Date: 20101015
Docket: IMM-6608-09
Citation: 2010 FC 1013
Ottawa, Ontario,
October 15, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ELENA YURIEVNA KOZYREVA
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, of a decision to deny the
applicant’s Pre-Removal Risk Assessment (PRRA) application.
[2]
I am
not persuaded that the PRRA officer made the errors alleged by the applicant
and for the reasons that follow this application is dismissed.
Background
[3]
Ms.
Kozyreva is a citizen of Russia. She came to Canada on a temporary resident visa
on May 5, 2006. The visa expired on November 5, 2006. She had a whirlwind
relationship with Eduard Baraban, a Canadian citizen. They met on July, 1,
2006, began living together on September 1, 2006, and married on October 27,
2006.
[4]
In January
2007, Ms. Kozyreva applied for an extension of her temporary resident visa and
her husband filed a spousal sponsorship application. When they attended an
interview on February 28, 2008 with respect to the sponsorship application, the
applicant was seven months pregnant. The officer was apparently satisfied that
the marriage was bona fide; however, it was noted that Mr. Baraban was
in default under a previous sponsorship application he had filed with respect
to his first wife. The first Mrs. Baraban attacked Mr. Baraban with a knife
shortly after she arrived in Canada as a sponsored spouse. She
was charged with a criminal offence but it was dropped when it was determined
that she suffered from mental health issues.
[5]
In order
to be able to sponsor the applicant, Mr. Baraban collected the funds he thought
were necessary to pay back the social assistance monies his first wife had
received from 2001 to 2004. However, he later learned that a further sum of
nearly $35,000 was still outstanding.
[6]
Subsequently,
the applicant was removed from Canada with her son, who had been
born on April 3, 2008. However, because her son did not have the necessary
visa, they were turned back at Amsterdam, Holland, and were returned
to Canada. The applicant filed a PRRA
application on August 26, 2008, claiming that she feared that if she returned
to Russia she would be harmed by her
former boyfriend.
[7]
Before the
applicant came to Canada, an ex-boyfriend had
threatened to kill her, and said that if she ever returned to Russia he would drown her.
According to the applicant, he has used different names and has connections
both with criminals and with the Russian police. He is 17 years older than she
and has beat her many times. Ms. Kozyreva says that she did not report the
beatings to police because it would have been hard to prove her allegations of
abuse and because her ex-boyfriend had connections with the police and was
rich. Furthermore, the applicant’s ex-boyfriend told her that any jail
sentence would not be long because of his mental instability.
[8]
The PRRA
officer noted that the applicant never made a refugee claim. In rejecting the
PRRA application, the officer considered that the applicant is no longer in a
relationship with her former boyfriend and determined that there was
insufficient objective evidence that the former boyfriend would still have any
interest in her. Considering that the applicant is in a new relationship and
has a son, the officer was not satisfied that the authorities would not take
action on violence perpetrated against the applicant.
[9]
The officer
found that even if the applicant were threatened by her former boyfriend, there
was adequate state protection available for her in Russia and that state protection was the
determinative issue in the applicant’s case.
[10]
The officer
acknowledged that domestic violence is a major problem in Russia but noted that its law
prohibits battery, assault, threats and murder. The officer noted that victims
of domestic violence must prosecute cases themselves, and found that while some
sources indicate police discourage victims from filing complaints, there was
insufficient evidence to find that they are prohibited from doing so. It was also
noted that some reports have indicated improvements in cities where organizations
have worked with police to support victims of domestic violence.
[11]
The officer
noted that while the remedies available to domestic violence victims in Russia
may not be equal to those offered in Canada,
refugee protection is not meant to permit a claimant to seek better protection
abroad than he or she would receive at home.
[12]
The officer
ultimately determined that the applicant had not provided sufficient objective
documentary evidence to support her assertions and had not provided an objectively
identifiable reason for not seeking protection in Russia. Accordingly, the officer determined
that the applicant did not qualify for protection under either s. 96 or s. 97
of the Act.
