Docket: IMM-8165-14
Citation:
2015 FC 1297
Toronto, Ontario, November 20, 2015
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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ROMAN KOSUMOV
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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
I.
Introduction
[1]
The Applicant seeks judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], of a decision rendered by the Refugee Protection Division [RPD] of
the Immigration and Refugee Board, wherein the RPD rejected the Applicant’s
claim for refugee protection under sections 96 and 97 of the IRPA.
II.
Background
[2]
The Applicant, Roman Kosumov (age 28), is a
citizen of Russia of Chechen ethnicity. The Applicant alleges that he was
beaten numerous times in Russia by local skinheads from 2009 until he left
Russia on December 15, 2010, because he is of Chechen ethnicity. The first
beating occurred in January 2009; the police was called but never showed up. In
April 2009, the Applicant was again beaten; he sought medical attention and
reported the incident to the police. In September 2009, the Applicant was
beaten and made a report at the police station. For a fourth time, in February
2010, the Applicant was attacked by local skinheads; a doctor treated him after
the beating and police was notified of the incident but never showed up. In
August 2010, the Applicant was involved in an altercation with nationalists. The
Applicant alleges that when the police intervened at the altercation, they
detained him and took him to the police station because they recognized that he
is Chechen; and, on his way to the police station, the police verbally and
physically abused him; and, demanded that he pay a bribe or else he would be
locked in a cell. On December 15, 2010, the Applicant left Russia and
arrived in Toronto on the same day and made a refugee claim in, or about, July
2011.
[3]
In a decision dated October 30, 2014, the
RPD rejected the Applicant’s claim for refugee status pursuant to sections 96
and 97 of the IRPA. The RPD held that the Applicant lacked credibility as the
RPD found that on the balance of the probabilities the Applicant concocted an
elaborate story of personal persecution and persecution of his family by the
Russian authorities and nationalists to bolster his claim for refugee status.
Furthermore, the RPD found that the Applicant failed to rebut the presumption
of state protection in Russia.
III.
Issue
[4]
The central issue to be determined by this
application for judicial review is:
Did
the RPD err in its finding that the Applicant lacked credibility?
IV.
Legislation
[5]
The following are the relevant legislative
provisions of the IRPA:
Convention
refugee
|
Définition de
« réfugié »
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96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and is unable
or, by reason of that fear, unwilling to avail themself of the protection of
each of those countries; or
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a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the country of
their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
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b) soit, si elle n’a pas de nationalité et
se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need
of protection
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Personne à
protéger
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97. (1) A person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not have
a country of nationality, their country of former habitual residence, would
subject them personally
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97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a
risk to their life or to a risk of cruel and unusual treatment or punishment
if
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b) soit à une menace à sa vie ou au risque
de traitements ou peines cruels et inusités dans le cas suivant :
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(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
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(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
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(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
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(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
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(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
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(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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(2) A person in
Canada who is a member of a class of persons prescribed by the regulations as
being in need of protection is also a person in need of protection.
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(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait
partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
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V.
Position of the Parties
[6]
The Applicant submits that the RPD’s credibility
findings are perverse and unreasonable and that a significant number of
decisions of this RPD member have been overturned by this Court in the past.
Moreover, some conclusions of the RPD are entirely gratuitous and unsupported
by the evidence. The RPD erred by dismissing the Applicant family members’
testimony and affidavit simply because they originate from a member of the
family of the Applicant (Teganya v Canada (Minister of Citizenship and
Immigration), 2012 FC 42 at paras 22-23; Ndjizera v Canada (Minister of
Citizenship and Immigration), 2013 FC 601 at paras 31-33). The RPD
committed an overriding error by omitting the long held principle that sworn
testimony of a refugee claimant is presumed to be true, unless there is a good
reason to doubt it (Maldonado v Canada (Minister of Employment and
Immigration), [1980] 2 FC 302). Furthermore, the Applicant submits that the
RPD made several findings that are without regard to, or in contradiction with,
the testimony, evidence and documentary evidence. As well, the Applicant
submits that the RPD made erroneous plausibility findings; and, did so without
regard to the principle that plausibility findings shall only be made in the
clearest cases (Divsalar v Canada (Minister of Citizenship and Immigration),
2002 FCT 653). Finally, the Applicant submits that the RPD’s finding that the
Applicant did not rebut the presumption of state protection is interrelated and
entirely dependent on the credibility finding of the RPD and, as a result of
the unreasonable nature of the credibility findings, the RPD’s state protection
finding cannot stand.
