Date:
20130412
Docket:
IMM-6641-12
Citation:
2013 FC 347
Ottawa, Ontario, April 12, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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SVETLANA SMIRNOVA
AND ARTEM BELOUSOV
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Applicants
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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]
This
is an application for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision
of the Refugee Protection Division [the RPD], dated June 11, 2012, where it
determined that the Applicants are not Convention refugees or persons in need
of protection.
I. Facts
[2]
The
Principal Applicant is the mother of the minor Applicant. They are citizens of Russia and Jewish by ethnicity.
[3]
In
Russia, the Principal Applicant endured incidents of physical assault due to
her Jewish ethnicity, one in 1998 when a female neighbour pushed her resulting
in her pinkie finger being broken, and one in October 2008 when she was beaten
by nationalists following an argument with a female co-worker. She also
suffered constant anti-Semitic insults and threats both in her neighbourhood
and at work. She dreaded leaving her home and was in fear all the time.
[4]
The
Principal Applicant’s son suffered similar emotional and verbal abuse. In
October 2003, other children pressured him to climb a tree, and he fell and
broke his arm. As he lay on the ground crying, the other children just laughed
and insulted him.
[5]
She
reported the 1999 assault to the police, but they ignored her complaint because
she was Jewish and they told her to deal with her problems on her own. For the
2005 and 2008 incidents, she did not complain to the police.
[6]
In
2005, the Principal Applicant started receiving anti-Semitic insults from her
new supervisor at work. When she threatened to file a complaint against him, he
responded that he would lay her off. She then started to notice that her
personal belongings were being damaged or vandalized with swastikas and other
anti-Semitic signs.
[7]
One
day during her break at work, the Principal Applicant’s supervisor placed
scissors on her back and threatened to kill her if she did not resign from her
job. He told her that Jews were not welcome there because there was a lack of
available jobs for Russian women. The Principal Applicant resigned from her
employment and eventually found a new job in a different field.
[8]
In
October 2008 the Principal Applicant decided to flee Russia with her son and
they claimed asylum in Canada on December 21, 2008.
II. Decision
under review
[9]
The
RPD found that the incidents of mistreatment suffered by the Applicants may
have constituted discrimination or harassment, but were not serious enough to
be within the context of the ascribed meaning of persecution.
[10]
Moreover,
the RPD noted that the Principal Applicant submitted no evidence at the hearing
to demonstrate that she was a Jew or perceived to be a Jew and merely provided
the RPD with a copy of a document showing that her maternal grandparents were
of Jewish nationality and her birth certificate showing the Russian nationality
of her parents.
[11]
The
RPD also found that the Principal Applicant did not provide sufficient credible
evidence in support of her claim. For a number of reasons, the RPD drew a
negative inference as to the truthfulness of the physical assaults on her.
[12]
First,
the Principal Applicant stated in her personal information form [PIF] that her
female neighbour attacked her in 1999, but the medical certificate she provided
to attest to the assault was from the year 1998, and it was only when this
inconsistency was pointed out during the hearing that she simply stated she
could have made a mistake on the dates as she was under so much stress. The RPD
noted that she had a month to settle down from the time she arrived in Canada on December 21, 2008 and the time she completed her PIF on January 17, 2009.
[13]
Secondly,
the RPD did not believe the Principal Applicant’s testimony that she was not
given a medical certificate for the medical treatment she received in October
2008 after she asked for it, and noted that if it was not available when she
asked for it, there was no valid reason to not get it a few days later.
[14]
Thirdly,
the RPD found that the Principal Applicant failed to provide a reasonable and
justifiable explanation for why she had no document to support her claim about
the alleged physical attack in October 2008. The RPD noted that her mother was
able to provide medical certificates for the 1998 incident and her son’s injury
in 2003. As the RPD determined that the Principal Applicant’s allegations are
not credible, it drew a negative inference from her failure to provide
documentary evidence for the 2008 incident, without any reasonable explanation,
especially given that she considers this event to be the final straw that
pushed her to leave Russia.
