Docket: IMM-2051-15
Citation:
2016 FC 1
Ottawa, Ontario, January 4, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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RAISA PIDHORNA
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MYKOLA PIDGORNYI
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Applicants
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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 applicants, Mykola Pidgornyi and Raisa
Pidhorna, who are husband and wife, from the Ukraine, seek judicial review of
the decision of the Refugee Appeal Division of the Immigration and Refugee
Board [RAD] dated April 8, 2015, which confirmed the decision of the Refugee
Protection Division [RPD], refusing their claims under sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].
[2]
The RAD concurred with the RPD and found that
the applicants had not established a well-founded fear of persecution and also
had a viable Internal Flight Alternative [IFA] in Kiev. The RAD’s finding that
there was a viable IFA in Kiev is reasonable and dispositive of this
application. As a result, the application for judicial review is dismissed for
the reasons explained below.
I.
Background
[3]
Ms. Pidhorna recounted that she had been
subjected to discrimination and harassment in the Ukraine due to her Roma
ethnicity, but noted that her life improved somewhat when she married her
husband. She highlighted two specific incidents: through her sewing business,
she was discriminated against and faced extortion by the police in 1995 through
the “Roma tax”, and she was subject to the targeting of Roma homes by
pro-Russian militia, including the looting of and assault in her home in 2014.
[4]
The applicants described that their
circumstances deteriorated in 2013/2014 due to the conflict in the Ukraine as
they lived near territories controlled by pro-Russian separatists. They
recounted that they sheltered refugees in their home but later moved to stay
with Mr. Pidgornyi’s relatives in Novoukrainka. They came to Canada in August
2014 once their daughter bought them plane tickets and they were medically fit
to travel.
[5]
Ms. Pidhorna acknowledged that she does not
speak Romani, does not practice any Roma customs, does not look Roma and would
not likely be recognised as Roma.
II.
The RPD Decision
[6]
The RPD found that, on a balance of
probabilities, it was not satisfied that Ms. Pidhorna had established that she
was Roma or was perceived to be Roma and that the allegations she made about
persecution were not due to her ethnicity. As a result, there was no nexus to a
Convention ground.
[7]
The RPD noted that the documents she provided
did not establish her Roma ethnicity; she does not speak Romani; the medical
and police documents corroborating her assault did not note her Roma ethnicity;
she did not believe that she could be physically identified as Roma; and, her
husband’s assertion that she could be identified by her darker skin tone would
not necessarily identify her as Roma.
[8]
The RPD accepted that the applicants sheltered
fellow citizens and had their home looted during the civil conflict in the Ukraine.
The RPD found that the risk faced by the applicants is generally faced by other
individuals in the Ukraine and that the applicants were not treated any
differently by these groups than others who were not Roma.
[9]
Alternatively, the RPD found that the
applicants had an IFA in Kiev. The RPD stated that it had provided notice to
the applicants that this IFA would be considered. The RPD considered the
applicants’ testimony stating that they could not live in Kiev, but found that
it had not been established on a balance of probabilities that the applicants
would be targeted in Kiev and found that they would not face a risk to life, a
risk of cruel and unusual punishment, or a danger of torture in Kiev. The RPD
also found that it was reasonable in all the circumstances that the applicants
could relocate to Kiev and that difficulties in relocation raised by the
applicants were those inherent in any relocation.
III.
The RAD Decision
[10]
The RAD stated that, guided by Huruglica v
Canada (Minister of Citizenship and Immigration), 2014 FC 799, [2014] 4 FCR
811 it would conduct its own assessment of the evidence and determine whether
the applicants are Convention refugees or persons in need of protection, while
recognizing and respecting the credibility findings of the RPD where the RPD
has a particular advantage.
[11]
The RAD based its analysis on the premise that
Ms. Pidhorna is Roma, relying on the truthfulness of her statement (Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FC 302, 31 NR
34 (FCA)), but noted that she does not look different than other Ukrainians and
that her evidence before the RPD was that she did not follow Roma customs or
culture or speak the language.
[12]
The RAD found that the applicants’ allegations
regarding the 1995 closure of Ms. Pidhorna’s sewing business were tax-related
issues, not extortion, and that she had not faced any problems until the civil
war began in 2014.