Issues
[13]
The
applicant raises the following issues:
1.
Whether
the officer erred by finding that the applicant had not discharged her onus in
rebutting the presumption of state protection with clear and convincing
evidence; and
2.
Whether
the officer erred by finding that because the applicant is in a new
relationship and has a son that her former boyfriend in Russia would no longer pose a
threat to her.
Analysis
State Protection Analysis
[14]
I find
that the officer’s finding that Ms. Kozyreva had failed to provide clear and
convincing evidence to rebut the presumption of state protection was reasonable
based on the material before the officer.
[15]
Contrary
to the applicant’s submissions, the officer did not ignore portions of the
documentation supporting the applicant’s position. The officer stated that
domestic violence was a “major problem,” that “[v]ictims of domestic violence
must prosecute cases themselves” and that the evidence indicated that “police discourages
(sic) victims from filing complaints.”
[16]
The
applicant mischaracterizes these findings by suggesting that the officer concluded
that state protection is available because victims of domestic violence are not
prohibited from filing complaints. Although the latter part of this observation
was made by the officer, it was not the only reason for the finding that state
protection was available. Rather, the officer considered the evidence as a
whole and determined that the applicant had not provided clear and convincing
evidence of an absence of state protection.
[17]
I reject
the applicant’s submission that the officer did not consider the implications
of the applicant’s statement that her ex-boyfriend had connections to the
police and criminals. The officer specifically acknowledges her statement that
her ex-boyfriend has connections to police and criminals, and goes on to observe
that “local failures by the authorities to provide protection do not mean that
the state as a whole fails to protects its citizens …” While perhaps the officer
could have been more fulsome in addressing this issue, I cannot agree that on a
reading of the decision as a whole this renders the officer’s finding regarding
state protection unreasonable.
The Threat Posed by the Former
Boyfriend
[18]
The
applicant submits that she has presented compelling reasons for why she refused
to avail herself of the state protection, and that accordingly s. 108(4) of the
Act operates to render irrelevant the fact that her former boyfriend may not
currently have any interest in her. The relevant provisions of the Act read as
follows:
|
108.
(1) A claim for refugee protection shall be rejected, and a person is not a
Convention refugee or a person in need of protection, in any of the following
circumstances:
...
(e)
the reasons for which the person sought refugee protection have ceased to
exist.
...
(4)
Paragraph (1)(e) does not apply to a person who establishes that there are
compelling reasons arising out of previous persecution, torture, treatment or
punishment for refusing to avail themselves of the protection of the country
which they left, or outside of which they remained, due to such previous
persecution, torture, treatment or punishment.
|
108.
(1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié
ou de personne à protéger dans tel des cas suivants :
…
e)
les raisons qui lui ont fait demander l’asile n’existent plus.
…
(4)
L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons
impérieuses, tenant à des persécutions, à la torture ou à des traitements ou
peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a
quitté ou hors duquel il est demeuré.
|
[19]
I agree with
the respondent that jurisprudence makes it clear that before an officer may
embark on a s. 108(4) analysis there must first be a finding that there was a
valid refugee or protected person claim and that the reasons for the claim have
ceased to exist due to changed country conditions: Brovina v. Canada (Minister of Citizenship
and Immigration),
2004 FC 635, para. 5. Because state protection was found to exist, Ms. Kozyreva
is not a refugee or person in need of protection and the compelling reasons
analysis under s. 108(4) is not warranted.
[20]
I further
find that the officer’s conclusion that there was insufficient evidence to
support the assertion that the former boyfriend would be interested in pursuing
the applicant if she were to return to Russia was fair and reasonable on the evidence
that was put before the officer.
[21]
As much as
one may sympathize with the plight of the applicant and her new Canadian family,
this Court cannot upset the decision of the officer as it was reasonable based
on the facts and evidence that were before her.
[22]
Neither
party proposed a question for certification; there is none.
JUDGMENT
THIS COURT ORDERS that this application for judicial review is dismissed
and no question is certified.
“Russel W. Zinn”
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