[15]
The
RPD also found that the Principal Applicant had not provided clear and
convincing evidence to rebut the presumption of state protection. The RPD
acknowledged that many hate crimes, including those motivated by anti-Semitism,
are prosecuted only as “hooliganism” and that law-enforcement bodies do not
always properly investigate crimes committed against religious organizations,
but found that there were several instances in which the government
successfully prosecuted individuals for anti-Semitic activities. The RPD also
pointed to evidence relating to a revived Jewish population in Russia and its religious and cultural activities.
[16]
The
RPD noted the Principal Applicant’s evidence that she had complained to the
police after the 1999 incident of physical assault but that they told her to
deal with her complaints on her own and that she had not complained to the
police about a 2005 assault because the police had ignored her previous complaints.
However, the RPD found that the evidence did not establish that it would have
been objectively unreasonable for the Principal Applicant to make additional
attempts to obtain state protection, such as finding out where and how to seek
assistance from higher police authorities or other government agencies.
[17]
The
RPD finally found that the Applicants had a viable internal flight alternative
[IFA] if they relocated to any other city in Russia, such as St. Petersburg,
given that it would be highly unlikely that the Principal Applicant would be
identified or perceived to be of Jewish ethnicity if she moved to a city where
nobody knew her and that hardships associated with dislocation and relocation
were not, in themselves, sufficient for an IFA to be considered unreasonable.
It further noted that she is in possession of a birth certificate showing that
she is of Russian nationality and with no indication of her Jewish ethnicity.
III. Issues
[18]
As
suggested by the Applicants in their written submissions, the present application
for judicial review raises the following issues:
1. Did the RPD
err in finding that the treatment the Applicants suffered amounted to
discrimination
but not persecution?
2. Did the RPD
err in its assessment of the Principal Applicant’s credibility?
3. Did the RPD
err in its assessment of state protection?
4.
Did the RPD err in its assessment of whether the Applicants have an internal
flight alternative?
IV. Standard
of review
[19]
All
issues are to be reviewed under the standard of reasonableness. The RPD’s
finding that the discrimination faced by the Applicants did not amount to
persecution is a question of mixed fact and law reviewable on the standard of reasonableness
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 S.C.R. 190 [Dunsmuir]).
The RPD’s credibility finding, state protection determination and IFA analysis
are questions of fact and are therefore reviewable under the standard of reasonableness
(Dunsmuir, above at para 53).
V. Analysis
A. Did the RPD err
in finding that the treatment the Applicants suffered amounted to
discrimination but not
persecution?
(1) Applicants’
submissions
[20]
The
Applicants submit that the Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees, Geneva, January 1992, as well as
Canadian case law, establish that the cumulative effects of persecution may
amount to persecution, yet the RPD failed to consider this possibility. The
Principal Applicant states that the treatment she and other Jews in her
neighbourhood received clearly occurred in a systemic and persistent manner
and, at least cumulatively, amounted to persecution. She argues that the RPD
erred in limiting its analysis to the physical assaults suffered by her and her
son.
(2) Respondent’s
submissions
[21]
The
Respondent notes that the RPD applied the correct test for persecution. The Respondent
claims that the RPD considered the Applicants’ situation as well as documentary
evidence and reasonably determined that the treatment they suffered did not
demonstrate a sustained and systemic denial of their rights. It further noted
that the Principal Applicant was able to work, to seek medical care when needed
and that her son was allowed to go to school.
