Date: 20100219
Docket: IMM-424-09
Citation: 2010 FC 187
Ottawa, Ontario, February 19, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
VITALIY
CHERNYAK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated January 8, 2009, wherein the Board determined that the applicant was not
a Convention refugee or a person in need of protection.
Factual Background
[2]
The
applicant, a citizen of Ukraine, alleges he is a
homosexual in a homophobic country and his life is at risk in Ukraine. The applicant
alleges that although homosexuality in Ukraine is no longer
a criminal offence, the attitude towards homosexuals is extremely homophobic
and negative.
[3]
The
applicant allegedly fears skin-heads and members of the Ukrainian society who
are homophobic. The applicant states that although the authorities would never
admit it, homosexuals are persecuted and harassed by people and authorities all
over the country.
[4]
The
applicant had his first homosexual relationship at the Kiev University
from 1995 to 1997. The applicant’s classmates had doubts about his sexual
orientation and he was the victim of derogatory name calling.
[5]
The
applicant and his partner were beaten on February 14, 2006 at a café in a small
town known as Novodnestrovsk, Ukraine,
which is approximately 400 kilometres south-west of Kiev. The applicant
and his partner were attacked by four young men dressed in paramilitary
uniforms who had become aware that the applicant was homosexual.
[6]
The
applicant and his partner then sought treatment for their injuries at a
hospital and doctors contacted the police who took details about the attack.
The applicant believes the police were not interested in helping him because he
is homosexual. The police said they would contact the applicant if they
required additional information.
[7]
The
applicant followed-up with the police on the investigation approximately five
months later, in July 2006. The applicant was told his case was closed because
there was insufficient evidence to find his attackers.
[8]
The
applicant alleges he made a second attempt to obtain state protection in
September 2006. The doctors at the hospital had called the police who came to
visit the applicant following another attack by three homophobes on September
25, 2006.
[9]
The
applicant arrived in Canada on January 29, 2007. He made a claim for
Convention refugee status on February 8, 2007. A hearing took place on December
2, 2008.
Impugned Decision
[10]
The
Board concluded the applicant was not a Convention refugee and not a person in
need of protection. His claim was rejected. The Board accepted that the applicant
is a homosexual but found he was unable to rebut the presumption of state
protection by bringing forth clear and convincing evidence that protection
would not be forthcoming.
[11]
The
determinative issue for the Board was state protection. The issue of state
protection goes to the objective portion of the test of fear of persecution (Canada (Minister of
Citizenship and Immigration) v. Olah, 2002 FCT 595, 219
F.T.R. 152). There is a presumption that every state is able to protect its
citizens unless the state is unable to do so due to a complete breakdown of the
state apparatus. However, an applicant may rebut that presumption by bringing
clear and convincing evidence that protection would not be forthcoming. In this
case, the Board found the applicant did not provide persuasive evidence that
the police in Ukraine were
unwilling or unable to protect him.
[12]
The
Board noted homosexuality is decriminalized in Ukraine and this is
acknowledged by the applicant. While there are problems with the attitudes of
people in Ukraine towards
homosexuals, the Board found no indication from the documentary evidence that when
sought, protection would not be reasonably forthcoming to the applicant.
[13]
The
police took the statements of the applicant and his partner about the attack
and stated they would contact the applicant if additional evidence was
required. The police thus made efforts to find who was responsible for the
attack. The Board notes the police did not fail the applicant and his partner.
The Board concluded the applicant had an obligation to follow up with police
after the report was taken to see if additional information was required. The applicant
went to the police for a follow-up to the investigation on the attack
approximately five months later in July 2006. At this time, the applicant
learned that the police had closed the case because they did not have enough
evidence to find the attackers.
[14]
The
Board cited documentary evidence such as Response to Information Request
UKR102897E dated August 25, 2008 and found there was insufficient evidence that
the police would not have offered protection by charging the individuals with
the appropriate criminal charge if there was evidence to do so.
[15]
In
the case at bar, the applicant sought state protection from the police and the Board
found the police responded appropriately. The police did not refuse to take a
report but had insufficient evidence to make arrests. The Board notes the
protection from the state need not be perfect, nor can a state protect its
citizens at all times (Canada (Minister of Employment and Immigration) v.
Villafranca, (1992), 150 N.R. 232, 37 A.C.W.S. (3d) 1259 (F.C.A.)). The Board
found there is not a serious possibility or reasonable chance the applicant
would face persecution for a Convention ground if he returns to Ukraine.
Issues
As per the
hearing, the only issue to be addressed by the Court is whether the Board erred
in its finding on state protection?
Analysis
[16]
In
light of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
par. 55, 57, 62 and 64, the Board’s conclusions on state protection are subject
to review under the reasonableness standard (Hinzman v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 171, 362 N.R. 1 at par. 38; Huerta
v. Canada (Minister of Citizenship and Immigration), 2008 FC 721, 167
A.C.W.S. (3d) 968 at par. 14; Chagoya v. Canada (Minister of Citizenship and
Immigration), 2008 FC 721, [2008] A.C.F. no 908 (QL)). The factors to be
considered are justification, transparency and intelligibility within the
decision-making process and the outcome must be defensible in respect of the
facts and the law (Dunsmuir at par. 47).
