Date: 20100308
Docket: IMM-5479-08
Citation: 2010 FC 264
Ottawa, Ontario, March 8,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
VASYL
VELYCHKO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision (the decision) of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated November 13, 2008. The Board determined that the Applicant is neither a Convention
refugee nor a person in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, R.S. 2001, c. 27.
[2]
For
the reasons set out below, the application is dismissed.
I. Background
[3]
The
Applicant is a married 49 year old male citizen of the Ukraine. His wife
and children remain in the Ukraine and are not parties to
this application.
[4]
The
Applicant claims that he is at risk from extortionists in the Ukraine. He claims
that he owned and operated a kiosk that sold various goods. In 2000, two
unknown extortionists began to demand payments. When he could no longer pay,
the extortionists attacked the Applicant in his home, after which he went to
the hospital. The police took a report when he was in the hospital. The Applicant
alleges that after the police took his report, his kiosk was set on fire, he
was hit by a car, and received threatening calls, all by the extortionists. The
Applicant stated he did not contact the police for any of these events as the
police and extortionists were working together and that there was evidence that
the Ukraine is a corrupt
society.
[5]
In
the decision, the Board found that there was no nexus between the Applicant and
a Convention ground as vendettas cannot be a ground for Convention refugee
status. Next, the Board held that the Applicant was not a person in need of
protection as it did not find the Applicant credible, that he had failed to
rebut the presumption of state protection, and that the Applicant had an
Internal Flight Alternative (IFA) to Kiev.
[6]
The
Board did not find the Applicant credible based on inconsistencies between the
evidence, specifically a medical report and a tax certificate.
[7]
The
Board then stated that the Applicant had not rebutted the presumption of state
protection. Relying on the documentary evidence, the Board found that the Ukraine was able to
provide state protection, albeit not perfect protection, and that the Applicant
must first seek protection from his own country. The Board did not find the
Applicant’s reasons for not contacting the police a second time rebutted the presumption
of state protection.
[8]
Finally,
the Board held that the Applicant had an IFA to Kiev as there is
no central registry in the Ukraine, even if people must
register locally.
II. Standard
of Review
[9]
The
issues in this matter are credibility, state protection, and an IFA. They will
be assessed on a standard of reasonableness (see Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1
S.C.R. 339). As set out in Dunsmuir and Khosa, reasonableness
requires the existence of justification, transparency, and intelligibility in
the decision-making process. It is also concerned with whether the decision
falls within a range of acceptable outcomes that are defensible in respect of
the facts and law.
[10]
The
Court is to demonstrate significant deference to Board decisions with regard to
issues of credibility and the assessment of evidence (see Camara v. Canada
(Minister of Citizenship and Immigration), 2008 FC 362; [2008] F.C.J. No.
442 at paragraph 12).
III. Issues
[11]
In
his application, the Applicant raised three issues:
a) that the Board erred in finding that
there was no nexus between his claim and an enumerated ground;
b) that
the Board erred when it found he had not rebutted the presumption of state
protection as its analysis of the country condition documents was unreasonable,
and
c) that
the Board’s IFA findings were unreasonable.
A. Did
the Board Err in Finding That There Was No Nexus Between the Applicant’s Claim and
an Enumerated Ground?
[12]
The
Applicant submits that the Board erred when it determined that no nexus existed
between the Applicant’s situation and Convention refugee grounds. The Applicant
argues that the Board relied on selective portions of the documentary evidence
which supported its view of organized crime in the Ukraine, while
ignoring parts which contradicted this view.
[13]
It
is the Respondent’s position that the Convention only protects individuals with
a reasonable fear of persecution due to their religion, race, nationality,
political opinion and membership in a particular social group.
[14]
It
is clear that victims of crime are not protected by the Convention (see Bencic
v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 623, 2002 FCT 476, at
paragraph 17). The Applicant cited Vassiliev v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 955; 72 A.C.W.S. (3d)
900, at paragraph 13 to support his position that there was a nexus between his
claim and an enumerated ground. However, in Vassiliev, the Court held
that there was no distinction between the criminal and ideological/political
aspects of the claimant’s fear of persecution and that the Applicant’s refusal
to participate in a corrupt system was an expression of political opinion.
[15]
There
are no such connections in this matter. While the Applicant argues at paragraph
11 of his Memorandum of Fact and Law that his “refusal to cooperate with the
mafia because of his personal moral convictions would be considered a political
statement”, he has provided no evidence of the extortionists’ identity or if
they were linked with any government organization. Refusal to bow to extortion,
threats, and violence due to his status as a business owner does not qualify
him as a refugee under the Convention. The decision was reasonable.
B Did
the Board Err When It Found That the Applicant Had Not Rebutted the Presumption
of State Protection As Its Analysis of the Country Conditions was Unreasonable?
