Date: 20130729
Docket:
IMM-12714-12
Citation: 2013 FC 826
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, July 29, 2013
PRESENT:
The Honourable Mr. Justice Harrington
|
|
|
BETWEEN:
|
|
ROLANDS GRINBERGS
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
REASONS FOR ORDER AND ORDER
[1]
Mr. Grinbergs is a
Latvian citizen. Today he is 46 years old; his father is of Latvian origin and
his mother, of Russian origin. He alleges having been assaulted on three
occasions by Neo-Nazis for having spoken out publicly in front of individuals
of Russian origin, in Riga, to denounce discrimination and tensions between
members of different ethnic groups in Latvia. The incidents purportedly
occurred on May 9, 2009, March 16, 2010, and May 9, 2010. Mr. Grinbergs claims
to have sought help from the police following each of these incidents, but that
they refused to help him.
[2]
He is seeking
judicial review of a decision by the Refugee Protection Division (RPD) of the Immigration
and Refugee Board of Canada, dated November 8, 2012, in RPD file: MB0-04031, in
which his refugee protection claim was denied on the ground that he was neither
a refugee within the meaning of the United Nations’ Convention relating to
the status of Refugees, nor a person in need of protection.
[3]
The medical documentation
in the Tribunal Record indicates that he was examined on March 16, 2010. The
broad diagnosis in the excerpt from the patient’s medical logbook indicates
that Mr. Grinbergs suffered a head contusion, a nose fracture and facial
bruising following an assault.
[4]
He was also hospitalized
from May 9 to May 12, 2010. The excerpt from the patient’s medical logbook
indicates that Mr. Grinbergs was diagnosed as having a head contusion, fractured
6th and 7th right ribs, as well as bruising to his face and body. The patient
had been transported by ambulance after having been beaten up in Riga - this information
was provided to police.
[5]
Mr. Grinbergs also
received threats by telephone and text message about once a month.
[6]
Fearing for his life
and wishing to flee persecution from nationalists and skinhead Neo-Nazis, Mr.
Grinbergs left Latvia for Canada on June 15, 2010. He claimed refugee
protection upon his arrival.
THE PANEL’S DECISION
[7]
The RPD concluded
that the applicant was neither a Convention refugee, nor a person in need of
protection. The determinative issue was the credibility of the applicant’s allegations.
[8]
The panel noted a
number of discrepancies in the applicant’s testimony. It found that the
applicant had not demonstrated that the elements of his claim were credible on
a balance of probabilities, and that he had therefore failed to discharge his
burden of establishing that a return to Latvia would expose him to a serious
possibility of persecution or that he was likely to face a risk to his life, a
danger of torture, or a risk of cruel and unusual treatment or punishment.
[9]
Among other things,
the panel noted that the documentary evidence before it did not describe any
instances of repeated physical assaults of persons who, like the applicant, could
be perceived as being members of the Russian minority in Latvia. It did not
give credence to the explanations offered by the applicant in this regard,
namely, that assaults such as those he had suffered were simply not reported. In
addition, the panel pointed out the democratic character of Latvia and the existence
of human rights organizations.
[10]
The panel also
rejected that applicant’s explanations as to the refusal of the police to register
his complaint and their alleged threats of imprisoning him if he insisted on
filing his complaint. According to the applicant, such behaviour is due to the
fact that the police do not want to deal with arresting Neo-Nazis or
nationalists in Latvia. The panel assigned greater probative value to the
documentary evidence. The information contained therein contradicts the
applicant’s position that the picture painted of the situation in Latvia in
these documents does not reflect reality. According to the panel, the fact that
the applicant had no documents in support of his dealings with the police and
that he had not challenged their refusal to investigate undermined his
credibility.
[11]
Lastly, the panel
concluded that the annual parade held by Latvian members of the Waffen SS legion
in Riga does not show that the Latvian government encourages discrimination
against minorities. The panel found that the parade had in fact been banned by
Riga’s municipal government in 2010. However, that decision was later overturned
by a court on the basis of freedom of assembly.