[13]
The RAD found that the applicants’ evidence of
the incidents, taken cumulatively, did not establish that Ms. Pidhorna had been
persecuted in the past due to her Roma ethnicity and that she was unlikely to
face persecution in the future, should she return to the Ukraine.
[14]
The RAD agreed with the RPD regarding the
existence of an IFA in Kiev, noting that the RPD had stated the proper test for
the IFA and had identified a specific city, Kiev, where the applicants had the
freedom to relocate. The RAD noted that Ms. Pidhorna testified that they would
have to register to move to Kiev, but that this was merely a formality.
[15]
Ms. Pidhorna also testified that the applicants
had never considered relocating to Kiev and came to Canada at the behest of
their daughter who bought their plane tickets. Mr. Pidgornyi testified that it
is dangerous to live in Kiev because it is “like
military”. The RAD considered this testimony, but concluded that the IFA
in Kiev was viable.
[16]
The RAD confirmed the decision of the RPD,
finding that the applicants would not face a risk of persecution by reason of
Ms. Pidhorna’s Roma ethnicity and that they would not face a risk to life or a
risk of cruel and unusual treatment or punishment or a danger of torture in the
Ukraine.
IV.
The Issues
[17]
The applicants argue that the RAD erred in
applying an incorrect test for a well-founded fear of persecution. In addition,
the RAD erred in finding that they had not been persecuted in the past, which
is relevant to the assessment of the risk of future persecution.
[18]
The applicants also argue that the RAD erred in
finding that they had a viable IFA in Kiev; the RAD based its assessment on the
incorrect test for a well-founded fear of persecution and it confused and
conflated the evidence in assessing the two parts of the IFA test.
V.
The Standard of Review
[19]
The applicants’ first issue, regarding the
articulation of the test for a well-founded fear of persecution is a question
of law, reviewable on the standard of correctness (Ruszo v Canada (Minister
of Citizenship and Immigration), 2013 FC 1004 at paras 20-22, [2013] FCJ No
1099 (QL) [Ruszo]).
[20]
The determination whether the applicants have
established a well-founded fear of persecution is a question of mixed law and
fact and is reviewed on the standard of reasonableness (Ruszo at paras
21-22). Similarly, the RAD’s determination of the IFA is reviewed on the
standard of reasonableness.
[21]
The reasonableness standard focuses on “the existence of justification, transparency and
intelligibility within the decision-making process” and considers “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
Deference is owed to the decision maker and the Court will not re-weigh the
evidence.
VI.
The RAD Erred in Applying an Incorrect Test toDetermine
Whether the Applicants had a Well-Founded Fear of Persecution (Section 96)
[22]
The applicants note that RAD cited the correct
test only in the concluding paragraph of the decision, finding that they did
not face a serious possibility of persecution, but cited and applied an
incorrect test, requiring a higher threshold in at least three other parts of
the decision.
[23]
The applicants submit that the RAD incorrectly
applied a balance of probabilities test, noting that it stated that the issue
is whether Ms. Pidhorna “was unlikely to face
persecution in the future,” found that she
“would not likely face persecution,” and found that there was no
persuasive evidence that she “would be persecuted”
for her Roma ethnicity if she were to return to the Ukraine.
[24]
In a nutshell, the applicants argue that the RAD
elevated the test beyond that required, which is to demonstrate that they would
face a serious possibility or reasonable chance of persecution.
[25]
The respondent submits that the RAD is presumed
to know the law and the applicable test and that it properly cited the test
later in its decision. The reasons should be read with this presumption and the
record in mind. Moreover, this issue is not determinative, because the IFA
conclusion is independently determinative and a sufficient basis to dismiss the
application.
[26]
I agree that the RAD’s choice of words suggests
that it considered whether the applicants would be persecuted on a balance of
probabilities, which is not the test. The correct approach to assess risk
pursuant to section 96 is to determine whether an applicant would face a
serious possibility of persecution, which falls short of establishing that this
is likely to occur on a balance of probabilities.
