Date:
20080229
Docket: IMM-1818-07
Citation:
2008 FC 268
Ottawa, Ontario,
February 29, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
TRAYANKA
STOYANOVA VELINOVA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Immigration and
Refugee Board, Refugee Protection Division (the “Board”), in which it
determined that the applicant was not a refugee or a person in need of protection
in accordance with sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, ch. 27 (the “Act”). Leave to apply for judicial
review was granted by Justice Luc Martineau on November 13, 2007.
I. The facts
[2]
The
applicant is a citizen of Bulgaria, born on June 15, 1946.
She married in 1969, had one daughter and was divorced from her husband in
1981.
[3]
She
was employed as a technologist for a company in Sofia. In 1984,
she began a common-law relationship with a co-worker, Todor Yotou and resided
in a house that she owned. She stated in her Personal Information Form (PIF)
that the relationship deteriorated after 1984.
[4]
In
May 2002, the applicant obtained a visa to come to Canada as a
“tourist”, and stayed with her daughter in Canada until May
2003. She returned to Bulgaria, because she was
concerned with her employment and her personal relationship with Todor Yotou,
but the situation deteriorated again and, on July 23, 2004, he threatened her
with a knife.
[5]
She
reported the incident to the police, who came and talked to Todor Yotou and
warned him but said that they had better things to do than settling domestic
problems. She stayed at her brother’s residence but Todor Yotou continued to
bother her.
[6]
On
October 5, 2004, the applicant returned to live with her daughter in Canada, and claimed
refugee protection on May 5, 2005.
[7]
She
claimed that this delay to claim refugee protection was due to her daughter’s
marital difficulties in Canada. She testified that she had not made other
efforts to get help in Bulgaria because other women had
complained about domestic abuse to the police but to no avail.
II. The Board’s decision
[8]
The
Board begins its analysis by writing “The Panel has taken the Gender
Guidelines into consideration before rendering a decision in this claim”. Although,
according to the Board, there are some factors which indicate a lack of
subjective fear, including the applicant’s return to Bulgaria after being in
Canada for one year, and her delay in claiming refugee status for several months
when she came back to Canada, it concluded that the applicant “was a victim of
domestic violence over the twenty odd years that she resided with her
common-law spouse”. However, the Board also concluded that the applicant had
not demonstrated that state protection was unavailable:
The panel accepts that domestic violence
has, and still is of serious concern in Bulgaria. The panel further notes that Bulgaria has taken major steps in
trying to alleviate the problem of domestic violence, some of which has been
effective and some of which is still in need of further action. The panel finds
that going to the authorities once over a twenty-year period of the alleged
domestic violence indicates that the claimant has not exhausted her potential
remedies for obtaining protection from the government of Bulgaria.
After citing documentary evidence regarding
Bulgaria’s Protection
Against Domestic Violence Act, domestic violence legislation introduced
in Bulgaria in 2005, the
Board found that the applicant had failed to rebut the presumption of state
protection with clear and convincing evidence. The Board preferred the
documentary evidence to the claimant’s testimony on this question because it,
according to the Board, was free of bias, to the extent that it came from
independent sources that have no vested interest in whether or not claimants
are determined to be Convention refugees. The Board concluded that the
applicant was not a Convention refugee or a person in need of protection.
III. Issues
[9]
This
application raises the following issues:
(A) What is the effect of
the applicant’s failure to comply with subsection 80(2.1) of the Federal
Courts Rules?
(B) Did the Board apply the
wrong standard of proof when it determined that the applicant had not exhausted
all available remedies in Bulgaria?
(C) Did the Board commit a
reviewable error on the issue of state protection in its assessment of the
documentary evidence?
IV. Analysis
(A) What is the
effect of the applicant’s failure to comply with subsection 80(2.1) of the
Federal Courts Rules?
[10]
As
a preliminary matter, the respondent points out that the applicant’s affidavit
does not contain a jurat of translation as required by subsection 80(2.1) of
the Federal Courts Rules, S.O.R./98-106 (the “Rules”), since the
applicant had to have her PIF translated and testified at the hearing before
the Board through an interpreter. According to the respondent, the application
should be dismissed, or the affidavit should at the very least be given no
weight. In reply, the applicant submits that this is a technical error, at
best, and states that the affidavit was in fact translated.
