Date:
20130815
Docket:
IMM-343-12
Citation:
2013 FC 874
Montréal, Quebec,
August 15, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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ANNA LARIONOVA
KOSTIANTYN KUZMENKO
SOFIYA LARIONOVA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision that the
applicants were not Convention refugees or persons to be protected.
Background Facts
[2]
Ms.
Larionova, her father Mr. Kostiantyn Kuzmenko, and her six-year-old daughter Sofiya
are Ukrainian citizens. Mr. Kuzmenko also possesses a Romanian passport. He was
the principal applicant before the Immigration and Refugee Board. Ms. Larionova’s
brother, Daniil Kuzmenko, is deceased, leaving a widow and a now three-year-old
son in Ukraine. Mr. Kuzmenko’s wife Nataliya, and Ms. Larionova’s husband Myraslav
also remain in Ukraine.
[3]
Mr.
Kuzmenko is a Chernobyl survivor and a recipient of the Hero of Chernobyl metal.
In 1999, he decided to dedicate his life to working with children. Together
with his family, he founded and ran a home for orphans and street children in Kiev. This started out in a rented building with 40 children, but by 2006 he was able
to build a purpose-designed house for 100 children. The new facility had a
dining-room, computer room, psychologist’s office, playground, and carpentry
and sewing workshop, and provided classes in music, art, and English.
[4]
In
September 2010, representatives of the Office of Family and Youth visited the
facility. They were angered to find that the children were being given
religious education. The authorities began to tell Mr. Kuzmenko to cease reporting
on the centre in the press and to contemplate closing it down. Local
authorities informed him that he would not be funded and also requested that he
close. However, small business owners continued to donate money to keep the
centre running.
[5]
In
autumn 2010, two men came to the centre. They threatened and hit Mr. Kuzmenko
and demanded 50% of the centre’s funding. He was given two weeks to pay $6,250
US. He explained that he had no spare money for this and that all donations
went into the centre. They returned in two weeks and repeated the demand.
Seeing his granddaughter Sofiya, they let him understand that “something could
happen to her.” Mr. Cruz testified that he did not go to the police because he
was scared.
[6]
In
spring 2011, threatening phone calls began. On April 29, 2011, Mr. Kuzmenko
reluctantly closed the centre. In May 2011, the family applied for visas to
travel to Canada but were refused. They were followed around town, and one
evening Ms. Larionova’s car was set on fire.
[7]
Mr.
Kuzmenko indicated in his Personal Information Form (PIF) that the police at
the scene told the family that they had “crossed someone” and the fire
department determined that it had been arson. Mr. Kuzmenko requested police
protection but there was no response.
[8]
Documents
were entered into evidence that indicated that after the fire report, a
statement was taken by the police from Ms. Larionova’s husband on July 12, 2011
in which he indicated that the car was deliberately set on fire.
[9]
A
further document of the police dated July 19, 2011 was entered into evidence that
described a decision refusing to open a criminal case. In the report, Mr.
Larionov is quoted as stating that he did not know why the passenger side of
the car had caught on fire, that he did not have any enemies and did not
observe anybody suspicious. Mr. Kuzmenko testified at the hearing, however, that
he knew why it happened and who did it but did not know how he could possibly
prove it.
[10]
The
police report indicates that an investigation was conducted and no eyewitnesses
to the event were discovered. The investigation included that of “antisocial
individuals” known to be inclined to committing offences and crimes who were
examined under administrative supervision.
[11]
Failing
to establish anyone who could have carried out the act and noting that the car
had cost US$400, it was decided that, although an unidentified individual had
committed a criminal offence, due to its insignificance the act did not pose
social danger and a criminal case would not be opened. This information was
conveyed to Mr. Larionov on July 13, 2011. He testified that he was not
satisfied with the investigation.
[12]
Mr.
Kuzmenko testified that after the car was burned he went to the police and
asked for protection because he was scared for his family and for his life. He related
to the Chief of police how he had been kicked and his fear. The Chief of police
was trying to calm them down and told him that he would send police officers to
watch over his house. Mr. Kuzmenko states however that the Chief of police “was
not burning of desire to protect us”. After the Chief of police indicated that
the car that was burned was not worth too much, he testified that he realized
that he would not get any protection.
[13]
At
the end of August 2011, Ms. Larionova, Mr. Larionov and the child Sofiya decided
to attempt to enter Canada illegally for their safety. They obtained Lithuanian
passports and travelled via Thailand, but were twice intercepted and taken off
flights to Vancouver, first in South Korea and then in Taiwan. They had to
return to Ukraine.