(3) Analysis
[22]
In
Canada (Attorney General) v Ward, [1993] SCJ 74 at para 63, 20 Imm LR (2d)
85 [Ward], the Supreme Court noted the following regarding the meaning of “persecution”
in the context of the definition of a Convention refugee:
[…] “Persecution”, for example, undefined in the
Convention, has been ascribed the meaning of “sustained or systemic violation
of basic human rights demonstrative of a failure of state protection”; see
Hathaway, supra, at pp. 104-105. […]
[23]
The
case law has recognized that multiple incidents of discrimination can
constitute persecution pursuant to section 96 of the IRPA (Ampong v Canada (Minister of Citizenship and Immigration), 2010 FC 35 at para 42, 87 Imm LR (3d)
279). In respect of the distinction between discrimination and
persecution, the Court of Appeal stated in Sagharichi v Canada (Minister of Employment and Immigration) (1993), 182 NR 398 at para 3, 1993 CarswellNat
316:
It is true that the dividing line between persecution and
discrimination or harassment is difficult to establish, the more so since, in
the refugee law context, it has been found that discrimination may very well be
seen as amounting to persecution. It is true also that the identification of
persecution behind incidents of discrimination or harassment is not purely a
question of fact but a mixed question of law and fact, legal concepts being
involved. It remains, however, that, in all cases, it is for the Board to draw
the conclusion in a particular factual context by proceeding with a careful
analysis of the evidence adduced and a proper balancing of the various elements
contained therein, and the intervention of this Court is not warranted unless
the conclusion reached appears to be capricious and unreasonable.
[24]
In
the case at bar, the RPD did take into account the cumulative nature of the
attacks and ethnic slurs the Applicants received when assessing whether the treatment
they endured amounted to persecution. In its decision, reference is made to the
incident that occurred in 1999, to the Principal Applicant’s different
employments, the 2005 incident involving her supervisor and the incident in
October 2008, when she had an argument with a co-worker and was beaten by RNU
nationalists.
[25]
The
RPD did not make any mistake as it did consider whether the aggregate of all
these incidents gave rise to cumulative persecution, even though the
credibility of the Principal Applicant with regards to some of them is
questionable. It correctly considered the Applicants’ situation in light of the
concepts of discrimination and persecution and determined that the incidents
they suffered constitute discrimination but that the treatment they suffered
does not reach the level of persecution. The conclusion reached by the RPD
falls within the range of acceptable outcomes in fact and law.
B. Did the
RPD err in its assessment of the Principal Applicant’s credibility?
(1) Applicants’
submissions
[26]
The
Principal Applicant submits that it was unreasonable for the RPD to draw a
negative inference from the fact that she stated in her PIF that an incident of
assault occurred in 1999, while her medical document stated it occurred in
1998, as a lengthy period of time had passed since the incident. She also
submits that the RPD erred by justifying this negative inference with the
observation that she had a month to settle down from the time she arrived in Canada until she completed her PIF. She also states that the RPD’s observation that “[o]ddly
enough, she remembered all other details of her claim” is unreasonable, because
the RPD used the fact that there were no other inconsistencies to somehow
justify making a negative credibility inference.
[27]
Similarly,
the Principal Applicant challenges the RPD’s observation that she did not
correct the date in her PIF after she received the medical document in or
before March 2012, notwithstanding the fact that the translator did not include
the date on the English version. The RPD failed to consider that this fact is
an indication of a simple error.
[28]
Moreover,
the Principal Applicant challenges the RPD’s statement that she “did not
provide any explanation as to why no medical certificate was obtained by her
mother for that October 2008 incident,” given that the RPD never asked her if
her mother tried to obtain the medical certificate. The Principal Applicant
submits that the RPD engaged in circular reasoning by taking an unreasonable
credibility finding to attack the Principal Applicant’s lack of documents to
support her claim.
(2) Respondent’s
submissions
[29]
The
Respondent submits that the RPD’s negative credibility finding is reasonable in
light of the inconsistency between the Principal Applicant’s PIF and medical
certificate relating to the date of the 1998 assault, and that this finding is
also determinative of the Applicants’ claim. The Respondent claims that the Applicants’
arguments amount to requests that the Court reweigh the evidence that was
before the RPD and do not address the RPD’s concern that the Principal Applicant
did not correct the inconsistency until it was brought to her attention.
