Citation: 2006 FC 235
Ottawa, Ontario, February 24, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE Simon Noël
BETWEEN:
ELENA
ZAVADSKAIA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by
the Refugee Protection Division (RPD) dated April 18, 2005. In this decision,
the RPD denied the refugee claim of Elena Zavadskaia (applicant). According to
the RPD, the applicant was not a Convention refugee or a person in need of
protection within the meaning of sections 96 and 97 of the IRPA.
ISSUES
[2]
The only
issue is the following:
-
Did the
RPD err in fact in assessing the applicant’s credibility and in questioning
whether her fear of persecution was well founded?
CONCLUSION
[3]
For the
reasons that follow, the application for judicial review is dismissed, because
there is no error warranting this Court’s intervention.
FACTS ALLEGED BY THE APPLICANT
[4]
The
applicant alleges that her common law spouse, Sergey Shalenko, a fisheries
inspector in Russia, was pressured during 2002 and 2003 by individuals in
influential positions who wanted him to turn a blind eye to the illegal
activities at the port where he was employed. In the spring of 2003, Mr.
Shalenko inspected several ships and realized that major crimes had been
committed and intended to report it. In May 2003, the applicant received
several threatening phone calls at home. The pressure on the couple and on Mr.
Shalenko then intensified. Mr. Shalenko was going to tell the story to the
press, and he was beaten and threatened as a result. In July 2003, the
applicant alleges that she had been assaulted and threatened. She attempted to
report the situation to the police and to the Minister of the Interior, but was
unsuccessful. In September 2003, they were assaulted and threatened once again.
After a short hospital stay, the couple moved and the applicant arrived in
Canada in October 2003. It was not however until January 2004 that she
applied for refugee protection.
ANALYSIS
[5]
The
applicant alleges that the RPD made a number of errors in fact. I will refer to
the applicant’s most significant arguments, bearing in mind that the
appropriate standard of review is that of patent unreasonableness (Thavarathinam
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469,
[2003] F.C.J. No. 1866 (F.C.A.), at paragraph 10; Aguebor v.
Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No.
732 (F.C.A.), at paragraph 4).
1. The applicant’s
relationship with Mr. Shalenko
[6]
First, the
applicant alleges that the RPD noted that she had failed to adduce evidence
attesting to the “common-law relationship” that she says she has with M.
Shalenko. In my opinion, this is not an error, since the applicant filed only a
declaration of residence in this respect. That declaration states that Mr.
Shalenko is her husband (page 122 of the record), while she states in her
Personal Information Form that Mr. Shalenko is her “common law spouse”. The
applicant contradicted the documentary evidence that she filed, and she
contradicted herself once again when confronted with this inconsistency at the
hearing. The panel was entitled to state, considering this inconsistency, inter
alia, that there was no evidence of the common-law relationship.
2. The applicant’s
children did not accompany her
[7]
The
applicant also took issue with the following passage from the RPD’s decision:
Although she
was not directly involved in this business of illegal fishing and claims to be
the direct victim of a merciless mafia who could find her anywhere in Russia,
according to her testimony and narrative, the claimant left behind her
children, who could be innocent victims of that merciless Russian mafia; the
panel finds this strange. Because of this behaviour, the panel doubts that she
has a fear for her life.
The applicant contends that this finding of fact is
perverse.
[8]
This is
not my opinion. If the applicant had been used to blackmail Mr. Shalenko to
obey the instructions of the persecutors, it appears to me that the applicant’s
young children could also have been used to this end. Therefore, the applicant
should also have thought that her children would be easy prey and should have
wanted to bring them with her to keep them safe. It was therefore not
unreasonable for the RPD to determine that this cast doubt on the existence of
the applicant’s fear.
3. The additional
documents
[9]
At the
hearing of February 18, 2005, the applicant filed before the panel three
documents stating that there had been assassinations in import-export companies
in Russia. She now claims that the RPD did not rule on the admissibility of
these documents. However, a review of the transcript of hearing indicates that
one of the documents could have been filed within the time limits prescribed
under subsection 29(4) of the Immigration and Refugee Protection
Regulations (Regulations). The following passage (page 293 of the record)
establishes moreover that the applicant’s counsel understood and consented to
the decision made by the presiding member:
[translation]
BY THE
PRESIDING MEMBER (to counsel)
- Okay, so I
do not think that these documents address, may add, we’ll see in the course of
the hearing. I will not receive the one dated the 17th, dated October 13
[2004], I’m giving it back to you.
R. Right,
fine Sir.
- We will
file the two (2) others and will examine them eventually on their merits.
R. Fine, Sir,
thank you.
[10]
The
applicant also contends that the RPD did not act correctly with regard to a
photocopy of a passport of the applicant’s friend and a letter from her,
documents that the applicant tried to file at the hearing of February 21, 2005.
The applicant says that she sought refuge at this friend’s house before coming
to Canada, and the letter allegedly confirmed the existence of a relationship
between Mr. Shalenko and herself.