ISSUES
[12]
The applicant argues
that the RPD erred in law by failing to explain why it assigned greater
probative value to the documentary evidence. He is essentially asking the Court
to establish (1) whether the panel based its decision on irrelevant and
non-determinative factors, and (2) whether the panel’s decision was adequately
reasoned, including whether the reasons for the decision allow for an
understanding as to why it preferred the documentary evidence over the
applicant’s testimonial evidence.
[13]
The respondent, for
its part, argues that the applicant has not raised any serious grounds that
would permit the Court to allow the application for judicial review.
ANALYSIS
[14]
In light of paragraph
47 of the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the issue before this Court is whether the
decision is unreasonable:
Reasonableness
is a deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within
the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
[15]
There are circumstances
under which the Court may prefer the description of the situation in a country
to that of the appellant’s testimony, even if the appellant’s testimony is
presumed to be true (Maldonado v Canada (Minister of Employment and Immigration),
[1980] 2 FC 302, [1979] FCJ No 248 (QL)). In Zhou v Canada (Minister of Employment
and Immigration), 49 ACWS (3d) 558, [1994] FCJ No 1087 (QL), Justice
Linden, writing on behalf of the Federal Court of Appeal, noted that:
We are not persuaded that the Refugee Division made any
error that would warrant our interference. The material relied on by the Board
was properly adduced as evidence. The Board is entitled to rely on documentary
evidence in preference to that of the claimant. There is no general obligation
on the Board to point out specifically any and all items of documentary
evidence on which it might rely. The other matters raised are also without
merit. The appeal will be dismissed.
[16]
The RPD concluded
that, since Mr. Grinbergs’ narrative was inconsistent with country conditions,
it should not be accepted. However, this decision failed to address the cause
of his injuries, which had been independently documented. It is clear that Mr.
Grinbergs had been severely beaten on two different occasions. In light of
these observations, it is incumbent on the RPD to provide a better explanation
as to why it did not believe him. As Madam Justice Tremblay-Lamer wrote in Agranovsky
v Canada (Minister of Citizenship and Immigration), 68 ACWS (3d) 713, [1996]
FCJ No 923 (QL), at paragraph 12:
Similarly, the law is clear that the Board must presume the
truth of the applicant's testimony. When it chose to believe the documentary
evidence instead of the oral testimony of the applicant, the Board was
duty-bound to provide reasons for doing so. This principle is clear in
Okyere-Akosah v. M.E.I. in which the Federal Court of Appeal held, at p. 389:
Since there is a presumption as to the truth of the
appellant's testimony ..., the Board was bound to state in clear and
unmistakable terms why it preferred the documentary evidence over the
appellant's testimonial evidence.
Cullen J. restated
this principle in Sidhu v. M.E.I.:
...where a refugee Board rejects a claim on the
ground that the claimant is not credible, it must state the ground clearly, and
it must give reasons for the credibility finding and why it prefers the
documentary evidence over the claimant's viva voce evidence.
[Footnotes omitted.]
[17]
This passage may be
considered too general, but it is certainly germane to this case when the
medical reports are taken into consideration.
[18]
One of the grounds of
review under section 18.1(4) of the Federal Courts Act is based on the fact
that a decision was rendered without regard for the evidence that was before
the panel. There may very well be other explanations for the injuries to Mr.
Grinbergs, but it was unreasonable to have disregarded those injuries, given
the circumstances of this case.
ORDER
FOR THESE REASONS;
THE COURT ORDERS that:
1.
The
application for judicial review is allowed.
2.
The
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board of Canada, RPD file: MB0-04031, is set aside.
3.
The
matter is referred back to the RPD for redetermination before a differently constituted
panel.
4.
There
is no question of general importance for certification in this case.
“Sean Harrington”
Certified true translation
Sebastian Desbarats, Translator
Email this Content