Docket: IMM-3769-14
Citation:
2015 FC 672
Ottawa, Ontario, May 25, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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MYKOLA TKACHUK
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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 applicant seeks judicial review pursuant to
section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27
[Act], of the decision of the Refugee Protection Division of the Immigration
and Refugee Board [Board], dated March 2014, which found that he was not a
Convention refugee or a person in need of protection pursuant to sections 96
and 97 of the Act.
[2]
For the reasons that follow the application is
allowed.
Background
[3]
The applicant, a citizen of Ukraine, arrived in
Canada on March 27, 2012 and claimed refugee protection, alleging persecution
due to his political activities that opposed the Ukrainian Government’s laws
and policies. The applicant had been a senior police officer in the Ministry of
Internal Affairs. Following the election of Victor Yanukovich as President in
2009, major changes were made in the police administration. The applicant
opposed these changes, quit the police force and, in 2011, applied to become a
member of the rival Batkyvschina Party [BP]. The applicant claims that: he
participated in rallies; he spoke out about police corruption, changes in the
law which were contrary to the constitution and Ukraine’s discontinuance of
integration in the European Union [EU]; and, that he consulted with and advised
victims of police corruption. The applicant claims that, as a result of these
activities, he was targeted.
[4]
The applicant recounts that he was assaulted on
August 22, 2011 and death threats were directed to him and his family warning
him to discontinue his interference. As a result of the assault he was
hospitalized. He reported the incident to the police but no efforts were made
to investigate or to protect him. He also recounts that a car without any
licence plates attempted to run him down and that he repeatedly received
threatening telephone calls. The applicant stated that he moved his family 30
km away from their home for safety.
[5]
The applicant purchased a fraudulent Israeli
passport at a market in Kiev in December 2011 and, following the receipt of the
passport, in March 2012, he travelled by mini-bus from Ukraine to Rome,
abandoned his Ukrainian passport with the driver and flew from Rome to Toronto.
The Decision
[6]
The Board found that, on a balance of
probabilities, it did not believe the applicant’s story, but, if it had, state
protection would be available.
[7]
The Board noted the applicant’s demeanour and
found that he did not testify in a straightforward manner and that his
elaboration of details undermined his ability to tell his story in a clear and
convincing manner. The Board stated that there were contradictions,
inconsistencies and discrepancies between his written and oral testimony which
were not explained to the Board’s satisfaction.
[8]
The Board did not accept the applicant’s
explanation that he gave his Ukrainian passport to the mini-bus driver to avoid
being found with two passports, noting that he could have just as easily thrown
it away himself. The Board also noted that at his Point of Entry [POE]
interview he stated that the passport might be back in Ukraine.
[9]
The Board did not accept that the applicant
would travel through other EU countries on his internal Ukrainian passport but
not seek asylum and did not accept his explanation that he only wanted to make
an asylum claim in Canada and that it was not safe for him to seek asylum in
Europe.
[10]
The Board found that the applicant’s failure to
know why he was previously refused a Canadian Visa was unreasonable. The Board
also noted that, after being refused a Canadian Visa, the applicant purchased a
fraudulent Israeli passport while planning his exit to seek protection only in
Canada. Although the Board acknowledged his explanation that he purchased an
Israeli passport because he could then enter Canada without a visa, the Board
found that his planned exit was not consistent with the subjective fear of one
fleeing imminent harm. The Board noted that he could have fled sooner using his
own passport and could have sought asylum in another EU country.
[11]
The Board, therefore, concluded that the
applicant did not have a well-founded fear of persecution or that he would face
a serious possibility of harm if he returned.
[12]
Alternatively, the Board found that there was,
and would be, state protection. The Board noted that Ukraine was not in a
complete breakdown and the presumption that Ukraine is capable of protecting
its citizens applied.
[13]
The Board referred to the general principles
regarding state protection, including that the burden is on the applicant to
rebut the presumption. The Board also noted that a subjective reluctance to
engage the state and doubting the effectiveness of state protection will not
rebut the presumption where that effectiveness has not been tested.
[14]
The Board was not satisfied with the applicant’s
explanation of his efforts to follow-up on his police report or with his
failure to report the attempt to run him down in October 2011 or the
threatening phone calls.
[15]
The Board concluded that the applicant had
failed to provide clear and convincing evidence that Ukraine would not provide
state protection. The Board noted his reluctance to follow-up with the police
based on the advice of his friend, but found that regardless, he could not
rebut the presumption without testing the adequacy and effectiveness of state
protection.
