Docket: IMM-2645-15
Citation:
2016 FC 123
Ottawa, Ontario, February 3, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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YURIY
SHMIHELSKYY
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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
UPON application for judicial review of
a decision of the Refugee Protection Division (“RPD”) of the Immigration and
Refugee Board of Canada dated May 7, 2015, in which the RPD determined that the
Applicant is not a Convention refugee nor a person in need of protection
pursuant to s 96 and s 97, respectively, of the Immigration and Refugee
Protection Act, SC 2001, c 27 (“IRPA”);
AND UPON reviewing the materials filed
and hearing the submissions of counsel for the parties;
AND UPON determining that this
application is granted for the following reasons:
[1]
The Applicant is a citizen of Ukraine. In 1999
he left Ukraine and went to the United States (“US”) where he remained until he
was deported in 2007. He claims that upon his return to Ukraine he noticed
increased nationalist sentiment and anti-Semitism and that, because of his Jewish
ethnicity, between 2008 and 2011 his home and car were vandalized and he was
attacked by nationalists on three occasions. He fled to Canada on January 29,
2012 and claimed refugee status on February 24, 2012. He alleges that he
cannot return to Ukraine because the authorities there cannot protect him from
nationalists.
[2]
The RPD rejected the Applicant’s claim for
refugee status. It based its decision on the credibility of the Applicant’s
account of persecution and his subjective fear in Ukraine and on state
protection.
[3]
In my view, the determinative issue in this
matter is whether the RPD’s credibility findings were reasonable. The parties
submit, and I agree, that the standard of review for determinations of fact and
credibility is reasonableness (Zhou v Canada (Citizenship and Immigration),
2013 FC 619 at para 26; Rodriguez Ramirez v Canada (Citizenship and
Immigration), 2013 FC 261 at para 32; Wu v Canada (Citizenship and
Immigration), 2009 FC 929 at paras 17-18; Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (Fed CA)).
[4]
As I have previously stated, in Ismaili v
Canada (Citizenship and Immigration), 2014 FC 84 at para 41 [Ismaili],
there is no doubt that the RPD’s credibility analysis is central to its role as
a trier of fact. As such, those findings are to be given significant deference
by the reviewing court and should stand unless the RPD’s reasoning was flawed
and the resulting decision falls outside the range of possible, acceptable
outcomes which are defensible in respect of the facts and the law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47; McLean v British Columbia
(Securities Commission), 2013 SCC 67 at paras 19-33 [McLean]). The
reviewing court should not re-weigh the evidence or substitute its own analysis
(Avagyan v Canada (Citizenship and Immigration), 2014 FC 1003 at para 23
).
[5]
However, as the Respondent notes “deference is not a blank cheque”. Where the
decision-maker acts arbitrarily or capriciously in making credibility findings,
the court will intervene (Ismaili at para 42, citing Mohacsi v Canada
(Minister of Citizenship and Immigration), 2003 FCT 429 at paras 18-19). And,
where credibility findings rest on plausibility determinations, the
implausibility must be clear and the RPD should provide a reliable and
verifiable evidentiary base for its plausibility finding (Aguilar Zacarias v
Canada (Citizenship and Immigration), 2012 FC 1155 at paras 9-11 [Aguilar];
Valtchev v Canada (Minister of Citizenship and Immigration)¸ 2001 FCT
776 at para 7 [Valtchev]).
[6]
This is a circumstance in which the Court will
intervene.
[7]
In this matter the Applicant claimed that he
left Ukraine to escape persecution by non-state actors because of his Jewish
ethnicity. The RPD found, on a balance of probabilities, that the Applicant’s
entire story of persecution was fabricated. The basis for this finding was that
the Applicant’s story was based on a “basic set of
facts” from three news stories and that “through
manipulation of these facts he concocted a story of personal persecution”.
Further, that he had concocted the story that he was being persecuted due to
his Jewish ethnicity because he wanted to remain close to his family in the US
until he could return to live with them.