[7]
Conversely, the Respondent submits that this
Court owes the highest degree of deference to the findings of credibility of
the RPD unless the credibility findings are made capriciously or without
supporting evidence or if the RPD fails to provide sufficient reasons in clear
terms as to how it reached its conclusions (Odetoyinbo v Canada (Minister of
Citizenship and Immigration), 2009 FC 501 [Odetoyinbo]). As a
result, the Respondent, in this case, submits that the overall decision of the
RPD was reasonable; and, even if the RPD made an error in its credibility
findings, it is reviewable only if the findings are so wrong that they taint
all other findings of credibility or would vitiate the RPD’s decision as a
whole (Agbon v Canada (Minister of Citizenship and Immigration), 2005 FC
1573). With regard to the issue of state protection, the Respondent submits
that the RPD reasonably concluded that the Applicant did not rebut the
presumption of state protection with clear and convincing evidence. As a result
of the foregoing, the decision of the RPD is reasonable.
VI.
Standard of Review
[8]
The RPD’s determination of credibility and
weighing of evidence are to be reviewed under the standard of review of
reasonableness (Iqbal v Canada (Minister of Citizenship and Immigration),
2014 FC 415 at para 15). This Court owes the highest degree of deference to
credibility findings of the RPD unless such findings are capricious or without
supporting evidence or if the RPD does not provide sufficient reasons as to how
it arrived at its conclusions (Elhassan v Canada (Minister of Citizenship
and Immigration), 2013 FC 1247 at para 25; Odetoyinbo, above at para
3).
VII.
Analysis
[9]
After having reviewed the entirety of the record
and having heard the parties, this Court is satisfied that the RPD’s decision
was reasonable.
[10]
The RPD found significant discrepancies in the
Applicant’s narrative which affect the Applicant’s credibility in addition to a
lack of any significant corroboration. Specifically, the Applicant’s brother
was unaware of the Applicant’s problems due to his ethnicity; a speculative
understanding of the demise of his father; the lack of corroborative evidence
regarding the September 2009 incident; the lack of mention of reasons for the
attacks against the Applicant in the medical reports; the lack of medical
records for the alleged assaults in Moscow; the Applicant’s delay in leaving
Russia; and, the Applicant’s delay, once in Canada, in making a refugee claim.
[11]
Mindful that the RPD did commit reviewable
errors in certain of its factual findings, nevertheless, there are so many
credibility issues which are significant on their face, that even a small
number of these important credibility discrepancies would have been enough to
seriously compromise the narrative of the Applicant and to discredit his
allegations. This Court has held that even if the RPD commits a reviewable
error in certain of its factual findings, it is not sufficient, in and of
itself, if there were other significant facts, related to the core of the
claim, on which the RPD could reasonably base its ultimate decision (Stelco
Inc. v British Steel Canada Inc., [2000] 3 FC 282, [2000] FCJ No 286; Lin
v Canada (Minister of Citizenship and Immigration), 2011 FC 1235 at paras
59-60). Such is the case here.
[12]
To summarise, the RPD has highlighted the major core
credibility findings that, in and of themselves, clearly demonstrate the lack
of credibility of the Applicant.
VIII.
Conclusion
[13]
For all the above reasons, the application for
judicial review is dismissed.