[16]
The Board added that it “considered and accept[ed] reports that there are some
victims of political crime, corruption and vendettas which the state might have
failed to protect, but the mere fact that the state’s efforts to protect a
claimant are not always successful does not rebut the presumption of state
protection.”
The Issues
[17]
This application for judicial review raises two
broad issues: whether the Board’s credibility findings are reasonable and
whether the Board’s alternative finding that adequate state protection would be
available to the applicant is reasonable.
The Standard of
Review
[18]
The standard of reasonableness applies to both
issues. Therefore, the role of the Court is to determine whether the decision “falls within ‘a range of possible, acceptable outcomes which
are defensible in respect of the facts and law’ (Dunsmuir, at para. 47).
There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome” (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1 SCR
339). Deference is owed to the decision-maker.
[19]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland
Nurses], the Supreme Court of Canada elaborated on the requirements of Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], noting
that reasons are to “be read together with the outcome
and serve the purpose of showing whether the result falls within a range of
possible outcomes” and that courts “may, if they
find it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome” (at paras 14-16).
[20]
It is well-established that boards and tribunals are
ideally placed to assess credibility: Aguebor v Canada
(Minister of Employment and Immigration), [1993] FCJ
No 732 at para 4, 160 NR 315 (FCA) [Aguebor]. The Board’s credibility
findings should be given significant deference: Lin v Canada (Minister of Citizenship and
Immigration), 2008 FC 1052 at
para 13, [2008] FCJ No 1329; Fatih v Canada
(Minister of Citizenship and Immigration), 2012 FC
857 at para 65, 415 FTR 82; Lubana v Canada (Minister of Citizenship
and Immigration), 2003 FCT 116 at para 7, 228 FTR 43.
[21]
Despite the high degree of deference owed to the
Board’s credibility findings, such findings are not immune from review. For
example, the Board should provide clear reasons for its credibility assessment,
should not seize on trivial or minute contradictions and while demeanor,
hesitation and vagueness may lead to credibility findings, it is preferable if
there are more objective facts to support the finding (Rahal v Canada (
Minister of Citizenship and Immigration) 2012 FC 319 at paras 43-45, [2012]
FCJ 369).
The Applicant’s
Position
[22]
The applicant argues that the credibility
findings were primarily based on peripheral issues and were unreasonable.
[23]
First, the Board made an adverse credibility
finding from the applicant’s demeanour, after noting that the applicant did not
appear nervous, tried to testify in a confident manner, and elaborated on his
responses. The applicant submits that the adverse inference is perverse.
[24]
Second, the Board made an unreasonable
implausibility finding regarding the applicant’s evidence that he gave his
Ukrainian passport to the mini-bus driver. The applicant submits that he
explained why he did so – to avoid being found with two passports – and that
his belief that it would be back in Ukraine is not implausible.
[25]
Third, with respect to his failure to seek
protection in another EU country while in transit, the applicant submits that
he provided a reasonable explanation: he would not be safe in the countries he
travelled through, he had family in Canada, his intention was only to seek
refugee protection in Canada and he was only in transit in other countries en
route to Rome for his flight to Canada.
[26]
Fourth, the applicant explained that he did not
know why his Canadian Visitor Visa was refused. This was a truthful answer,
which responded to the Board member’s guidance to not make up answers and to
indicate if he did not know the answer to any question. In addition, it was a
reasonable answer, because the applicant did not understand the English
language to determine the reason for refusal.
[27]
The applicant also submits that the Board’s
state protection findings are contrary to the documentary evidence before the
Board which indicates the level of corruption that prevails in Ukraine.
[28]
The applicant submits that his reasonable belief
that the police and other authorities would not help him was based on the lack
of investigation of his assault and threats, the information provided by his
friend at the police station and the documentary evidence that demonstrates
that there is corruption and no adequate state protection.
[29]
The applicant argues that the Board did
not conduct any proper analysis of state protection: Ukraine cannot be
considered to be a democracy and the Board did not weigh the available evidence
about state protection, but simply concluded it would be provided. The
applicant notes the inconsistent conclusion of the Board, which acknowledged
that some victims of political crimes, corruption and vendettas may not be protected,
but “the mere fact that the state’s efforts to protect
a claimant are not always successful does not rebut the presumption of state
protection.”