[17]
The
onus is on the applicant to rebut the presumption of state protection (Sanchez
v. Canada (Minister of Citizenship and Immigration), 2008 FC 134, 165
A.C.W.S. (3d) 336) and in order to rebut this presumption, the applicant must
adduce reliable, relevant and convincing evidence which demonstrates, on a
balance of probabilities, that state protection is inadequate (Carrillo).
[18]
In
N.K. v. Canada (Minister of Citizenship and Immigration), (1996), 206
N.R. 272, 68 A.C.W.S. (3d) 334 (Kadenko), the Federal Court of Appeal
noted that an applicant cannot automatically conclude that a democratic state
is unable to protect one of its citizens because a police officer refused to
intervene. In the case at bar, the evidence shows that the applicant diligently
sought to obtain protection from his country before coming to Canada and he has
provided clear and convincing evidence to rebut the presumption that the state
of Ukraine was able to protect him.
[19]
The
Board found that if the applicant had other information or evidence to contribute
to the investigation, it was his responsibility to contact the police with this
information. The police did not communicate with the applicant because they had
not obtained any further information on the incident on their end and they
ultimately decided to close the applicant’s case. The Board concluded the
police had not refused to protect the applicant, but they simply had
insufficient evidence to arrest his attackers.
[20]
However,
in the transcript of the hearing before the Board (at page 185 of the Tribunal
Record), the applicant explains to the Board member that he was able to find
the address of his attackers with the assistance of his partner’s parents. The applicant
explained that this information was provided to the police. However, despite obtaining
this information, it seems that the investigation into the attack was not
pursued further. The transcript confirms that the Board barely discussed this
important information with the applicant, nor did the Board question the applicant
about any further actions taken by the police after obtaining this address.
[21]
The
Court notes that the Board did not make any adverse credibility findings
regarding the applicant. This information provided at the hearing should have
been further investigated. In its reasons, the Board did not explain why it
accepted the fact that the police had closed the applicant’s case when there was
additional evidence available to continue with the investigation, i.e. the address
of the attackers.
[22]
The
Court accepts there is a presumption that the Board has considered all the
evidence before it. However, when there is relevant evidence which runs
contrary to the Board’s findings on the central issue, in this case the
availability of state protection, the Board has the duty to analyze that
evidence and to explain why it does not accept it or prefers other evidence on
that point (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 at par. 14-17).
In the case at bar, the Board should have explained why the applicant’s
evidence contained in his Personal Information Form (PIF) and testimony at the
hearing were omitted.
[23]
Furthermore,
the Court notes that the Board failed to consider the applicant’s allegations
that the police officers became disinterested, unfriendly and hostile when they
learned he was a homosexual. Indeed, when the applicant went to the police
station to follow up on the first attack in July 2006, he was told by a police
officer that if he reconsidered his “way of life”, people would treat him
differently. These crucial allegations should have been considered and
discussed by the Board, as the Board must provide reasons to explain why
evidence is deemed neither relevant nor reliable (Simpson v. Canada
(Minister of Citizenship and Immigration), 2006 FC 970, 150 A.C.W.S. (3d)
457 at par. 44; Salguero v. Canada (Minister of Citizenship and Immigration),
2009 FC 486, [2009] F.C.J. No. 594 (QL)).
[24]
The
Board also erred in assessing the applicant’s case because the Board did not
consider another attack on the applicant in September 2006. In his narrative,
contained in his PIF (at pages 20-21 of the Tribunal Record), the applicant
describes this attack, which happened on September 2006. The applicant
explained that when he was going home around 9:00 p.m., he was attacked by
three men near his house. Luckily, the attackers fled when a group of passer-by
arrived and called an ambulance. The applicant was hospitalized for two days
and he was diagnosed with multiple contusions, a dislocated right arm and two
fractured ribs. The doctors called the police who again visited the applicant
in the hospital, but the applicant submits the police seemed disinterested
after hearing the attack was premised on the applicant’s sexual orientation. This
second attack was not mentioned at all during the applicant’s oral hearing or
in the Board’s reasons.
[25]
The
Board ignored evidence on facts at the heart of the applicant’s claim, as this
evidence of a second attack is most important to rebut the Board’s finding on
the availability of state protection in the case at bar. This omission is fatal
to the Board’s decision (Gill v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 656, 129 A.C.W.S. (3d) 783 at
par. 17). The lack of assistance and interest by the police and the fact that the
applicant was not the victim of a single, random attack, illustrate, in this
case, the lack of state protection available to him in Ukraine.
[26]
The
Court finds the Board’s decision unreasonable. The Board did not conduct a full
assessment of the evidence, including the applicant’s testimony and the
totality of the documentary evidence on file. The evidence shows the applicant
did seek other means of state protection and he demonstrated, from the police
officer’s comments and the lack of follow-up after the second attack, that
state protection was not reasonably forthcoming in Ukraine. The
decision was not reasonable in the circumstances and the Court’s intervention
is justified. The application for judicial review is therefore allowed.
[27]
No
question was proposed for certification and there is none in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed. The decision is set aside and sent
back to the Immigration Refugee Board to be heard by a different member. No
question is certified.
“Richard
Boivin”
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