[14]
On
September 8, 2011, Mr. Kuzmenko was telephoned with a threat against his son’s
life, being Daniil Kuzmenko. He was told that his appeal to the police and
statements to the investigators had doomed the family, which apparently had
been made after the fire. Two days later he was called again and told that he
had paid dearly for his stubbornness. Meanwhile, on September 9, his son had
gone missing. Mr. Kuzmenko turned to the police. After eleven days, he learned
that his son’s half-naked body had been discovered dumped on or by the highway 40
kilometres outside Kiev without identification papers, and had been buried with
other unknowns six days ago. When he finally found his son at the morgue
through identifying clothing he had been wearing and informed the police of the
threats which had been received, the police did nothing.
[15]
Mr.
Kuzmenko filed an application for an investigation into the inadequacy of the original
investigation. A document was entered into evidence from the state prosecutor
of Ukraine dated October 6, 2011 to the senior justice counselor in Kyiv referring
to Mr. Kuzmenko’s complaint and directing him to carry out an investigation. It
included the application from Mr. Kuzmenko. The prosecutor was directed to
inform the senior prosecutor about the results of the investigation.
[16]
The
family had Daniil Kuzmenko reburied. They again attempted to obtain visas for Canada and were again refused. Ms. Larionova then bought false German passports for herself
and her daughter and flew to the Dominican Republic and from there to Cuba, then flew into Toronto and took a train to Montreal. Mr. Kuzmenko already had a five-year
visa for the U.S. from a trip to the 2010 annual convention of the Seventh-Day Adventist Church in Atlanta, Georgia. He used his U.S. visa to fly to New York, then took a bus to Buffalo, where he received a Canadian visa and was able to
enter Canada and rejoin his daughter and granddaughter.
[17]
An
undated summons to Mr. Kuzmenko’s wife Nataliya was also entered into the
evidence summoning her to attend before the police on November 30, 2011
concerning the investigation. Ms. Larionova indicated she did not know why
Nataliya was called, “they were asking to find the murderers, but until now
it’s still silence about that”.
[18]
They
indicated that the authorities wanted Nataliya to sign a document ending the
investigation. There is no further information on the investigation. There is
no evidence that the complainants took any steps to inquire about the progress
or results of the investigation.
[19]
Photographs
of the deceased son Daniil were also entered into evidence. He was shown to be
naked from the knees up with his shirt open and signs of severe bruising on his
face and head.
[20]
Mr.
Kuzmenko’s wife and son-in-law subsequently reported that officers with the Service
on Human Trafficking came to their residence (they were living in the former
children’s centre) with a summons for the son-in-law, Myroslav Larionov, who
was taken to an office in Kiev and interrogated about the Lithuanian passports
the family had used before. He was told that if he did not turn in the people
who had sold them, his wife and daughter would be deported back from Canada and jailed in Ukraine, and that he would be jailed if he did not cooperate. His telephone
was searched. After a few hours he was released.
Decision of the
Board
[21]
The
Board noted that the key issue was state protection. It found that the
Ukrainian authorities had genuinely attempted to investigate the arson of Ms. Larionova’s
car and the alleged murder of Mr. Kuzmenko’s son.
[22]
The
Board did not believe Mr. Kuzmenko’s allegation that the state had not acted on
his complaint or his statement that there is “complete silence till today.”
[23]
The
Board, on its own initiative, researched the Criminal Code of Ukraine to
determine the reference to s. 286 (2) in the letter of the State Prosecutor
dated October 6, 2012 referred to above. The Board determined that this section
addresses violation of rules related to vehicle driving safety which included
the imposition of a term of imprisonment of 3 to 8 years in situations causing
death or grievous bodily harm of the victim.
[24]
Based
on this information and the fact that Mr. Kuzmenko’s wife had been summoned to testify
in the investigation, the Board indicated that it had serious doubts about the cause
of the son’s death, suggesting he was likely killed in a road accident. It
noted that the state had acted on their complaint. The Board stated that
“although the claimants are unhappy with the findings of the investigation,
they did not show, on a balance of probabilities, that state protection is
inadequate.
[25]
The
Minister of Public Safety intervened before the Board with respect to Mr.
Kuzmenko’s Romanian citizenship to request that he be excluded from the claim
under Article 1E as he was a citizen of Ukraine and Romania. As the Board had
found that there was adequate state protection, it did not address this
submission.
[26]
The
Board concluded that the applicants were not Convention refugees or persons in
need of protection.
Issues
[27]
The
issue raised by the applicants is whether the decision that the claimants are
not persons in need of protection can be sustained on the basis that there is
adequate state protection in Ukraine considering whether:
a. the Board
erred in concluding, on the sole basis of the police reports, that Mr.
Kuzmenko’s son was not murdered; and
b. without
taking into consideration all of the other evidence that the applicants were
not refugees.
Standard of
review
[28]
These
issues refer to the Board’s assessment of the facts. They are therefore
reviewable on a standard of reasonableness (Dunsmuir v New Brunswick, 2008
SCC 9; Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12).