[11]
In
reviewing the hearing transcripts, I noted that the previous Friday (February
18, 2005), the discussion at the hearing pertained to the lack of evidence
filed by the applicant establishing the existence of this relationship (page
344 of the record). The RPD then undertook to review the documents and to
determine their relevance. Section 30 of the Regulations, which provides for
filing documents after the prescribed time limit, reads as follows:
|
30. A party who does not provide a
document as required by rule 29 may not use the document at the hearing
unless allowed by the Division. In deciding whether to allow its use, the
Division must consider any relevant factors, including
|
30.
La partie qui ne transmet pas un document selon la règle 29 ne peut utiliser
celui-ci à l’audience, sauf autorisation de la Section. Pour décider si elle
autorise l’utilisation du document à l’audience, la Section prend en
considération tout élément pertinent. Elle examine notamment:
|
|
(a)
the document's relevance and probative value;
|
a) la pertinence et la valeur probante du
document;
|
|
(b)
any new evidence it brings to the hearing; and
|
b) toute preuve nouvelle qu’il apporte;
|
|
(c)
whether the party, with reasonable effort, could have provided the document
as required by rule 29.
|
c) si la partie aurait pu, en faisant des
efforts raisonnables, le transmettre selon la règle 29.
|
[12]
The
documents were in fact examined (pages170 and 171), and the RPD stated that it
did not see their use or relevance. The RPD did not however formally dismiss
the document, as the following passage from the transcript illustrates:
[translation]
BY COUNSEL
(to the presiding member)
- It’s, it’s
, it’s only to tell you, Sir, it is my impression that the internal passport
was in fact meant to establish who it was from and it’s in one fax, as you can
see.
A. Yes, I can
see it, but . . . No, I do not see the use, unless along the way we raise
what these documents are supposed to establish, then we can decide.
-
If
I may, it is perhaps because when the hearing let out I told Ms. [Zavadskaia]
that the only document finally that did not have many documents tying her to
her husband, then it’s, it’s the steps that she took, but I did not know.
[Emphasis
added.]
[13]
It appears
from this passage that the presiding member did not formally rule on the
document. However, of his own admission, the applicant’s counsel did not know
that this document existed and did not see fit to use the document at the
hearing and did not ask any questions to clarify the situation. Even though the
RPD could have refused the document, it did not do so and the applicant’s
counsel was entitled to try to use it in his submissions. As he did not do so,
he can hardly claim on judicial review that he suffered prejudice, as he
himself did not consider it useful to use the document.
4. The applicant’s
passports
[14]
The
applicant claims moreover that the RPD confused her two passports, i.e. her
internal passport and her external passport (both were declared in one of the
forms in the record, page 51 of the record). On that point, the applicant is
correct. However, she can only blame herself if the decision-makers were
confused, since she did not make a complete declaration in her PIF. In fact, at
question 24, she should have listed all of the travel documents that she had
been issued over the last 20 years. Yet, she only mentioned one of her
passports (page 21 of the record). Further, I would add that it is but one
factor among all the reasons that seriously undermine the applicant’s
credibility. In Stelco Inc. v. British Steel Canada Inc., [2000] 3
FC 282, [2000] F.C.J. No. 286, at paragraph 22,
Evans J.A. writes:
[E]ven if the
Tribunal committed a reviewable error on some of its findings of fact, its
decision to rescind will still be upheld if there were other facts on which it
could reasonably base its ultimate conclusion.
[15]
This
decision has been followed by our Court and applied in judicial reviews of RPD
decisions (See Agbon v. Canada (Minister of Citizenship and Immigration),
2005 FC 1573, [2005] F.C.J. No. 1936, at paragraph 10; Jarada v. Canada
(Minister of Citizenship and Immigration), 2005 FC 409, [2005]
F.C.J. No. 506, at paragraph 22). In other words, if there is one
weak element in the RPD’s reasons, not all of the reasons will crumble. In
this case, the elements of fact relied on by the RPD to determine that the
applicant lacked credibility are numerous, solid and supported by the evidence:
-
The
applicant was uncooperative and evasive during her testimony and often
“adjusted” her testimony to the RPD’s questions;
-
The
applicant left her children behind, while alleging that she herself was used
for blackmail;
-
The
applicant had no documents regarding Mr. Shalenko, and contradicted herself
regarding the nature of the relationship between them;
-
The
applicant’s PIF contradicted the evidence that she filed regarding what she was
doing between 1999 and 2003;
-
Mr.
Shalenko remained in Russia;
-
The
applicant did not claim protection right away.
5. Alleged minor
errors
[16]
Finally,
the applicant alleged that the RPD made two minor errors. First, the RPD wrote
that the applicant has two daughters while her declaration of residence states
that she has a son and a daughter. Errors of this kind, not determinative or
material, having nothing to do with the RPD’s reasons, do not warrant the
intervention of this Court (see Sukhu v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1662, [2005] F.C.J. No. 2036 and Gonulcan v.
Canada (Minister of Citizenship and Immigration), 2004 FC 392, [2004]
F.C.J. No. 486 at paragraph 3), unless such errors are so numerous
and repeated that they are sufficient to demonstrate that the RPD did not
consult the documents before it or that it disregarded the evidence.
[18]
The
parties were invited to propose questions for certification. No question was
proposed.
JUDGMENT
THE COURT ORDERS THAT:
- The application for judicial
review be dismissed and no question be certified.
“Simon
Noël”
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