Moreover, the Respondent underlines the fact that the Principal Applicant’s
argument mischaracterizes the RPD’s reasoning as at no point did it assert that
she is entitled to no mistake.
[30]
As
for the RPD’s statement that the Principal Applicant “did not provide any
explanation as to why no medical certificate was obtained by her mother for that
October 2008 incident,” the Respondent submits that given the RPD’s existing
credibility concern, its assessment of the lack of corroborating evidence and her
lack of a justifiable explanation is reasonable. The Respondent noted that the
Applicants bear the onus of seeking corroborative evidence to establish the
material aspects of their claim.
(3) Analysis
[31]
The
RPD identified two reasons for its negative credibility finding: the Principal
Applicant stated in her PIF that an incident of assault occurred in 1999, when
her medical document stated it occurred in 1998, and she did not provide a
medical certificate for the alleged incident in October 2008.
[32]
The
RPD reasonably drew a negative inference from the inconsistency in the Principal
Applicant’s PIF and her medical certificate regarding the date of the incident
with her neighbour. This negative inference is rationally supported by the
evidence before the RPD and is reasonable. However, the importance given to
this inconsistency by the RPD is at the limit of what is acceptable under a
standard of reasonableness.
[33]
The
RPD did state that the Principal Applicant “did not provide any explanation as
to why no medical certificate was obtained by her mother for that October 2008
incident,” although the RPD never specifically asked her if her mother tried to
obtain the medical certificate. However, this determination is not unreasonable
as the RPD questioned her extensively as to why she was not able to obtain a
copy of her medical record in Russia. The Principal Applicant explained that it
had not been possible to retrieve a copy of it but the evidence is to the
effect that her mother provided her with copies of medical records for the
other incidents. Such finding is clearly within the parameters of a standard of
reasonability and affects the overall credibility of the Principal Applicant.
[34]
Therefore,
the RPD’s negative credibility finding on this point is justified in the circumstances.
Moreover, it remains that the Principal Applicant did not provide this
corroborative evidence to support her claim, which is an important one, and
that it is her responsibility to submit all documents that are relevant to her
claim. Indeed, where
there are valid reasons to doubt a claimant's credibility, a failure to provide
corroborating documentation
is a proper consideration for the RPD if it does not accept the Principal
Applicant's explanation for failing to produce that evidence (Singh v
Canada (Minister of Citizenship and Immigration) (2003), 233 FTR 166 at
para 9, 2003 CarswellNat 1391). The RPD’s credibility findings are
reasonable and this Court should not intervene in the circumstances.
C. Did the
RPD err in its assessment of state protection?
(1) Applicants’
submissions
[35]
The
Applicants submit that it was unreasonable for the RPD to find that it would not
have been objectively unreasonable to expect the Principal Applicant to seek
assistance from higher police authorities or other government agencies when the
police ignored her complaints, especially in “a democratic state,” given that Russia cannot be considered to be a democratic nation. The RPD noted the corruption of the
police forces in Russia and the restrictions on political choice and freedom of
expression.
[36]
The
Applicants also submit that the RPD failed to consider numerous documents in
the evidence before it which show that Jews are persecuted in Russia and that state protection is not available. The RPD committed an error as it expressly
recognized that lack of investigation and impunity remain a problem. The RPD
therefore erred by failing to address evidence that directly contradicts its
findings.
(2) Respondent’s
submissions
[37]
The
Respondent submits that the RPD reasonably found that the Applicants had failed
to rebut the presumption of state protection and that this finding is
determinative of the claim. The Respondent states that the RPD is not required
to address every item of evidence before it, and the mere fact that a government
is not always successful at protecting its citizens will not be enough to
justify a claim that victims are unable to avail themselves of such protection.