Analysis
1.
Did the Board err in concluding, on the sole basis of the police reports, that
Mr. Kuzmenko’s son was not murdered?
[29]
As
a starting point, I am not satisfied that the Board based its decision solely
on any finding of how the son was killed. The thrust of the decision, as I read
it, is that the police followed up adequately on matters when requested to do
so.
[30]
The
claimants did not bring the issue of their being targeted to the police’s
attention until after the investigation of the arson of their son-in-law’s vehicle.
That incident was investigated with no suspects found and no help from the
family; the son-in-law stating that he did not know who could have been
responsible or how the incident could have happened. The applicants claim that
a criminal file should have nevertheless been open, but to what end is not
clear given the findings of the pre-investigation, particularly without the
complainants not providing the information on their being targeted that might
have assisted the police.
[31]
The
later complaint to the Chief of police of the extortion attempts, described by Mr.
Kuzmenko resulted in a commitment by the Chief to send police officers to watch
over his house. Mr. Kuzmenko indicated that he was not convinced of the
genuineness of the offer because the Chief mentioned that dollar amount of the
vehicle loss in the fire was not a large amount. The evidence nevertheless,
demonstrates a commitment to provide protection.
[32]
With
respect to the investigation into the death of his son, the Board noted that
the senior prosecutor pursued his complaint about the inadequacy of the
investigation. He assigned it to a prosecutor for follow-up and demanded a
report on the outcome. At the time the complainant left the Ukraine for Canada,
the investigation was under way and his daughter had been subpoenaed or was
about to be, to provide information as part of the investigation. Mr. Kuzmenko suggests
that the summons of his wife was only for the purpose of having the
investigation abandoned, which well may have been a topic raised given that the
complainant, who initiated the investigation, had emigrated from the country.
[33]
What
the results of the investigation were after the family left the Ukraine is a mystery; but the absence of information has to lie at the feet of the
applicants. The only evidence that they provided was that they had heard
nothing about the investigation. As the person making the complaint upon which
the police were acting, there is no explanation why Mr. Kuzmenko did not follow
up, or even that he had advised the police of his departure from the country.
He had counsel in Canada and his wife and son-in-law remained in the Ukraine. He had already made one complaint that was acted upon. There is no explanation as
to why he would not continue to press, or at a minimum, put on the record a request
for the report to the senior bureaucrat so that closure of some sort could have
been achieved on the matter.
[34]
At
a minimum, Mr. Kuzmenko did not even enter into evidence his letter of
complaint to the police. It would have at least indicated in writing his
opinion that the cause of death of his son was related to his being targeted as
part of the extortion scheme. There is no explanation on the record connecting Daniil
to these events as someone working and living in Kiev with no apparent role at
the orphanage. There was no indication of his desire to leave the country with
the rest of the family who had attempted to enter Canada prior to his death. It
is clear from the Board’s comments that it was concerned that documents concerning
the investigation were missing.
[35]
On
the basis of the written documentation, the Board had a sufficient evidentiary
foundation to conclude that an investigation had been carried out without any
apparent help from the family, and that the complainants took no steps to inquire
about the results of the investigation.
[36]
There
is nevertheless some basis for complainants’ submission that the Board erred in
concluding that it had serious doubts about the cause of the son’s death which
it believed was the result of a road accident. It is hard to disagree with the
argument that the son’s condition as shown in the police photographs is in any
way suggestive of a motor vehicle accident. In particular, without some
explanation as to how his pants had been lowered to his ankles, his state of
undress is not easily assimilated under the heading of a motor vehicle
accident.
[37]
Of
even greater concern is the fact that the Board on its own initiative consulted
Ukrainian law to investigate the provisions under which the police investigation
had been carried out and from this determining that it related to criminal
negligence as opposed to some form of murder or manslaughter. The Board not
only did his own research on foreign law, but also failed to provide the
parties with an opportunity to respond to its findings.
[38]
On
the basis that the statutory provision mentioned in the investigation letter
related to criminal negligence in the operation of an automobile, the Board
formed its belief that the claimant’s son was killed in a road accident. There
is no other source of evidence for this conclusion.
[39]
Obviously,
by undertaking its own research and relying on the fruits of that research to
come to conclusion not submitted by any of the parties in relation to an issue
before the Board, it breached the fundamental rules of procedural fairness,
which normally would require that the matter be sent back for reconsideration.
[40]
Although
the issue of the Board undertaking its own inquiry was not a point raised in
the applicants’ memorandum, the Minister acknowledges that it would have
consented to the matter being returned for reconsideration, except for their
submission that the Board’s belief that the accident was the result of a motor
vehicle accident was not pertinent to the conclusion that state protection was adequate.
