertaken in every case.
[8]
With
regard to decisions of the RPD, this Court had established a general consensus
that findings of fact were reviewable on
a patently unreasonable standard; questions of mixed fact and law attracted the
reasonableness simpliciter standard; and, pure errors of law were
reviewed on the correctness standard: Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46.
[9]
Dunsmuir did not address the question of the application of
paragraph 18.1(4)(d) of the Federal Courts Act as it did not arise in
that case. That paragraph provides that the Federal Court may provide relief if
findings of fact were made in a perverse or capricious manner, or without
regard to the material before the tribunal. That had previously been equated
with the patently unreasonable standard: Mugesera v. Canada
(Minister of Citizenship and Immigration), 2005 SCC 40, [2005] S.C.J. No.39 at paragraph 38.
[10]
However,
findings of fact made with respect to state protection must be assessed against
the test set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689, [1993] S.C.J. No. 74, i.e., do the facts constitute “clear and
convincing confirmation of a state’s inability to protect” so as to rebut the
presumption.
[11]
In
light of the prior jurisprudence to the effect that this assessment constitutes
a mixed question of fact and law for which the standard of review should be
reasonableness I did not think it necessary to invite further submissions from
the parties on the question: see Chaves v. Canada (Minister of Citizenship
and Immigration) 2005 FC 193, [2005] F.C.J. No. 232. I would have decided
this matter on the reasonableness standard prior to Dunsmuir.
[12]
As
was stated by Chief Justice John Richard of the Federal Court of Appeal in Canada (Attorney
General) v. Grover, 2008 FCA 97, [2008] F.C.J. No. 401 at
paragraph 6, a decision released following Dunsmuir,
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable and
in particular whether the decision falls within a range of possible acceptable
outcomes which are defensible in respect of the facts and the law…
State
Protection
[13]
Ms.
Naumets first alleges that the RPD erred in its assessment of the state
protection offered to battered women in the Ukraine. She asserts
that the reliance of the RPD on the
existence of ‘women societies’, or non-governmental organizations which assist
battered women, was erroneous as it is irrelevant to the question of state
protection. The respondent notes that the RPD also discussed legislative
initiatives undertaken by the Ukrainian government to address spousal abuse.
[14]
State protection is a finding
which lies at the heart of refugee law, for where a person’s own state is
capable and willing to diligently pursue his or her persecutors, that person
cannot be said to need the protection of another state. The protection afforded
by the state need not be perfect to be reasonably considered adequate: Zalzali
v. Canada (Minister of Employment and Immigration), (1991), 126 N.R. 126, [1991] F.C.J. No. 341.
[15]
A
decision on rebuttal of the presumption of state protection was released by the
Federal Court of Appeal between the hearing of this case and delivery of these
reasons. In Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399, the
Court reiterated that the burden of proving the ineffectiveness of state
protection lies with the claimant. The evidentiary standard of ‘clear and
convincing’ was also required, not mere reliability. In the context of that
case, the failure of the claimant to complain to Mexican authorities about
alleged corruption of a police officer was fatal to her claim of a lack of
state protection in the face of ‘substantial, meaningful and often successful
efforts’ by the Mexican government to address corruption (at paragraph 35).
[16]
The
assessment of the availability of state protection is not a simple task. While
the presumption of protection is one which must be rebutted by the claimant
with ‘clear and convincing evidence’, it has also been recognized by this Court
that claims may succeed where the authorities are unable or unwilling to act
against the persecutors. The difficulty of assessing the nature and quantity of
evidence required to rebut the presumption has long been recognized: see Smirnov
v. Canada (Secretary
of State) (T.D.), [1995] 1 F.C. 780, [1994] F.C.J. No. 1922.
[17]
Where
the claimant is a member of a particularly vulnerable population whose
complaints have historically been neglected by the state, such as battered
women in many areas of the world, it is incumbent on the RPD to assess the
state’s willingness and ability to protect a member of that population, not
merely citizens in general: Tomori v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1039, [2006] F.C.J. No. 1299.
[18]
In this case, the RPD directly and appropriately considered the
legislative efforts of the Ukrainian government to stamp out spousal abuse. But
the presence of laws ‘on the books’ is not sufficient for a finding of state
protection. There must be some realistic possibility that the protection will
be afforded to the claimant, as noted by Justice Gibson in Elcock v. Canada
(Minister of Citizenship and Immigration), (1999), 175 F.T.R. 116, [1999] F.C.J. No. 1438 at paragraph 15:
Ability of a state to protect
must be seen to comprehend not only the existence of an effective legislative
and procedural framework but the capacity and the will to effectively implement
that framework.
[19]
I agree with the applicant that
the existence of efforts on the part of civil society cannot be considered as
part of the assessment of state protection. This is for the reason that
measures taken by NGOs are generally undertaken to plug holes in the fabric of
the state. They highlight problems, rather than serving as indicia of
government-based solutions: Garcia v. Canada (Minister of
Citizenship and Immigration), 2007 FC
78, [2007] F.C.J. No. 118 at paragraph 15. The Panel member’s error in emphasizing this
evidence is not fatal, in my view, as the conclusion that state protection for
victims of domestic violence in the Ukraine is adequate was a reasonable finding on all of
the evidence.
[20]
In
my view, the Panel member gave adequate consideration to the evidence detailing
the efforts of the Government of the Ukraine to offer protection to abused spouses. The RPD noted
the statutory attempts to address the problem of battered women in the Ukraine, which
include mandatory registration of perpetrators of domestic violence and reviews
of complaints of spousal abuse by a range of government agencies.
[21]
The
applicant asserts that there was clear and convincing evidence on the record
that the efforts of the Ukrainian authorities in dealing with the issue of
domestic violence were not substantial or effective. While perfection is not
required, she submits, there must be some indication that protection will, in
fact, be provided. While I agree with the legal principle as stated, I must
note that the evidence to which she directed me is a statement of Police Chief
Vasylovych of the city of Berdychiv in the western Ukraine from no later than
February, 2002. Given that most of the legislative initiatives discussed by the
RPD Panel member postdate that evidence, I cannot find his failure to directly
address it to be a fatal error.
[22]
The
applicant also charges that the RPD erred in dismissing the claimant’s evidence that her common law spouse continued
to search for her on the basis that letters from her sister and a friend were
not from uninterested parties: Coitinho v. Canada (Minister of Citizenship
and Immigration), 2004 FC 1037, [2004] F.C.J. No. 1269. I agree that this
was an error. While the RPD is to be shown deference in its weighing of the
evidence in coming to factual and factual-legal determinations, this does not
permit it to simply give little weight to evidence which comes from those who
know the applicant, even her family.
[23]
Especially in a case
such as this, where there is objective documentary evidence of past
persecution, it was unreasonable of the RPD to give little weight to the
letters from the applicant’s friends, in essence to find them false, simply
because they were not uninterested parties. However, this error does not
overcome the finding that the decision of the RPD on the issue of state
protection was reasonable and is thus not fatal to the decision as a whole.
[24]
For
the foregoing reasons I would dismiss the application. No questions of general
importance were proposed and none will be certified.
JUDGMENT
IT IS THE JUDGMENT
OF THIS COURT that this application is dismissed.
No questions are certified.
“Richard
G. Mosley”
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