(3) Analysis
[38]
It
is well-recognized that there is a presumption that a state is capable of protecting
its citizens (Ward, above) and that the more democratic a state’s
institutions are, the more the claimant must have done to exhaust all courses
of action open to him or her (Hinzman v Canada (Minister of Citizenship and
Immigration), 2007 FCA 171 at para 57, 282 DLR (4th) 413). Moreover, local
failures to provide adequate policing do not amount to a lack of state
protection (Flores Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at para 32, 69 Imm LR (3d) 309).
[39]
The
RPD’s determination that the Principal Applicant should have attempted to seek
assistance from higher authorities is reasonable in the circumstances as she
bore the onus of refuting the presumption of state protection. The RPD rightly
determined that the Principal Applicant’s failure to report the incident
involving her supervisor to the police was unreasonable as even though the
previous attempts at seeking protection were unsuccessful, she should have
tried to find assistance from other government agencies. Indeed, the evidence
is to the effect that the government has prosecuted individuals for
anti-Semitic activities and therefore, the evidence is to the effect that the
Russian government is able to protect its citizens. State protection need not rise to the level
of perfection but it however needs to be adequate (Canada (Minister
of Employment and Immigration) v Villafranca, 18 Imm LR (2d) 130, 99 DLR (4th)
334).
[40]
In
its decision, the RPD acknowledged evidence of impunity, but also noted several
instances in the evidence where the government successfully prosecuted
individuals for anti-Semitic activities, statements or publications. Therefore,
this Court does not find that the RPD unreasonably ignored documentation on
whether the state can adequately protect Jews from anti-Semitism in Russia. Clearly, the Applicants would like this Court to reweight the documentary evidence
in their favour. It is not the role of this Court. The picture of the country
as presented by the RPD appears to be balanced and well-documented.
D. Did the RPD err
in its assessment of whether the Applicants have an internal flight alternative?
(1) Applicants’
submissions
[41]
The
Applicants submit that the RPD erred in stating that it would have been easier
to flee to a different part of Russia rather than come to Canada, as the Principal Applicant has no family in Canada. She states that her ex-husband and
biological father of her child, as well as her current husband, are in Canada.
[42]
The
Applicants also submit that given their submission that the RPD failed to
properly consider the country condition evidence with respect to the situation
for Jews in Russia and the availability of state protection, the RPD’s decision
regarding the availability of an IFA must similarly be flawed.
(2) Respondent’s
submissions
[43]
The
Respondent submits that the Applicants failed to provide clear and convincing
evidence that state protection was inadequate in Russia in general and in St. Petersburg in particular. The Respondent further argues that the IFA finding was reasonable
in light of the country condition documents.
(3) Analysis
[44]
An
IFA assessment involves two parts. First, the RPD must be satisfied, on a
balance of probabilities, that there is no serious possibility of the claimant
being persecuted in the part of the country where an IFA is proposed. Second,
it must be reasonable for the claimant to seek refuge there, given his or her
personal circumstances (see Rasaratnam v Canada (Minister of Employment and
Immigration) (1991), 140 NR 138, 31 ACWS (3d) 139 (FCA); Thirunavukkarasu
v Canada (Minister of Employment and Immigration) (1993), 22 Imm LR (2d)
241, 109 DLR (4th) 682 (FCA)).
[45]
The
consideration of whether a claimant has relatives in the country where asylum
is sought is not relevant to the IFA test. The core of the RPD’s assessment of
the availability of an IFA was that it would be “highly unlikely that [the
Principal Applicant] would be identified or perceived to be of Jewish ethnicity
if she were to relocate to other cities where nobody knows her.” The Principal
Applicant has not challenged this finding and the RPD’s assessment of the
availability of an IFA is reasonable. As noted by the RPD at paragraph 7 of the
decision, the Principal Applicant did not adduce evidence to show that she was
perceived to be a Jew because of her behaviour, actions or the perception
individuals may have of her.
[46]
No questions for certification were proposed by the parties and
none will be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is dismissed.
No question is certified.
“Simon Noël”
___________________________
Judge
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