[16]
The
Applicant argues that the Board erred by ignoring documents that suggest
corruption persists in the Ukraine. He takes the position
that the Board erred in considering that the state must actually provide
protection and not merely indicate a willingness to help. While the Applicant
acknowledged that the Board is presumed to have considered all the evidence
before it (see paragraph 11 of the Applicant’s Further Memorandum of Fact and
Law), he argues that the Board erred by not explaining why they preferred some
evidence over other evidence which ran contrary to the Board’s findings on the
central issue of state protection.
[17]
Finally,
the Applicant argues that the Board erred when it held that it was not
objectively reasonable for the Applicant to conclude that no state protection
would be forthcoming.
[18]
The
Respondent takes the position that the Board reasonably found that the
Applicant should have taken further steps to obtain protection in the Ukraine
and that the Board is entitled to give some documents more weight than others.
(1) The
Presumption of State Protection
[19]
Refugee
protection is meant to be a form of surrogate protection to be invoked only in
those situations where the refugee claimant has unsuccessfully sought the
protection of his or her home state (see Canada (Attorney General) v. Ward,
[1993] 2 S.C.R. 689; [1993] S.C.J. No. 74; Hinzman v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 584;
2007 FCA 171).
[20]
In
Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94; 69 Imm. L.R. (3d) 309, the
Federal Court of Appeal found that the Applicant had not rebutted the
presumption of state protection. The Court held that even though the claimant
had sought police protection once, she had not made additional efforts to seek
state protection from higher authorities when the local police did not provide
protection (see paragraphs 31-36).
[21]
In
Szucs v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1614; 100 A.C.W.S. (3d) 650, the Applicant claimed he did not report
two incidents of persecution to the police because he did not think it would
help his situation. In his reasons, Justice Pierre Blais held the Board may
examine all reasonable steps taken to seek state protection.
[22]
In
this case, the police took a report after the first assault but the Applicant
did not contact them thereafter. The Board found that the Applicant’s reasons
for not contacting the police or seeking protection from higher authorities did
not rebut the presumption.
[23]
A
claimant seeking to rebut the presumption of state protection must adduce
relevant, reliable and convincing evidence which satisfies the trier of fact on
a balance of probabilities that the state protection is inadequate (Carillo,
above, paragraph 30). In this case, the Applicant did not discharge his burden
and the Board’s decision was reasonable.
[24]
In
his Further Memorandum of Fact and Law, the Applicant took the position that he
does not have to seek state protection when it is objectively reasonable to
presume it would not be forthcoming (see L.A.O. v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1057; [2009] F.C.J. No. 1295). At
paragraphs 22-23 of L.A.O., Justice Russell Zinn wrote:
[22] An applicant does
not have to seek state protection where it is objectively reasonable to presume
that state protection would not be forthcoming. "[O]nly in situations in
which state protection 'might reasonably have been forthcoming', will
the claimant's failure to approach the state for protection defeat his
claim" [Emphasis added]: Ward at 724.
[23] In Ward, at 724-725,
Justice LaForest described two types of evidence that an applicant could
provide to rebut the presumption of state protection: (1) evidence of the
claimant's actual attempts to seek state protection that resulted in no
protection, and (2) evidence of similarly situated individuals who were unable
to obtain state protection. He did not intend that these examples be
exhaustive; however, they do reflect the most common types of evidence led by
claimants.
[25]
In
this case, the Board rejected the Applicant’s reasons for not contacting police
after he was hospitalized and preferred documentary evidence that demonstrated
that the Ukraine provides
state protection. Therefore, the Board determined that the presumption of state
protection was not rebutted. This was reasonable.
(2)
Discussion
of the Evidence in the Reasons
[26]
The
fact that the Division did not mention each and every one of the documents
entered in evidence before it does not indicate that it did not take them into
account. A tribunal is assumed to have weighed and considered all the evidence
presented to it unless the contrary is shown (see Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)). The Board has
discretion in assessing documentary evidence and is entitled to give some
evidence more weight (see Velinova v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 340; 324 F.T.R.
180).
[27]
In
this case, the Applicant failed to demonstrate that the Board erred in preferring
some evidence over others. The Board stated that they considered all the
evidence but preferred the documentary evidence to that of the claimant because
it was gathered from a number of objective, independent sources with no
interest in the matter. This was sufficient in this case (see Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35; 1998 Can LII 8667).
C. Where
the Board’s IFA Findings Unreasonable?
[28]
As
set out in Irshad v. Canada (Minister of
Citizenship and Immigration), 2005 FC 763; [2005] F.C.J. No. 941 at
paragraph 21, the concept of an IFA is an inherent part of the Convention
refugee definition. In order to be considered a Convention refugee, an
individual must be a refugee from a country, not from a region of a country. Therefore,
where an IFA is found a claimant is not a refugee or a person in need of
protection (see Sarker v. Canada (Minister of
Citizenship and Immigration), 2005 FC 353; [2005] F.C.J. No. 435).
[29]
In
this case, the Board found that the Applicant had an IFA to Kiev, noting that
there was no central registry in the Ukraine and therefore it would
be difficult for the extortionists to locate him there. This was reasonable.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. this application for judicial
review is dismissed; and
2. there is no order as to costs.
“ D.
G. Near ”
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