Docket: IMM-4111-13
Citation:
2014 FC 1197
Ottawa, Ontario, December 12, 2014
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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RUSLAN ISANGULOV
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The Refugee Protection Division of the
Immigration and Refugee Board (the Board) rejected Mr. Isangulov’s request for
protection under sections 96 and 97(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA). He now applies for judicial
review of that decision pursuant to subsection 72(1) of the IRPA. He
also seeks costs.
I.
Background
[2]
The applicant is a citizen of Russia who came to
Canada on March 15, 2013. He immediately sought refugee protection, claiming
that a neo-fascist group called Russian National Unity (RNU) had been
persecuting him because he is a member of the Tatar ethnic minority and his
father is a human rights activist. Most particularly, he alleged before the Board
that:
a.
Neo-fascists have twice tried to kill his father
for his human rights work, and they have targeted his family. On August 12,
2011, men connected to a well-known neo-fascist leader tried to drug and abduct
the applicant in order to put pressure on his father.
b.
On December 10, 2011, neo-fascists staked
out his apartment. The applicant later witnessed two of those neo-fascists
flee from the scene of a stabbing. While assisting the victim, he was struck
from behind and required surgery for life-threatening wounds. His cousin, whom
he lived with, was also assaulted for trying to help the victim. The
investigating police officer persuaded the applicant to recant and called his
assailants “patriots of the Russian Federation”.
c.
On December 18, 2012, neo-fascists murdered his
cousin, mistakenly believing that they were killing the applicant. The police
did not seriously investigate.
II.
Decision under Review
[3]
By reasons dated May 30, 2013, the Board
rejected the applicant’s claim.
[4]
The Board doubted that the applicant had the
required subjective fear: The applicant vacationed in Europe for 9 days in
September, 2012, but did not ask for refugee protection; and even after
allegedly experiencing an attempted abduction and assault by men who knew where
he lived, he stayed at the same address until December, 2012. Further, the applicant’s
oral account of the assault in December, 2011 differed from that in his
narrative, and the Board did not accept his excuse that he was nervous. The Board
therefore decided that the applicant was not credible.
[5]
The Board also considered the documentary
evidence insufficient to independently establish the applicant’s claims. The applicant
had filed a copy of a police report to prove that the police took no action in
respect of his complaint, but the Board decided that it actually proved the
opposite: it said that the complaint merited investigation. In any event, it
was of limited value since it did not identify the complaint to which it
referred. The applicant also submitted a copy of the complaint, but the Board
did not consider it legitimate. In the complaint the applicant only gave a
physical description of his assailants, whereas he said he knew two of them by
name in his basis of claim narrative. The Board did not think it likely that
the applicant would omit that information in his complaint and so gave the
document little weight. An eviction order dated several months later was
connected to the complaint only by the applicant’s testimony. Since the applicant
was not credible, it was irrelevant.
[6]
The Board also gave little weight to medical
documents indicating that the applicant suffered a “massive
tram [sic] to the head”, since they did not identify the cause of
the injury. For the same reason, the Board did not consider the death
certificate of the applicant’s cousin to be significant.
[7]
The Board allowed the applicant to submit
documents after the hearing about his father and the RNU. The applicant took
that opportunity, but the Board rejected some of the documents for being
improperly translated or outside the scope of the authorized late production. The
Board did accept, however, that the applicant’s father was an ombudsman in 2013
and that the RNU existed. This did not prove that the events described by the applicant
actually happened though, so the Board rejected this aspect of his claim.
[8]
Consequently, all that remained was the claim
based on the applicant’s Tatar ethnicity. The Board found that nothing in the
National Documentation Package suggested that Tatar people were at risk of
persecution, and according to the 2004 Response to Information Request about
the RNU, that organization actually “promotes the
position of Russians, Tatars and Kazakhs while being hostile towards immigrants
and people from the Caucasus”. Further, racist violence was declining
in Russia. Although it still resulted in 19 murders and 177 people beaten or
wounded in 2012, these statistics reflected violence directed to every minority
group in a population of over 142 million. The RPD was therefore not convinced
that there was more than a mere possibility that the applicant would be
persecuted for his ethnicity in the future.
[9]
The Board therefore rejected the applicant’s
claim as a Convention refugee under section 96 of the IRPA. As the
burden to prove risk under section 97(1) would be heavier, the Board rejected
that claim without further analysis.
III.
Issues
[10]
The applicant identified three issues in his
memorandum of fact and law:
a.
The Board Member erred in law in the
interpretation and application of the definition of a Convention Refugee;
b.
The Board Member erred in law in that he
ignored, misconstrued, and/or misapplied the evidence; and
c.
The Board Member erred in law when he based his
decision on erroneous findings of fact which he made in a perverse or
capricious manner, or which he made without regard to the totality of the
evidence before him.
IV.
Analysis
A.
What is the Standard of Review?
[11]
The applicant primarily challenges the Board’s
findings of fact and treatment of the evidence, for which the standard of
review is reasonableness (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 46, [2009] 1 S.C.R. 339; Dunsmuir v New Brunswick, 2008
SCC 9 at para 53, [2008] 1 S.C.R. 190). It is also the standard of review of the Board’s
understanding of the grounds of the claim, as that is a question of mixed fact
and law (Dunsmuir at para 53).
[12]
Therefore, the Board’s decision should not be
disturbed if “the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16, [2011] 3 S.C.R. 708).
B.
Were the RPD’s Factual Findings Unreasonable?
[13]
The applicant challenges the Board’s credibility
findings. With respect to these, Justice Mary Gleason observed that “the role of this Court is a very limited one because the
tribunal had the advantage of hearing the witnesses testify, observed their
demeanour and is alive to all the factual nuances and contradictions in the
evidence” (Rahal v Canada (Citizenship and Immigration), 2012 FC
319, at para 42). Still, they are not immune from review, and intervention may
be justified where the Board misapprehends the evidence (Madelat v Canada
(Minister of Employment and Immigration) [1991] FCJ No 49 at para 1 (CA); Owusu-Ansah
v Canada (Minister of Employment and Immigration) [1989] FCJ No 442 at paras
11-12 (CA)).
[14]
There are, in this case, errors in respect of a
critical piece of evidence which, in my view renders the decision
unreasonable. The Board found the applicant not credible because he did not
report the cause of his injuries upon admission to the hospital. The medical
report, in fact, explains the cause of the injury. The report notes that the
applicant was admitted to hospital“… after suffering
bodily injuries and brain haematoma as a consequence of being hit by a hard
object to the right part of the base of the skull during a fight”. The
medical report was considered with the applicant’s testimony.
[15]
As in this case the assessment of credibility is
often based on multiple findings. In the usual course, an unreasonable finding
in respect of one element of the evidence would not render a decision
unreasonable. The Board rejected the claim on the basis that “these events did not occur”. Here, given the
importance of the event in the applicant’s narrative, and the repercussions of
the finding that this event did not occur on the Board’s assessment of the
balance of his evidence, the decision cannot be sustained.
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