[11]
Subsection
80(2.1) of the Rules provides as follows:
|
Where
an affidavit is written in an official language for a deponent who does not
understand that official language, the affidavit shall
(a)
be translated orally for the deponent in the language of the deponent by a
competent and independent interpreter who has taken an oath, in Form 80B, as
to the performance of his or her duties; and
(b)
contain a jurat in Form 80C.
|
Lorsqu’un
affidavit est rédigé dans une des langues officielles pour un déclarant qui
ne comprend pas cette langue, l’affidavit doit :
a)
être traduit oralement pour le déclarant dans sa langue par un interprète
indépendant et compétant qui a prêté le serment, selon la formule 80B, de
bien exercer ses fonctions;
b)
comporter la formule d’assermentation prévue à la formule 80C.
|
[12]
The
Federal Court dealt with an application in which the applicant’s affidavit did
not contain an affidavit of translation in Liu v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 375, [2003] F.C.J. No. 525 (QL), although
it made no reference to subsection 80(2.1). In that case, Justice Judith Snider
noted that the “usual practice” in such situations is to include an affidavit
of translation, and that “[t]he lack of confirmation of translation might, if
the facts were in dispute in a material way, lead me to conclude that this application
should be dismissed” (at para. 13). However, since the parties essentially
agreed on the facts, Justice Snider decided instead to give the affidavit no
weight, as there was no indication that the applicant knew what was being
signed when she swore the affidavit.
[13]
This
decision was followed in Tkachenko v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1652, [2005] F.C.J. No. 2105 (QL) in
which Justice Yvon Pinard made specific reference to subsection 80(2.1) but
noted that, although the case was highly dependant on the facts, “[t]o dismiss
this case on the grounds that an interpreter’s oath is lacking would be unjust”
(at para. 8). Instead, the weight to be given to the affidavit would be “significantly
affected”.
[14]
In
this case, the issues raised by the applicant can be assessed without reference
to the applicant’s affidavit, since the necessary material can be found in the
Certified Tribunal Record. Furthermore, there is essentially no dispute with
regard to the facts, the question being whether the Board appropriately
addressed the issue of state protection. Therefore, I will not dismiss this
case on the basis of subsection 80(2.1), but, since there is no indication that
the applicant understood what she was signing, without an affirmed statement
that the content of the affidavit had been translated for her, I give no weight
to the applicant’s affidavit.
(B) Did the
Board apply the wrong standard of proof when it determined that the applicant
had not exhausted all available remedies in Bulgaria?
[15]
According
to the applicant, the Board imposed an “impossible standard of proof” when it
stated that the applicant had not exhausted all available remedies in Bulgaria. The respondent, on the
other hand, submits that the words of the Board, taken in context, clearly
indicate that the Board had not expected the applicant to demonstrate that she
had exhausted all available remedies, but considered that the applicant had not
rebutted the presumption of state protection.
[16]
Neither
party has addressed the appropriate standard of review on this issue. However,
the Supreme Court of Canada has mandated that a pragmatic and functional
analysis be carried out for each issue the Court must address on judicial
review (Dr. Q. v. College of Physicians and Surgeons of British Columbia,
[2003] 1 S.C.R. 226, [2003] S.C.J. No. 17 (QL)). In this case, although the
Board has expertise and a large measure of discretion on the general question
of the existence of state protection, there is no privative clause and the
question is a pure question of law. In my opinion, the appropriate standard of
review on this issue is correctness. Therefore, the Court’s intervention is
justified if it can be determined that the Board applied the incorrect
standard.
[17]
If
an applicant can demonstrate a subjective fear of persecution combined with the
state’s inability to protect, he or she will fall within the definition of Convention
refugee. Where the state is not the agent of persecution, “only in situations
in which state protection ‘might reasonably have been forthcoming,’ will the
claimant’s failure to approach the state for protection defeat his claim” (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at para. 49, [1989]
S.C.J. No. 74 (QL)). In other words, the failure of a claimant to exhaust all
available remedies in their home country will not necessarily be determinative.
However, in the absence of a complete breakdown of the state, there will be a
presumption that state protection is available unless there is clear and
convincing evidence to the contrary (Ibid.).
[18]
The applicant takes
issue with the following passage from the Board’s decision:
The
panel finds that going to the authorities once over a twenty-year period of the
alleged domestic violence indicates that the claimant has not exhausted her
potential remedies for obtaining protection from the government of Bulgaria.
Had the Board left its decision there, its focus
on the applicant’s failure to exhaust the remedies available in Bulgaria may have indicated that
it applied the wrong test. However, the Board, earlier in its reasons, noted
that “a claimant must show that it was objectively unreasonable for him or her
not to seek state protection.” After the impugned passage, the Board continues its
analysis to determine that recourses are available to victims of domestic
violence in Bulgaria, particularly since
2005. In my opinion, the applicant has not demonstrated that the Board applied an
incorrect test. The Board assessed, not only what remedies the applicant had
attempted, but also what remedies would be reasonably available to the
applicant. Even if Bulgaria’s Protection Against
Domestic Violence Act is not fully implemented or is under funded, this does
not mean that there is no state protection available.
(C) Did the Board commit
a reviewable error when it determined that state protection was available to
the applicant in Bulgaria?