[8]
However, a review of the articles cited by the
RPD demonstrates that they have little in common with the Applicant’s claim. The
first article “Ukraine Jews see alleged beating of Jewish man as symptom of
mounting nationalism”, dated October 22, 2013, details alleged extortion and
violent mistreatment of a Ukrainian Jewish businessman by police following his
arrest. The article states that, “this is a case of
anti-Semitism by state officials”. It also discussed the “ultranationalist”
Svoboda political party as part of a broader discussion about anti-Semitism. The
Applicant made no allegations of abuse by state officials and in his personal
information form (“PIF”) he referred to the Ukrainian National Assembly –
Ukrainian People’s Self-Defense (“UNA-UNSO”), not the Svoboda party. The
second article, “Report: Ukrainian police tortured, urinated on Jewish man” dated
October 8, 2013, details the same incident.
[9]
The third article, “Ukraine and the “Politics of
Anti-Semitism”: The West Upholds Neo-Nazi Repression of Ukraine’s Jewish
Community”, dated Mary 7, 2014, discusses alleged US and European Union support
for two Ukrainian neo-Nazi parties, Svoboda and the Right Party. It also discusses,
in general terms, the threat against Ukrainian Jews from nationalist and
neo-Nazi groups, although it does not refer to UNA-UNSO specifically and does
not refer to specific instances of violence upon which the Applicant could
construct a story.
[10]
The RPD in its reasons provided no clarification
as to the specific aspects of the three news articles on which the Applicant
might have based his story, nor did it provide any explanation as to how it
reached its conclusion that the Applicant concocted his entire claim based on
these three specific news reports. Nor am I able to discern a basis for that
conclusion on the record and having reviewed the reports.
[11]
More significantly, all of the articles were
published after the Applicant submitted his PIF in March 2012, including his
narrative. For that reason, the RPD’s conclusion that the Applicant, through
manipulation of the facts contained in the articles, concocted a story of
personal persecution is entirely unfounded. The conclusion is also therefore perverse.
This alone would be a sufficient basis on which to return the matter for
redetermination.
[12]
However, the RPD also made a negative
credibility finding based on the Applicant’s motivation for coming to Canada,
ultimately finding that he did so simply to be closer to his family in the US, not
because of persecution. In reaching this conclusion, the RPD states that
because the Applicant is Jewish and had stated that he started thinking about
leaving Ukraine in 2011, he was asked if he considered going to Israel. In its
decision, RPD noted that the Applicant responded “At
that point no, I was looking for any option [panel’s emphasis] to leave
that country. My sister and wife reside in the States so I wanted to leave as
soon as possible”. The RPD stated that this showed “the lengths he would go to to make sure that if he could not
be in the US, he would at least be as close as possible to his wife”
until they could be reunited. However, it is difficult to see how looking at
any option and wanting to leave as soon as possible led to the RPD’s conclusion
as to the unspecified lengths the Applicant would go to reunite with his
family.
[13]
Further, and more significantly, the RPD’s
question about why he didn’t consider Israel is found on page 13 of the hearing
transcript. The Applicant was asked why he didn’t move to Israel in 1999 to
which he responded that he did not have plans to immigrate at that time. He
had gone to the US to make money because he had the opportunity to do so and
planned to return to Ukraine. The discussion that the RPD relies on concerning
reuniting with his family is found on page 20 of the transcript and is given in
answer to a completely different question about when, where and how often he
sought medical attention for alleged beatings in 2010 and 2011. Further, a
review of that portion of the transcript makes it clear that the Applicant was
explaining that it was only after the 2011 beating that he started thinking
about leaving. This explanation speaks to persecution as his motivation for
fleeing, rather than family unification. The RPD appears to have
misapprehended the Applicant’s evidence. For these reasons, the RPD’s negative
credibility findings based on a “concocted story”
are unreasonable.
[14]
I would also note that the Respondent submits
that the Applicant was found to not be credible based on the RPD’s finding of
numerous inconsistencies, contradictions and omissions in his evidence.
However, in my view, this is not supported by the RPD’s reasons or the record,
including a review of the transcript from the hearing. The only discrepancy
noted the by Respondent in its submissions was in the Applicant’s marital
status as reported on his visa application and in his PIF. This discrepancy
was not noted in the RPD’s decision, nor was it discussed during the hearing. The
Respondent does not specify any other inconsistencies, contradictions or
omissions.
