Docket: IMM-236-15
Citation:
2016 FC 1415
Ottawa, Ontario, December 29, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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EVGENIY
CHECHKALIUK
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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]
This is an application for judicial review by
Evgeniy Chechkaliuk [the Applicant] pursuant to s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA], of a decision
made by the Refugee Protection Division of the Immigration and Refugee Board
[RPD], dated November 18, 2014, in which the RPD found that the Applicant was
not a Convention refugee or a person in need of protection pursuant to sections
96 and 97(1) of the IRPA [the Decision].
[2]
The Applicant is a self-represented litigant. He
did not appear at the hearing of this judicial review, either personally or by
counsel, although he was duly served and although his name was called both in
Court and in the lobby both before and after a brief recess which was given to
await his arrival.
[3]
The Applicant is a 60-year-old refugee claimant
from the Ukraine. He originally alleged a fear of persecution and harm by
members of a rival political party led by Victor Yanukovich (PPVY) by reason of
his own political activities and membership in the rival Nadony RUH Party
(NRP), a pro-Western group. He also claims to be a person in need of protection
under s. 97(1) of the IRPA.
[4]
In the Applicant’s oral testimony before the
RPD, however, he only makes mention of persecution by a group of individuals
known as the Seven Butsruniuk Brothers [the 7BBS], with whom it appears he had
a dispute over money he owed them as a result of goods they supplied him. He
did not mention the 7BBS on his Personal Information Form (PIF) and when asked about
this omission, he explained he was suffering from a severe headache at the time
as a result of being beaten and had forgotten to include this information. He
also stated he was afraid to tell anyone about what had happened for fear that
something would happen to his family in Ukraine. The Applicant alleges that the
7BBS that called his wife and told her they knew where he was and, although
nothing had yet happened to his wife and children, someone had thrown a rock at
his son’s car. He states that he had thought of going to Poland or Germany, but
the 7BBS have agents in Czechoslovakia and “might find
you anywhere”. It is not until later in his oral testimony that the
Applicant states that the 7BBS worked for an opposing party when Yanukovych
came into power.
[5]
The Applicant travelled to Turkey by bus in May
2012 by way of Bulgaria and Romania. While there, he bought a fraudulent
Turkish passport. He travelled to Canada on this passport in June 2012 and
claimed refugee status in August 2012.
[6]
According to Counsel who represented the
Applicant at the time of his RPD hearing, the Applicant’s narrative had changed
due to the constantly changing political situation in Ukraine; essentially, the
political situation upon which the Applicant claimed refugee status in his PIF
had become irrelevant by the time of his RPD hearing. Therefore, at the time of
his hearing, his fear of persecution remained only in relation to the “criminal elements” – namely, the 7BBS.
[7]
On November 18, 2014, the Applicant’s refugee
claim was heard and dismissed by the RPD. Credibility was the determinative
issue. The RPD found the Applicant to not be a credible witness and dismissed
his claim for protection on that basis.
[8]
The RPD made its credibility findings on several
grounds. First, the Applicant’s story changed from a risk of political
persecution to a commercial dispute with the 7BBS over money owed for supplies.
Secondly, the RPD noted his three-year delay in leaving Ukraine, which of
course went to the subjective risk of persecution; it found his allegations at
odds with country condition documents and made a general credibility finding
against him on the basis of his demeanour and the manner in which he answered
questions among other grounds. Finally, the RPD noted the Applicant did not
claim protection in Bulgaria, Romania or Turkey as he could have.
[9]
In conclusion, the RPD stated:
[14] In deciding this claim, I considered
the claimant did not identify the 7BBS as his agents of persecution from the
outset. Thus, I find his alleged well-founded fear of persecution based on
political grounds not to be valid. He professes to have a well-founded fear of
persecution, however, his behaviour and actions belie such a conviction. I
find, in his effort to escape his alleged persecution and harm (by those after
him, whomever they may be), the claimant travelled to Turkey through Bulgaria
and Romania but did not seek refuge there. I find if the claimant truly feared
persecution and harm, as claimed, that he could also left [sic] Ukraine
sooner. Instead, he chose to misrepresent himself by purchasing a fraudulent
passport in Turkey in order to come to Canada and made [sic] this claim.