[19]
The
applicant submits that the Board committed a reviewable error when it
determined that state protection was available to the applicant in Bulgaria, by focusing on one
piece of documentary evidence to the exclusion of others which support the
opposite conclusion. For its part, the respondent submits that, generally
speaking, this Court should not intervene in the Board’s conclusions in the
absence of a patently unreasonable error, which the applicant has not
demonstrated in this case. Furthermore, the respondent notes that the Board
need not mention every piece of evidence before it, and that the Board’s
reasons demonstrate that it had turned its mind to the correct issue and used
terminology consistent with the documentation.
[20]
A
pragmatic and functional analysis has already been conducted by the Federal
Court in relation to the standard of review applicable on the issue of the
availability of state protection, in Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL).
Although the lack of privative clause suggests a lower level of deference, some
deference is called for because of the Board’s expertise in assessing the
availability of state protection and the amount of discretion it is accorded on
this issue. Furthermore, the question is one of applying a legal test to the
facts. Therefore, the appropriate standard of review is reasonableness simpliciter.
This means that the Court’s intervention is not justified unless there is no
line of analysis in the reasons that could reasonably lead the tribunal from
the evidence before it to the conclusion at which it arrived (Law Society of
New
Brunswick
v. Ryan,
[2003] 1 S.C.R. 247 at para. 53, [2003] S.C.J. No. 17 (QL)).
[21]
When
assessing documentary evidence, however, the Board has a large amount of
discretion, and is entitled to give some documents more weight than others. The
failure to mention some documentary evidence is not fatal to the Board’s
decision, as the Board “is assumed to have weighed and considered all the
evidence presented to it unless the contrary is shown” (Florea v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 598 at para. 1 (C.A.) (QL). See also Woolaston v. Canada
(Minister of Manpower and Immigration), [1973] S.C.R. 102, [1972] S.C.J.
No. 79 (QL); Hassan v. Canada (Minister of Citizenship and Immigration) (1992), 147 N.R. 317,
[1992] F.C.J. No. 946 (C.A.) (QL); Pohlot v. Canada (Minister of
Citizenship and Immigration) (2000), 102 A.C.W.S. (3d) 593, [2000] F.C.J. No. 2084
(T.D.) (QL)).
[22]
In
this case, the applicant submits that the Board ignored her evidence regarding
women in similar circumstances, as well as documentary evidence to the effect
that state protection was not available. The applicant also submits that, had the
Board taken into account its own guidelines found in the document “Women
Refugee Claimants Fearing Gender-Related Persecution”, it would have considered
the applicant’s evidence regarding similarly situated individuals as well as
evidence which would explain her reticence to report the violence she was
experiencing to the police.
[23]
However,
the applicant has pointed to no specific evidence of women in similar
circumstances, and from reading the evidence submitted, including the
transcript of the hearing before the Board, I can find no such evidence.
Furthermore, the documentary evidence cited by the applicant essentially
repeats the information which the Board actually cites, noting that there have
been positive developments since the implementation of new domestic violence
legislation, but that only 10 per cent of women completely escape from abusive
situations. The documentary evidence cited by the Board also states that,
although the Executive Director of the Center of Women’s Studies and Policies believes
that government efforts remain insufficient, the European Union’s 2005
Comprehensive Monitoring Report on Bulgaria concluded that it is “generally
meeting the commitments and requirements arising from the accession
negotiations in the areas of equal treatment of women and men, health and
safety at work, social protection as well as employment policy”. In its
decision, the Board specifically recognized that “domestic violence has, and
still is of serious concern in Bulgaria”, but noted that “Bulgaria has taken major steps
in trying to alleviate the problem of domestic violence”. Based on the above
evidence, I do not find that the applicant has demonstrated that the Board’s
determination, that state protection was available to the applicant in Bulgaria, was unreasonable.
[24]
In Jahan
v. Canada (Minister of
Citizenship and Immigration) (2000), 98 A.C.W.S. (3d) 649, [2000] F.C.J. No. 987
(QL), it was decided that one complaint to the police which did not rectify the
situation does not mean that there is no state protection.
[25]
Similarly,
the Federal Court of Appeal in Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th)
532 at page 3, [1996] F.C.J. No. 1376, wrote “The fact that their complaint to
one police station did not bear fruit is not a sufficient basis for concluding
that the state of Israel cannot protect them”.
[26]
While
no democratic state can guarantee perfect state protection, it must engage in
serious efforts to have effective protection at the operational level (Garcia
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 79, [2007] F.C.J. No. 118 at para 15
(QL)).
[27]
I
would add that the applicant also submits that the Board erred by drawing
negative inferences without specifying the effect of those inferences on its
conclusion. Nevertheless, in my opinion, the determinative issue in the Board’s
decision was the existence of state protection. Having determined that the
Board’s decision on this question was not unreasonable, I can see no basis on
which this Court’s intervention would be justified. Therefore, I will dismiss
this application for judicial review. No questions will be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
this application for judicial review is dismissed.
No questions need be certified.
"Orville
Frenette"
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