The Respondent’s
Position
[30]
With respect to the credibility findings, the
respondent submits that although the Board noted the applicant’s demeanour, it
did not rely on demeanour, but rather on inconsistencies, contradictions and
evasive answers in his testimony.
[31]
The respondent submits that the Board’s findings
must be considered in the context of the applicant’s conduct which led to his
claim in Canada. The respondent notes the chronology beginning with his
resignation from the police force in August 2010, the alleged assault in August
2011, his request and refusal of a Canadian Visitor Visa in the summer of 2011,
his claim that someone attempted to run him down in October 2011, his purchase
of a fraudulent passport in December 2011, his continued political activities
during this time, the receipt of his fraudulent passport on March 8, 2012, and
his departure from Ukraine on March 23, 2012. The respondent submits that this
context is relevant to the Board’s adverse inference of credibility arising
from his delay in leaving Ukraine and not seeking asylum in other EU countries.
He stated that he only wanted to come to Canada and did not want to seek
protection in other EU countries; however, if he was in imminent danger, he
would have fled earlier.
[32]
The Board did not err in suggesting that the
applicant was asylum shopping or in drawing a negative inference from this (Rana
v Canada (Minister of Citizenship and Immigration), 2012 FC 453 at para 28,
219 ACWS (3d) 432 [Rana]; Remedios v Canada (Minister of Citizenship
and Immigration), 2003 FCT 437 at para 23, [2003] FCJ No 617 [Remedios]).
[33]
The Board reasonably found that the applicant’s failure
to claim protection in the countries he had access to without needing a visa
negatively impacted his credibility and that his explanation, that he only
wanted to come to Canada and did not want to seek protection in other EU countries,
is not a reasonable explanation for a person in fear. The Board is also
entitled to draw an adverse inference from the applicant’s failure to seek
protection in the countries he travelled through en route to Canada.
[34]
With respect to the applicant’s route from
Ukraine to Rome and his testimony about his passport, the respondent argues
that it is open to the Board to determine the plausibility of testimony (Aguebor
at para 4). The applicant’s explanation that he did not want to be found with
two passports does not explain why he would give his Ukrainian passport to the
bus driver rather than disposing of it himself. In addition, his answer was
inconsistent with his statement at his POE interview which indicated he gave
the passport to the mini-bus driver and it might be back in Ukraine.
[35]
With respect to state protection, the respondent
submits that although this was an alternative finding, the Board predicated its
assessment of state protection on the adverse credibility findings. For
example, the Board did not accept that the applicant had been assaulted due to
his political activities; therefore, the Board’s acceptance that state
protection may not always be provided for political crimes was not reflective
of the applicant’s circumstances.
The Credibility Findings are not Reasonable
[36]
I have considered the high degree of deference
owed to the Board with respect to credibility, given that the Board observes
the applicant and can probe an applicant’s testimony and the manner in which it
is provided. I have also considered the principles enunciated in Newfoundland
Nurses, which calls upon the Court to consider the record, where necessary,
to determine whether the outcome is reasonable, in accordance with the Dunsmuir
standard.
[37]
In this case, the record, in particular the
transcript of the hearing, reveals testimony by the applicant that was candid,
detailed and not inconsistent with his written narrative. The Board drew
negative inferences from the applicant’s confident delivery and his answers
which sometimes provided more detail than the question required or the Board
expected. Although the applicant’s demeanour was not the only basis for the
adverse credibility findings, it appears to have been a significant factor and
begs the question of how an applicant is expected to provide answers. It
appears that if an applicant is hesitant and vague, inferences may be drawn,
but if they are confident and explicit, inferences may also be drawn. Although
the Court should not second guess the Board’s comments or findings about
demeanour, given that the Board observed the applicant and the Court did not,
in the present case, the Board’s findings do not logically flow from its
observations of the applicant’s demeanour or from his testimony on the record.
In addition, the Board did not appear to take into account that the applicant
was a senior police officer and his confidence may be due to his experience and
his profession.
[38]
The respondent noted the context and the
chronology as important factors to justify the negative credibility inferences
regarding the applicant’s delay in leaving Ukraine, his plan to only come to
Canada and his failure to claim in the EU states he travelled through. That
context could provide a rationale for the Board’s findings, but this is the
respondent’s rationale and the discussion does not describe this as the
rationale of the Board. The Board’s decision singles out a few concerns,
dismisses the applicant’s explanations and makes adverse inferences, without
explaining why the explanations were rejected.
