Date: 20040407
Docket: IMM-1522-03
Citation: 2004 FC 545
Toronto, Ontario, April 7th, 2004
Present: The Honourable Madam Justice Gauthier
BETWEEN:
ROMAN KUSHNIR
LESYA KUSHNIR
YULIYA KUSHNIR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Upon an application by Mrs. Lesya Kushnir, her husband and her daughter to judicially review the decision of the Refugee Protection Division (RPD) rejecting their claim under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) which were based on Mrs. Kushnir's alleged fear of persecution as an activist fighting corruption within the enterprise where she worked in Ukraine.
[2] Upon reviewing the parties written submissions and hearing their counsel's representations.
[3] Upon noting that the applicants take issue with the credibility and implausibility findings of the RPD and argue that it erred i) in finding that Mrs. Kushnir had failed to mention in her PIF the 3 attacks that she testified about and ii) in failing to comment on the medical certificate she produce to corroborate the May 20, 1998 event as well as the police report following the attack of January 25, 1997.
[4] Upon determining that the standard of review applicable to the RPD's credibility and implausibility findings is patent unreasonableness.
[5] Upon concluding that after reviewing the whole of the evidence on file including the transcript of the hearing, the Court is not satisfied that the RPD made a reviewable error. The RDP said "that the female claimant had omitted any mention in her PIF of the 3 attacks...When she asked why she had not included these attacks in her narrative, she explained that...". The question asked during the hearing clearly referred to omissions in her original PIF. Read in that context, it is clear that the RPD was referring in its decision to Mrs. Kushnir's original PIF. This finding was not perverse or arbitrary because there is absolutely no mention of the January 25, 1997 beating or of the July 7, 1998 attack in that document. With respect to the events that took place on May 20, 1998, the applicant simply said in her PIF that two men from the police came to see her at the end of May and "continued similar treats like in April and told me to come to the police detention centre on June 8, 1998 to further deal with my case". It was not irrational to conclude that the incident of May 20, 1998 which allegedly resulted in the hospitalization of Mrs. Kushnir for 2 weeks was not properly or sufficiently described by the reference to as "similar treats" in her PIF. The RPD was entitled to rely on those omissions even if one of them was later corrected by way of an amendment shortly before the hearing. I agree with the RPD that those events were central to Mrs. Kushnir's claim. It is trite law that it is not unreasonable for the RPD to take a dim view of omissions or inconsistencies in respect of significant events.
[6] The RPD was also entitled to rely on common sense and logic to assess the plausibility of Mrs. Kushnir's explanation of certain facts which did not logically agree with her story. The RPD cannot avoid addressing plausibility against the backdrop of other evidence and its own understanding of human behavior.
[7] The documentary evidence clearly indicated that Mrs. Kushnir had worked with the same company for 21 years, she had been promoted as manager of one of the stores at the beginning of 1997 and in October 1997, her husband started working for this employer from whom the claimant was allegedly receiving treats since at least 1992 when the company was privatized. Mrs. Kushnir explained that her promotion and the hiring of her husband were tactics to coerce her into joining in the corrupt activities. The RPD did not find this explanation persuasive or plausible because of her alleged long history as an outspoken critic of the company.
[8] On the basis of the evidence on file, this conclusion was open to the RPD. The Court notes particularly that Mrs. Kushnir was not the only outspoken critic in her company. But when asked about it, she could not identify any other who had been promoted. She also testified that when she failed to stop exposing corruption, the pressures on her increased. In August 1997, she again denounced the corruption to her management. In this context, it is not unreasonable, let alone patently unreasonable to conclude that it is not plausible that the management of the company would expect Mrs. Kushnir to suddenly see the light and "convert as it were to the dark side" by hiring her husband several months later.
[9] Finally, the RPD did not expressly comment on the police report of January 1997 nor did it explain precisely how it dealt with the medical report establishing that she had been hospitalized starting May 20, 1998.
[10] The RPD does mention this certificate twice in its decision, first at page 3 where it notes that the claimant was allegedly hospitalized after 2 of the attack. This, in the panel's view, was an additional reason why more details of the events of May 20, 1998 should have been included in her PIF. Then, on page 5, the RPD refers to the two medical certificates in Exhibit C-4 and the fact that Mrs. Kushnir suffered mental collapse. As acknowledged by the applicants' counsel, the RPD does not have an obligation to comment on each piece of documentary evidence produced but the burden of explanation increases with the relevance of the evidence. Also, the Court will infer from the silence of the RPD with respect to a particularly relevant document that the RPD failed to consider it and therefore committed a reviewable error. In this particular case, the applicant produced the translation of only a few lines of this two page document (in Russian) which simply records the fact that the applicant was hospitalized as of May 20, 1998 and that a diagnosis of hypertension and nervous emotional breakdown was made. The RPD clearly considered both of those facts. There was nothing else to say for the document proved nothing more. As to the police report, there was no need to mention it as it did not discuss the cause or motive of the attack and the RPD had already said that the attack took place but for reasons unrelated to the claim.
[11] In any event, even if the failure to mention those documents amounts to an error, the Court find that it would not be a material error because of the other findings of the RPD with respect to implausibility and its additional finding with respect to the claimants' delay in making their claims. Mr. and Mrs. Kushnir filed their refugee claims almost 2 years after their arrival in Canada and they did so only after their application for landing as independent immigrants were rejected. These two findings were open to the RPD and are not unreasonable.
[12] The parties did not submit any question for certification and the Court finds that this case turns on its own fact.
ORDER
THIS COURT ORDERS that the applications are dismissed.
"Johanne Gauthier"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1522-03
STYLE OF CAUSE: ROMAN KUSHNIR
LESYA KUSHNIR
YULIYA KUSHNIR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 6, 2004
REASONS FOR ORDER
AND ORDER BY : GAUTHIER J.
DATED: APRIL 7, 2004
APPEARANCES:
Mr. Arthur Yallen FOR THE APPLICANTS
Ms. Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gilbert & Yallen
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040407
Docket: IMM-1522-03
BETWEEN:
ROMAN KUSHNIR
LESYA KUSHNIR
YULIYA KUSHNIR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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