[15]
In any event, any inconsistencies should have
been put to the Applicant to provide him with an opportunity to address them (Vorobieva
v Canada (Solicitor General), (1994) 84 FTR 93 at para 9; Kumara v
Canada (Citizenship and Immigration), 2010 FC 1172 at para 5) particularly if
used to impugn his credibility, which was the issue central in this matter (Ongeldinov
v Canada (Citizenship and Immigration), 2012 FC 656 at paras 21-22).
[16]
I would also note that the RPD’s treatment of
some of the corroborative documentary evidence was also unreasonable. For
example, the Consultative Conclusion by a Specialist dated March 16, 2010 was
prepared by a physician, it describes the Applicant’s injuries and refers the
Applicant for a forensic examination. A Forensic Examination Report, dated
March 17, 2010, (“2010 Report”) indicates that it is made in accordance with a
reference from the police. It addresses three questions put to the experts,
being, what were the injuries, what caused them, and, if they could have been
sustained by a beating, with what object and how. The report itemises and
replies to all three questions, finding that the injuries were caused by
hitting with blunt objects. It is issued by the Ministry of Health of Ukraine.
[17]
The RPD describes the 2010 Report as a “police/medical forensic report” and concludes,
contrary to the Applicant’s claim that the police had not helped him, that the
police did take action by referring the Applicant for a medical examination.
The RPD also found that the report did not discuss who caused the injuries.
Further, that if the injuries had been the result of racially motivated
violence, then on a balance of probabilities, the report would have said so. The
RPD then refers, by way of example, to news articles chronicling the “problems facing Jews in Ukraine” and, in particular, the
article entitled “Jews feel increasingly targeted by
nationalists”. As noted above, that article described a Jewish businessman
who was beaten by two detectives. The RPD states that the assault on the
businessman was addressed at a conference by the president of the Ukrainian
Jewish Committee who is also a member of parliament. This, however, does not explain
how the article supports the RPD’s conclusion that the 2010 Report should have
stated that the attack was racially motivated. It also ignores that the report
lists three specific questions to be answered, none of which required
identification of the perpetrators or their motivation.
[18]
Having found that the 2010 Report would have
stated the attack’s ethnic motivation if that were the case, the RPD then
inferred that the attack was, therefore, not ethnically motivated. In further support
of this inference, the RPD also cites an article which states that “Anti-Semitic assaults are rare in Ukraine” which it
preferred to the Applicant’s testimony.
[19]
It is not the role of this Court to re-weigh the
evidence and the RPD is entitled to draw inferences from the evidence. However,
as noted above, when credibility findings result from plausibility
determinations, the implausibility must be clear and there must be a reliable
and verifiable evidentiary base for the plausibility finding (Aguilar at
paras 9-11; Valtchev at para 7; Gjelaj v Canada (Citizenship and
Immigration), 2010 FC 37 at para 4). Here, however, the RPD provides no discernable
evidentiary foundation upon which it bases its inference that, if the March
2010 attack was racially motivated, the 2010 Report would have included that
information. Nor is the implausibility clear given that the 2010 Report responds
to three specific stated questions which do not address motivation. The
finding is therefore unreasonable.
[20]
I note here that while the RPD’s analysis of the
2010 Report was made in the context of its consideration of the availability of
state protection, in effect, it amounts to a credibility analysis.
[21]
Although I also have concerns with the RPD’s
analysis of delay which was made in the context of credibility and subjective
fear, my conclusions above are sufficient to warrant returning the matter for
redetermination.
[22]
As to state protection, the RPD’s analysis
hinged on its unreasonable treatment of the corroborating medical report and
its unreasonable credibility findings to discount the Applicant’s testimony
regarding the alleged attacks and his three unsuccessful efforts to obtain
police protection. Aside from these unreasonable findings, much of what
remains of the RPD’s state protection analysis focuses on general facts
regarding Jewish-Ukrainian citizens. The RPD noted, amongst other things, that
there were “no reports of religious persecution by the
government” and that in 2012 “the largest Jewish
community centre in the world was opened” in Ukraine. The RPD’s state
protection analysis was therefore also unreasonable.
[23]
It is not for this Court to substitute its own
credibility assessment (McLean at paras 19-33) or to determine whether,
on the evidence, the Applicant has fulfilled its onus in establishing the
inadequacy of state protection. Accordingly, a new hearing is required.
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