[39]
The applicant’s explanation that he gave his
Ukrainian passport to the mini-bus driver to avoid being found with two
passports, and that he believed that the passport could be back in Ukraine, is
not implausible. I note that the Board did not refer to the inconsistency
noted by the respondent – if it is an inconsistency – that at his POE interview
he said the passport might be back in Ukraine, but at the hearing he said the
driver may have thrown it out. Both outcomes are possible and the applicant
may not know what the mini-bus driver did with his passport; however, he was
consistent in indicating that he gave his passport to the driver.
[40]
While it is true that the applicant did not flee
immediately after the August 2011 assault or the October 2011 car incident, his
testimony was straightforward. He indicated that he was refused a Canadian
Visitor Visa in the summer of 2011. In the fall he arranged to purchase a
fraudulent Israeli passport because he was aware, due to on-line research he
had done, that with an Israeli passport he would not need a visa to enter Canada or other countries. The applicant also explained that his intended destination was Canada because he had a cousin in Canada, as indicated in his PIF, and that he had not approached
other countries for protection because he did not think they could protect him.
He clearly indicated that he was “looking at Europe as a transit on the way to Canada”. Although the Board may have considered the applicant to be asylum shopping, this
is not fatal to a refugee claim.
[41]
The applicant indicated that he spent two and a
half or three days in the mini-bus continually en route to Rome. This can be
distinguished from situations where a claimant lands in a country and spends
time in those countries without making a claim for protection.
[42]
The respondent noted the jurisprudence which has
found that it is not unreasonable for the Board to draw an adverse inference
from the failure to claim in a country while in transit.
[43]
In Remedios, Justice Snider noted at para
23:
In my view, the Board did not err by
concluding that the Applicants were country shopping. The principal Applicant
clearly testified that they had the option of seeking asylum in the United States, but chose not to do so because their chances of success were much greater in Canada. This testimony supports the finding that the Applicants' refugee claims are based
on a desire to immigrate to Canada and not on a well-founded fear of
persecution.
[44]
In Rana, Justice Near (as he then was)
relied on Remedios to find that it was
reasonably open to the Board to make a negative credibility finding based on
the applicants failure to seek protection in the U.S., noting at para 29:
This reasoning is equally applicable to the
Applicants’ circumstances. Their explanation for not claiming in the US as the Board paraphrased it was that “they wanted to come to Canada; they had two friends in Canada” and that they were told that the Canadian government granted asylum to people like
them. They also suggested that two lawyers told them they had no chance
of pursuing a claim in the US. The Board gave these explanations due
consideration before making its negative credibility finding. Its
position was supported by previously failed attempts to acquire visas to enter Canada.
[45]
However, in both cases, the facts were different
from the present cases. In Remedios, the applicants had spent three
months in the United States [U.S.] without seeking protection. In Rana,
the applicants had also spent several months in the U.S. and had made more than
one attempt to seek a visa to enter Canada.
[46]
The applicant noted jurisprudence which has
found that the failure to claim protection in countries while in transit will
not necessarily undermine an applicant’s subjective fear.
[47]
In Nel v Canada (Minister of Citizenship and
Immigration), 2014 FC 842, 244 ACWS (3d) 669 Justice O’Keefe found that it
was unreasonable for the Board to reject the applicants’ explanation for not
seeking protection in the United Kingdom, where they spent one day in transit
en route to Canada, and to conclude that this undermined their subjective fear
(at para 54). Justice O’Keefe noted at para 55:
That was unreasonable. First of all, nothing
in the decision allows me to understand why the Board decided that the
applicants’ explanation is invalid. While the respondent condemns it as forum
shopping and that might be relevant to public policy, it is certainly not
something that is incompatible with a subjective fear of persecution. On the
contrary, it is unsurprising that someone who actually fears persecution would
want to go to a country where their claim has the best chance of success, since
the price of failure is a return to the persecution they fear. At the very
least, it cannot be summarily rejected without explanation and that made this
crucial finding non-transparent.
[48]
Similarly, in Packinathan v Canada (Minister
of Citizenship and Immigration), 2010 FC 834, 191 ACWS (3d) 1250, Justice
Snider noted that while a failure to make a refugee claim in a third country
may raise doubts about a refugee claimant’s subjective fear, the circumstances
must be considered. Justice Snider noted at para 7:
… However, where a claimant had always planned to come to Canada, and
merely was in transit during a stopover in a third country, the Court has held
that such a situation does not undermine the subjective fear of persecution (Ilunga
v. Canada (Minister of Citizenship and Immigration), 2006 FC 569, [2006]
F.C.J. No. 748 (QL)).
