Date: 19980401
Docket: IMM-1480-97
BETWEEN:
VANDA MOUDRAK
MARKO MOUDRAK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of the March 10, 1997 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) wherein the Board held that the applicants were not Convention Refugees.
FACTS
[2] The applicants, Vanda Moudrak, and her son, Marko Moudrak, are Ukrainian citizens of Polish descent who arrived in Canada on May 15, 1992. They left Ukraine and sought Convention Refugee status in Canada on the grounds that, following the independence of Ukraine in 1991, they became targets of harassment, vandalism and discrimination due to rising nationalist sentiment. In addition, Mr. Moudrak claims that he has a fear of serving in the Ukrainian armed forces for two reasons. First, Mr. Moudrak believes that, as an ethnic Pole, he would be singled out for dangerous assignments. Second, Mr. Moudrak is a conscientious objector to military service. This claim by Mr. Moudrak was not pursued at the hearing before me. That is to say, Mr. Moudrak no longer contends that the Board erred in its reasons when dealing with the issue of his being a conscientious objector to military service.
[3] The Board denied their claims on the ground that there was little evidence that minorities such as the applicants faced persecution. The Board noted that the Ukrainian government has a set of policies that recognize the rights of minorities. The Board also cited the organizations created by the Polish population in the Ukraine in order to promote cultural development. There was also evidence of a good relationship between Ukraine and Poland and a Ukrainian government policy to encourage the return of ethnic groups expelled by Stalin.
[4] At the hearing before the Board, the applicants cited a case of a Polish citizen visiting Ukraine who was allegedly attacked by police and later died from the injuries. The Board characterized this as an attack by corrupt police who were merely seeking money from a visitor, not an attack on a Polish person due to his ethnicity. The Board also wrote that none of the documentary evidence identifies ethnic Poles as a population at risk of persecution in the Ukraine.
[5] As for the applicants' evidence that they were harassed by Ukrainians with ultranationalist leanings, the Board found that the applicants' own evidence characterized these acts as being limited to verbal insults and minor acts of vandalism. The Board concluded that these acts did not amount to persecution.
[6] In addition, the Board noted that Ms. Moudrak travelled to Poland in 1992 with the intention of returning to Ukraine. The Board believed that this action is at odds with a well-founded fear of persecution. The Board also noted that when Ms. Moudrak spoke of her visit to Canada in 1992, she first stated that she did not fear returning to the Ukraine but later said that she was afraid to return. The Board said that this contradicted several other statements which were more detailed and persuasive.
[7] The Board also placed considerable weight on the fact that the applicants are good candidates for repatriation to Poland but have made no effort to consider this alternative. The Polish Citizenship Act states in Article 2.1 that "[p]ersons arriving to Poland as repatriates shall acquire Polish nationality by virtue of law." The evidence as to the applicants' background appears to suggest that they would fulfil the requirements under the Polish Citizenship Act. The Board stated that the applicants' failure to investigate Polish citizenship is irreconcilable with a well-founded fear of persecution in the Ukraine.
SUBMISSIONS
1. The Applicants' Submissions
[8] The applicants submit that any systematic form of harassment or cumulative acts of harassment directed against an individual amounts to persecution. The applicants argue that their property was vandalized including threatening messages and profanities, false accusations and the stealing of tools at work. The evidence provided also showed that Ms. Moudrak went to the authorities on approximately ten occasions and each time she was not helped. The applicants submit that their freedom and ability to live was being interfered with by Ukrainian nationalists.
[9] The applicants also dispute the Board's finding that the Polish visitor who was robbed and killed was only attacked for his money. The applicants submit that, in concert with other evidence before the Board, individuals who were not ethnically Ukrainian were in danger in the Ukraine after independence. The applicants also point to three documents which discuss Ukrainian ultranationalist movements and support the applicants' claim that they did suffer persecution due to their Polish background.