In other words, it is argued that removing this finding out of the decision
would not impact on the reasonableness from all of the evidence that the state
was acting to deal with issues in a fashion that meets the requirements of
Canadian law to conclude adequate state protection.
[41]
Normally,
I would reject this argument out of hand but for the circumstances that apply
in this case. The difficulty is that the Board did not know the nature or
contents of Mr. Kuzmenko’s complaint and what was the outcome of the
investigation. The matter was proceeding, or had proceeded, we now learn after
the fact under the rubric of a criminal motor vehicle accident. But apart from
that, the Board had was photographs in need of an explanation as to the
characterization of the crime and the complainants’ evidence that the initial
investigation was inadequate, including the burial of the body.
[42]
There
is more than sufficient evidence to conclude that a subsequent police
investigation was carried out into the investigation itself and that the
failure to have the results of the subsequent investigation before the Board
was attributable to the complainants. There is no evidence of the results of
the investigation on the cause of death or what its decision was based on and
what follow up would occur. The complainants could not simply stand by and rely
upon their taking no steps to demonstrate either that the investigation that
they initiated was not carried out, or the results on the cause of Danil’s
death were not supportable in some fashion on the basis of other evidence.
[43]
I
agree the evidence before the Board, apart from any reference to the cause of
death of Daniil appears sufficient to meet the standards of state protection as
they are described by Zinn J., in Morales v Canada (Minister of Citizenship
and Immigration), 2009 FC 216 (CanLII), at paragraph 5 as follows:
[5] Canadian law relating to state protection
has been stated and developed in a decade and a half of Federal Court
jurisprudence interpreting and applying the seminal exposition of the issue in Canada
(Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 S.C.R. 689. In
that decision Justice La Forest stressed the surrogate nature of refugee
protection; it is only the failure of the foreign state to protect that will
engage Canadian responsibility. Absent a situation of total breakdown of state
institutions, the ability of the foreign state to provide protection is
presumed. The surrogacy principle has raised various issues relating to the
intensity of the presumption of state protection and the type of evidence that
can demonstrate a failure thereof. The following principles have been
articulated in this respect:
(i)
The stronger the democratic institutions of the foreign state in question, the
heavier the burden will be on the claimant to rebut the presumption: Kadenko v.
Canada (Solicitor General), (1996), 206 N.R. 272 (F.C.A.).
(ii)
A refugee claimant must make reasonable efforts to seek domestic state
protection, but needn’t exhaust every conceivable recourse: Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193 (CanLII), 2005 FC 193.
(iii)
Evidence sufficient to rebut the presumption must be “clear and convincing”:
Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171
(CanLII), 2007 FCA 171.
(iv)
An absence of perfect or ideal protection in the foreign state will not engage Canada’s surrogate role; “adequacy,” not effectiveness per se, is what matters: Canada (Minister of Citizenship and Immigration) v. Carillo, 2008 FCA 94 (CanLII), 2008 FCA 94.
[44]
Accordingly,
I accept the Minister’s submission that despite the failure in procedural
fairness by the Board going outside the confines of the hearing, assuming no
conclusion was made on the likely cause of death, this would not nullify the
evidence that the Board relied upon to sustain its conclusion that state
protection was adequate.
2. Did the Board err in
concluding, without taking into consideration all of the other evidence of
threats, assaults, and arson including the general documentation, that the
applicants were not refugees?
[45]
The
applicants note that the Board made no adverse credibility findings and thus
did not question the account of threats, assaults, and arson. They argue that
the applicants’ subjective fear was well founded, given these experiences. The
objective evidence of incidents was credible and serious enough to warrant
granting refugee status. The complainants argue that the Board’s failure to
take these other instances of persecution into account along with the evidence
from the general documentation rendered its decision unreasonable.
[46]
The
Board accepted that these events occurred. The evidence however, was that they
were not brought to the police’s attention until after the arson incident was
investigated. Thereafter, the case turns on whether the state protection was
adequate. These incidents are relevant only to the issue whether the state
adequately responded, which the Board concluded was sufficient for the reasons
described.
[47]
An
issue was also taken with respect to the failure of the Board to consider the
general documentation. However the general documentation did not suffice to
demonstrate that state protection was not available, when there was evidence
that the police had investigated the incidents. See Sholla v Canada (Minister
of Citizenship and Immigration), 2007 FC 999, Tejeda v Canada (Minister
of Citizenship and Immigration), 2008 CF 438; Munoz v Canada (Minister
of Citizenship and Immigration, 2009 FC 478. Moreover, there was no
allegation that the police had been corrupted or had been involved in the
threats to the applicants.
Conclusion
[48]
The
Board’s decision was not unreasonable. The decision falls within the range of
possible, acceptable outcomes that are defensible in fact and in law. For these
reasons, the application is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed.
"Peter
Annis"
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