[49]
In the present case, the applicant clearly
indicated that his intention was to come to Canada. His route by mini-bus
through other countries to Rome was continuous and cannot be considered as any
type of sojourn in the other countries where, in his view, he could safely seek
protection. Therefore, the Board’s adverse finding arising from his failure to
claim protection while en route to Rome to board his flight to Canada is not
reasonable.
[50]
With respect to the inference drawn from
the applicant’s inability to provide a reason for the refusal of his Canadian
Visitor Visa, the transcript of the hearing indicates that the applicant
indicated that he received a letter from Kiev indicating the Visa was denied,
but he did not know English well and he did not inquire of a translator. The
Board member then stated “OK, so you don’t know why?”
and the applicant replied, “I cannot say exactly, I
don’t know. And I don’t want to mislead you.” The Board member then
responded, “don’t know why is a good answer”,
adding that he had previously told the applicant that if the applicant did not
know the answer to a question to say so. The transcript also reveals that the
Board member did give this advice at the outset of the hearing stating: “If I ask you a question that you do not know the answer to,
don’t try to make something up. You can simply say, I don’t know, and then I
would not push the issue.”
[51]
Based on this guidance from the Board member and
his statement that “I don’t know” is an
acceptable answer, the Board’s negative inference is not reasonable. If the
Board intended to base a negative credibility finding on its dissatisfaction
with the applicant’s explanation, or lack of explanation, the Board should have
probed the issue more fully, despite its previous advice.
[52]
Although the Board’s decision refers to other
contradictions and inconsistencies and the Board states that its reasons do not
recount the entirety of its considerations, but only the determinative
factors, there are no other inconsistencies or contradictions than those noted
above. The applicant provided more detailed explanations for the Board’s
concerns than acknowledged by the Board.
The Board did not
Conduct the Required State Protection Analysis
[53]
The Board stated that its state protection
finding is an alternative finding; i.e., that even if the applicant were found
to be credible, he would have had adequate state protection.
[54]
As noted by the respondent, it appears that the
brief state protection analysis was influenced by the Board’s credibility
findings.
[55]
Given that the applicant’s claim must be
reconsidered by the Board based on the unreasonable credibility findings, the
Board may also be required to reconsider its state protection analysis.
[56]
Although the Board cited the relevant principles with
respect to state protection, including that a functioning democracy is presumed
to be capable of protecting its citizens and that the onus is on the applicants
to rebut that presumption with clear and convincing evidence that satisfies the
trier of fact on a balance of probabilities that state protection is inadequate
or non-existent (Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at para 30, [2008] 4 FCR 636), the Board did not
consider where Ukraine sits on the democracy spectrum.
[57]
As noted by Justice Rennie (as he then was) in Sow
v Canada (Minister of Citizenship and Immigration), 2011 FC 646 at para 10,
[2011] FCJ No 824, the onus on an applicant to rebut the presumption of state
protection varies with the level of democracy:
This principle, however, does not stand in
isolation. It is tempered by the fact that the presumption varies with the
nature of the democracy in a country. Indeed, the burden of proof on the
claimant is proportional to the level of democracy in the state in question, or
the state’s position on the “democracy spectrum”: Kadenko v Canada (Minister
of Citizenship and Immigration) [1996] FCJ No 1376 at para 5; Avila v
Canada (Minister of Citizenship and Immigration), 2006 FC 359 at para 30; Capitaine
v Canada (Citizenship and Immigration) 2008 FC 98 at paras 20-22.
[58]
The applicant’s efforts to seek state protection
and to rebut the presumption will have to be assessed in the context of, and
proportional to, the level of democracy and the adequacy of state protection in
Ukraine. Clearly the applicant must take reasonable steps to engage
authorities in Ukraine; however, those steps need to be assessed in the context
of his circumstances and his claim that he was a politically active former
police officer.
[59]
The documentary evidence provided to the Board
and highlighted in the applicant’s submissions to the Board indicated that
corruption, including by the police and judiciary, is a significant problem in Ukraine and that law enforcement agencies are part of the problem rather than the solution.
The Board did not appear to assess the country condition evidence to first,
determine whether adequate state protection was available for the applicant and
second, determine whether the applicant’s efforts to seek state protection, or
his reluctance to pursue his allegations with higher police or other
authorities, were reasonable.
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