The Federal Court, in Maldonado,5 held that: “when an
applicant swears to the truth of certain allegations, this creates a
presumption that those allegations are true unless there be reason to doubt
their truthfulness.”
[15] Based on the evidence and testimony
presented in the claim, I am drawing an adverse inference as to the credibility
of the claimant as a witness, and the credibility of his story. I did not
believe his story because he did not provide reasonable explanation to satisfy
the omission, contradiction, inconsistency and discrepancy between his written
and oral testimony. I find on a balance of probabilities that he was not persecuted
or harmed for his political activities as alleged in his written testimony.
Also, I did not find sufficient evidence that he was persecuted or harmed by
the 7BBS as alleged. Accordingly, I find there is not a serious possibility the
claimant would be persecuted or harmed by the PPVY or 7BBS if he returns to
Ukraine.
[footnotes deleted]
[10]
As to the standard of review, in Dunsmuir v
New Brunswick, 2008 SCC 9 at paras 57, 62 [Dunsmuir], the Supreme
Court of Canada held that a standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a particular
category of question.” The issue of credibility is reviewable on the
standard of reasonableness: Rahal v Canada (MCI), 2012 FC 319 at para 22
[Rahal]. The Respondent submits that substantial deference is to be
afforded to credibility findings of the RPD: Rahal at paras 22, 42; Zaree
v Canada (MCI), 2011 FC 889 at para 6.
[11]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[12]
In my respectful view, there is no merit in this
application for judicial review. The Applicant’s request was rejected on the
basis of credibility findings and country condition evidence. Credibility
findings lie at the heartland of the RPD’s evidentiary and fact-finding
jurisdiction. It is significant that the Applicant does not challenge any of
the credibility findings in his written filings with this Court.
[13]
While the Applicant argued that sworn evidence
is presumed to be true, this presumption may be rebutted, as it was here, by the
existence of reasons to doubt its truthfulness: Maldonado v Canada (Minister
of Employment and Immigration) (1979), [1980] 2 FC 302, 31 NR 34 (FCA), I
see no reviewable error in the inferences drawn by the RPD because they were
based on the evidence. Moreover, delay in seeking protection is a well-accepted
ground for doubting subjective fear (the onus to establish which lay on the Applicant):
Antrobus v Canada (MCI), 2012 FC 3 at para 10; Goltsberg v Canada
(Minister of Citizenship and Immigration), 2010 FC 886 at para 28 (“An adverse credibility finding can be based on any aspect of
the applicant’s testimony, as well as the applicant’s actions, such as delay in
claiming refugee status in Canada […]. Delay or failure to claim refugee
protection is an important consideration in assessing whether a claim is
well-founded”); Singh v Canada (Minister of Citizenship and
Immigration), 2009 FC 1070 at para 21 (“As for the
delay in filing a claim, this is certainly a factor the panel could take into
consideration in assessing the applicant’s credibility, even if it could not be
a determinative factor in itself …. It is true that the applicant’s subjective
fear, on which some doubt may be cast, given the delay in filing his claim, is
not relevant under section 97 of the Act. Nonetheless, the objective
risk allegedly faced by the applicant must be based on a credible story.”);
Ngwenya v Canada (Minister of Citizenship and Immigration), 2008 FC 156
at para 19 (“Refugees are not obliged to seek asylum in
the first country they reach, however a failure to make a claim at the first
safe opportunity to do so can impugn the Applicant’s credibility”); Gamassi
v Canada (Minister of Citizenship and Immigration)) (2000), 194 FTR 178 at
para 6, 103 ACWS (3d) 815 (FC-TD) (“The delay in
claiming refugee status, which is not explained, as in this case, is an
important factor in determining the lack of subjective fear of persecution”);
Huarta v Canada (Minister of Citizenship and Immigration) (1993), 157 NR
225, 40 ACWS (3d) 487 (FCA).
[14]
Reviewed as a whole, the reasons of the RPD are
justified, transparent and intelligible. They fall within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[15]
The Respondent, who addressed the Court on the
merits of this matter, did not identify a question to certify, and in my view
none arises.
[16]
This application for judicial review must therefore
be dismissed. There is no question to certify.
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