[27]
The test was established by the Federal Court
of Appeal in Adjei v Canada (Minister of Employment and Immigration),
[1989] 2 FC 680 at 683, [1989] FCJ No 67 (QL):
What is evidently indicated by phrases such
as “good grounds” or “reasonable chance” is, on the one hand, that there need
not be more than a 50% chance (i.e., a probability), and on the other hand that
there must be more than a minimal possibility. We believe this can also be
expressed as a “reasonable” or even a “serious possibility”, as opposed to a
mere possibility.
[28]
In the present case, when read in the context of
the reasons as a whole and the record before the RAD, I cannot find that the
RAD member had the correct test in mind and applied it to the evidence before
him.
[29]
Although the RAD confirmed the decision of the
RPD, unlike the RPD, it did so after accepting that Ms. Pidhorna is Roma. The
RPD stated it would conduct an independent assessment of the evidence and did
so. It is the RAD’s decision that is the subject of judicial review.
[30]
The RAD’s analysis of the record focuses on
whether, based on the key incidents described above and Ms. Pidhorna’s lack of
Roma features, she would be “unlikely to face persecution
in the future.” The RAD found that there was no persuasive evidence that
“she would be persecuted for her Roma ethnicity”
[emphasis added]. Despite the final paragraph which correctly refers to a
“serious possibility” of persecution, the RAD’s analysis appears to be based on
an elevated standard, which is not the correct test.
[31]
However, the application of the incorrect test
is not determinative, given the IFA finding.
VII.
The RAD Did Not Err in its Assessment of the Evidence
of Past Persecution
[32]
The applicants submit that the RAD ignored
evidence of Ms. Pidhorna’s past persecution as a Roma in her childhood, in 1995
when she was forced to close her sewing business in the market for not paying
the “Roma tax”, and in 2014 when their home was looted and the looters demanded
“Gypsy Gold”. The applicants argue that this past persecution is an indicator
of a serious risk of persecution upon their return to the Ukraine.
[33]
I do not agree that the RAD ignored the
evidence. The RAD relied on the applicants’ own testimony regarding their
experiences. The RAD did not address the applicants’ claim that the looters
sought “Gypsy Gold”, but noted the applicants’ evidence was that the Russian
insurgents looted all the houses in the area. The RAD rejected Ms. Pidhorna’s
claim that she was assaulted because she was Roma, noting that her own evidence
was that she did not look Roma and would have only been identified to the
Russians as such if a neighbour identified her. There was no evidence before
the RAD that this was the case. The RAD found that the tax imposed in 1995 was
a neutral tax and not extortion. The RAD concluded that the incidents recounted
did not constitute persecution and were not based on Ms Pidhorna’s ethnicity.
[34]
The decision is not a model of clarity, given
that the RAD states, “[b]ased on the following, I find
that she was not persecuted in the past”, then goes on to cite Horvath
v Canada (Minister of Citizenship and Immigration), 2014 FC 313, [2014] FCJ
No 330 (QL), yet all the incidents relied on, as noted above, preceded this
reference.
[35]
However, reading the reasons in a holistic
manner, the RAD considered the applicants’ evidence and reasonably concluded
that cumulatively, these incidents did not amount to past persecution.
VIII.
The IFA Finding is Reasonable and Determinative
[36]
The applicants argue that the RAD erred in
finding that an IFA in Kiev was reasonable because the RAD misstated and
misunderstood the test for refugee protection, which tainted its IFA analysis,
and also confused the two pronged test by considering factors relevant to the
second prong in the context of the first prong.
[37]
The applicants submit that their evidence
demonstrated that the situation in Kiev was that of a civil war, that they
faced persecution for previously sheltering refugees and that Ms. Pidhorna had
faced persecution in the past due to her Roma identity.
[38]
The respondent submits that the IFA finding was
based on the application of the correct test and is reasonable; once an IFA was
identified in Kiev, the onus was on the applicants to demonstrate, on a balance
of probabilities, that they would be at risk of being persecuted there and they
did not do so.
[39]
The test for an IFA is well established. There
is a high onus on the applicant to demonstrate that a proposed IFA is
unreasonable (Ranganathan v Canada (Minister of Citizenship and Immigration),
[2001] 2 FC 164, [2000] FCJ No 2118 (FCA)).
