Docket: IMM-148-16
Citation:
2016 FC 864
Ottawa, Ontario, July 22, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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PAVLO DOVHA
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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, Pavlo Dovha, filed a claim for
protection on his own behalf and on behalf of his daughter, Darya Dovah
[Darya]. Those claims were dismissed by the Refugee Protection Division
[RPD]. The Refugee Appeal Division [RAD] allowed the appeal of the claim of
Darya finding that she was a lesbian who will face persecution in the Ukraine
and thus was a Convention refugee.
[2]
Mr. Dovha’s appeal was dismissed. The RAD at
paragraph 6 of its reasons states its understanding of the basis of his claim
for protection, as follows:
The principal Appellant alleged before the
RPD that he fears returning to Ukraine because he will be forced into military
service due to the civil unrest happening in Ukraine, or he will be imprisoned
for refusing to comply with orders to serve in the military.
[3]
Mr. Dovah takes no issue with the findings based
on his fears of military service; rather, he submits that the RAD failed to
consider the second basis of alleged persecution – him being a family member of
a lesbian. He points out that the RPD did not deal with this basis of his
claim because it found that Darya was not a lesbian. However, once the RAD did
make that finding as regards Darya, he submits it erred in failing to assess
his risk as her father.
[4]
The Minister submits that there was no
obligation on the RAD to consider this ground because it was not raised as a
ground of appeal. The Minister relies on Rule 3(3)(g)(i) of the Refugee
Appeal Division Rules, SOR/2012-257, which provide that an appellant’s
record “must contain … a memorandum of argument that
includes full and detailed submissions regarding the errors that are the
grounds of the appeal.” The Minister also relies on this Court’s
judgment in Dhillon v Canada (Minister of Citizenship and Immigration),
2015 FC 321, which held that the RAD is not required to consider an argument
that was not raised before it and that to do so would be contrary to the
statutory scheme and established jurisprudence.
[5]
Mr. Dovah takes the position that he did not
directly raise the issue of him being at risk because of his daughter’s sexual
orientation, because the RPD did not address it because it found that she was
not a lesbian. He argues that once the RAD found that Darya was lesbian, then
it had to address the issue of his risk as a family member, even though it was
not directly raised by him as a ground of appeal.
[6]
I do not agree. Even though the RPD did not
deal with this purported ground of risk, it is incumbent on an appellant to
raise it on appeal.
[7]
I say “purported”
ground of risk, because I have very carefully read the basis of claim submitted
by Mr. Dovah and I am not persuaded that he ever raised as a ground of his
risk, his relationship with his lesbian daughter. Rather, he raised only his
fears of military conscription or imprisonment if he refused to serve.
[8]
He filed a three-page narrative he attached to
his basis of claim form. In it he says that he and Darya “cannot come back to Ukraine because our lives are in danger
there.” He states that Darya “was persecuted
because of her sexual orientation.” He then details in the following
seven paragraphs his refusal to serve in the military and the possible
consequences. He then writes “the reason why we cannot
come back to Ukraine is a danger that threatens my family life.” This
is the only sentence that even suggests, albeit inferentially, that there is
one danger affecting the family as a whole. Following this he details in the
next 18 paragraphs the incidents to Darya as a result of her being lesbian,
including there being “insulting graffiti on the door”
of his house and the family having to move to a new apartment. He then sets
out more recent events concerning attempts to conscript him, including an
attempt to obtain an exemption. He concludes: “I with
my daughter cannot come back to Ukraine because I am afraid for our safety
there. Ukrainian authorities do not protect my daughter and I can be
imprisoned from 2 to 5 years” [emphasis added].
[9]
In my view, this last sentence in particular
makes it clear that he is not relying on his own claim on any ground other than
that of military conscription.
[10]
In summary, the RAD had no obligation to
consider a ground not raised in the appeal document filed by Mr. Dovah, and the
ground he now alleges it failed to consider was not before the RPD or the RAD
on the materials he filed with his claim.
[11]
The decision is reasonable, and this application
must be dismissed.
[12]
Neither party proposed a question for
certification. There is none on this record.
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