[10] Concerning the applicants' failure to acquire Polish citizenship, the applicants submit that there is no automatic right to citizenship and that Polish authorities have the discretion to award citizenship. The applicants submit that when Ms. Moudrak was in Poland in 1992, she was unable to think about such an action because she was upset at the death of her daughter. Furthermore, the applicants submit that their trip to Canada in 1992 was an opportunity to leave the harassment in the Ukraine. Thus, the applicants submit that, given that the Board accepted that the events in their Personal Information Form and in their testimony did occur, then this should lend credence to their statement that they left the Ukraine because of persecution.
[11] Finally, the applicants submit, in their written submissions, that the reason for the applicants' delay in applying for Convention Refugee status in Canada is that they were being sponsored by Ms. Moudrak's husband whom she met and married in Canada. The applicants argue that, contrary to the findings of the panel, the applicants were taking steps to remain in Canada and only applied for refugee status after they were faced with the prospect of being returned to the Ukraine. Therefore, the applicants submit that this delay should not impugn the well-foundedness of the claim since it has been adequately explained.
2. The Respondent's Submissions
[12] The respondent submits that the Board did not err in holding that the incidents amounted to harassment and not persecution. The respondent cites three decisions for the proposition that the dividing line between persecution and harassment is hard to establish and the reviewing court should only interfere if the conclusion is capricious or unreasonable.
[13] The respondent notes that the Board found that the harassment suffered by the applicants, "even though repeated over time", did not amount to persecution. Therefore, the respondent submits that the Board did turn its mind to the cumulative effect of the harassment.
[14] Furthermore, the respondent points to the documentary evidence that the Board used to find that the applicants, as ethnic Poles, would not face a serious possibility of persecution. The respondent submits that there is no indication that the Board committed any reversible error in weighing this evidence.
[15] Concerning the Board's findings on the applicants' conduct, the respondent submits that the Board can take their actions into account. The Board stated that the applicants had left and returned to Ukraine, had made no attempts to seek alternative protection in Poland and did not apply for refugee status at the first opportunity. The respondent submits that the Board could correctly consider these actions to be inconsistent with a well-founded fear of persecution in the Ukraine.
DISCUSSION
[16] After reviewing the evidence before the Board, I am not convinced that a reviewable error has been made. The Board did not deny the fact that the applicants did suffer some harassment from Ukrainian nationalists but found that it did not amount to persecution. I find that the evidence of harassment before the Board consisted of minor acts of vandalism and verbal insults. In accordance with the decision of the Federal Court of Appeal in Sagharichi v. Canada (M.E.I.) (1993), 182 N.R. 398, I do not find that the Board's conclusion is capricious or unreasonable such that it should be subject to review.
[17] In addition, contrary to the applicants' submission, the Board did consider the cumulative effects of the harassment. I do not believe that the Board disregarded the cumulative effects due to the fact that it noted that the harassment was "repeated over time". In my opinion, the Board considered that despite the cumulative effect of the harassment, it was not persecutory and the evidence does not suggest that this conclusion was unreasonable.
[18] The Board also considered the documentary evidence in detail in making its decision. There is no evidence that the Board did not consider the documentary evidence with respect to the existence of ultranationalist Ukrainian groups. Indeed, the Board's acceptance of the applicants' claim that they were harassed by ultranationalist Ukrainians lends credence to that interpretation of the decision. As for the applicants' submission that the Board erred in finding that the Polish visitor was attacked for his money, the applicants' contention that he was attacked due to his Polish ethnicity is mere conjecture and unsupported by the evidence.
[19] Furthermore, I do not believe that the Board erred by taking into account the applicants' failure to investigate Polish citizenship. The applicants' argument that Polish citizenship is not guaranteed does not explain why they would not inquire into this possibility if they truly felt persecuted in the Ukraine. The Board was perfectly entitled to find that this was inconsistent with a well-founded fear of persecution.
[20] Finally, the applicants and the respondent refer, in their written submissions, to the delay between the date that the applicants arrived in Canada and the date when they applied for Convention Refugee status. The Board does not cite the delay in its reasons so I assume that it had no bearing on its decision. In any event, the weight of the other evidence cited by the Board was sufficient to justify its determination.
CONCLUSION
[21] For the above stated reasons, the application for judicial review must be denied.
[22] The parties have informed the Court that they will not file a question for certification.
J.F.C.C.
OTTAWA, ONTARIO
April 1, 1998
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