[40]
The two part test for an IFA was established in Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, [1993]
FCJ No 1172 (QL) (FCA) [Thirunavukkarasu]. The test is: (1) the Board
must be satisfied, on a balance of probabilities, that there is no serious
possibility of the claimant being persecuted in the proposed IFA; and, (2)
conditions in the proposed IFA must be such that it would not be unreasonable,
upon consideration of all the circumstances, including consideration of a
claimant’s personal circumstances, for the claimant to seek refuge there.
[41]
As noted in Thirunavukkarasu:
[14] An IFA cannot be speculative or
theoretical only; it must be a realistic, attainable option. Essentially, this
means that the alternative place of safety must be realistically accessible to
the claimant. Any barriers to getting there should be reasonably surmountable.
The claimant cannot be required to encounter great physical danger or to
undergo undue hardship in travelling there or in staying there. For example,
claimants should not be required to cross battle lines where fighting is going
on at great risk to their lives in order to reach a place of safety. Similarly,
claimants should not be compelled to hide out in an isolated region of their
country, like a cave in the mountains, or in a desert or a jungle, if those are
the only areas of internal safety available. But neither is it enough for refugee
claimants to say that they do not like the weather in a safe area, or that they
have no friends or relatives there, or that they may not be able to find
suitable work there. If it is objectively reasonable in these latter cases to
live in these places, without fear of persecution, then IFA exists and the
claimant is not a refugee.
[42]
In Argote et al v Canada (Minister of
Citizenship and Immigration), 2009 FC 128 at para 12, [2009] FCJ No 153
(QL), the Court noted that the onus is on an applicant to establish on
objective evidence that the relocation to the IFA is unreasonable:
[…] Whether the relocation to the IFA is
unreasonable is an objective test and the onus is on the applicants to
establish on objective evidence that the relocation to the IFA is unreasonable.
It is not for the Board to prove that it is reasonable, as the applicants
suggest. [...]
[43]
The RAD concurred with the RPD’s finding
regarding the IFA, noting that the RPD had cited the proper test.
[44]
I do not agree with the applicants’ submission that,
although the RAD noted that the RPD cited the proper test, the RAD did not
consider the two parts of that test and the relevant evidence with respect to
each part, but rather muddled it all up.
[45]
Again, the RAD decision could have better
distinguished the two parts of the test, but when read holistically, it is
apparent that the RAD applied the evidence to the appropriate part of the test.
Moreover, the RAD indicated that it concurred with the findings of the RPD,
which were more detailed with respect to each part of the test.
[46]
The RAD found that the applicants would not face
a section 96 risk (as Convention refugees with a serious risk of persecution)
or a section 97 risk (as persons in need of protection) in Kiev, relying on the
evidence of Ms. Pidhorna that she would not be identified or perceived to be
Roma in Kiev. The Board also considered Mr. Pidgornyi’s testimony that it would
be dangerous to live in Kiev because it is “like
military”, but did not find that this would expose them to a serious
risk of persecution.
[47]
The applicants were given notice that an IFA in
Kiev would be considered. They did not meet the onus upon them to satisfy
either the RPD or the RAD that they faced a serious possibility of persecution
in Kiev and that it would be unreasonable, given all the circumstances,
including their personal circumstances, to relocate to Kiev.
[48]
It is trite law that seeking refugee protection
of another country should be the last resort and that internal relocation must
first be considered. In the present case, the RAD noted the applicants’ own
evidence that they did not consider relocating within the Ukraine, but rather
came to Canada where their daughter resides.
[49]
The applicants rely only on Ms. Pidhorna’s
statement that they would have to register in Kiev if they moved there, and Mr.
Pidgornyi’s statement that the situation was “like
military”, along with their allegations of persecution in the past,
which the RAD found were not persecution, to support their position that the
IFA was not reasonable.
[50]
As noted in more detail by the RPD, the
applicants were educated in the Ukraine; have work experience in the Ukraine,
including in Kiev; have lived in the Ukraine for their entire lives; are now
retired; speak Russian and Ukrainian; face no cultural or linguistic barriers;
and, had already been separated from their daughter for many years. While
relocation to Kiev may not be their preference, it was not unreasonable for the
RAD to concur with the RPD to find that they had a viable IFA in Kiev.
[51]
As noted above, the standard for judicial review
is that of reasonableness. The Court can find no error in the RAD’s assessment
of the IFA.
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