Date: 20101021
Docket: IMM-1113-10
Citation: 2010 FC 1030
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, October 21, 2010
PRESENT:
The Honourable Madam Justice Bédard
BETWEEN:
VICTOR
ANDREEVI SHMAGIN
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review under subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA),
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated February 12, 2010, which rejected the
applicant’s claim for refugee protection and declared that he was not a refugee
within the meaning of section 96 of the IRPA or a “person in need of
protection” within the meaning of section 97.
Background
[2]
The
applicant is an 80-year-old Russian citizen. Because of a dispute regarding his
apartment in Moscow, he fears being the victim of violence at the hands of the
son of his former spouse and considers that his life would be in danger if the
returned to Russia.
[3]
The
applicant’s first marriage lasted several years. His daughter, who was born of
this first marriage, is a Canadian citizen. The applicant’s spouse died in
1984. The applicant, who had worked as a chief engineer for the defence
ministry, has visited his daughter and grandchildren in Canada several times since 1996.
[4]
In 1986, the
applicant remarried, and his new wife moved into the apartment in which he had
been living since 1970. The applicant alleges that at one point, his spouse
registered her son as a resident in the apartment without asking the applicant.
In 2005, a new Russian law allowed the applicant to become the owner of his
apartment. Because they were married, his spouse became a co-owner of the
apartment with him. The relationship between the applicant and his spouse took
a turn for the worse following the privatization process of the couple’s
apartment, and the couple divorced on December 22, 2006. Following
the divorce, the applicant continued to cohabit with his former spouse, and
they lived [translation] “like neighbours”.
[5]
In June 2007,
the applicant came to Canada to visit his daughter and see
his grandchildren, in particular his great-grandson, who had been born in
February 2007. The applicant alleges that on February 23, 2008, he called the son of his
former spouse to congratulate him, as it was Army Day in Russia, and to notify
him of his intention to return to Russia.
The son of his former spouse allegedly told him that his apartment did not
belong to him any longer and suggested that he not return. Fearing that he
could be the victim of violence at the hands of the son of his former spouse,
the applicant decided not to return to Russia and claimed refugee protection in Canada.
Impugned decision
[6]
The
Board’s decision was based on two grounds. First, the Board concluded that the
applicant had not submitted any credible or trustworthy evidence in support of his
application. The Board’s conclusion was based on the following points:
- The contradictions between the
information in the applicant’s visa application regarding his marital
status and his divorce certificate;
- The insufficiency of the applicant’s
explanations regarding his visa’s validity period;
- The applicant’s failure to include
in his personal information form (PIF) the allegation he made at the
hearing to the effect that the son of his former spouse had “influence”
with the authorities, so he was unable to approach them for help after his
conversation with the son-in-law in February 2008.
[7]
The Board
also concluded that the applicant’s behaviour was inconsistent with a fear of
persecution.
[8]
In
addition, the Board concluded that the applicant had not rebutted the
presumption of State protection. In this regard, the Board found that the
applicant’s allusion in his testimony to the alleged influence of the son of
his former spouse was insufficient to rebut the presumption.
Issues
[9]
The
applicant criticises the Board’s decision, which raises the following issues:
a. Did the Board err in its
assessment of the evidence and the applicant’s credibility?
b. Did the Board err in
concluding that the applicant had not rebutted the presumption of State
protection?
[10]
The
respondent in turn argues that the applicant has not challenged the Board’s
conclusion regarding the applicant’s subjective fear and that this omission in
itself warrants the dismissal of the application for judicial review.
Analysis
[11]
It is trite law that the Board’s findings of fact, especially its assessment
of the evidence and of the applicant’s credibility, are subject to the standard
of reasonableness. It is not up to the Court to substitute its own assessment
of the evidence for the Board’s, and it will intervene only if the Board’s
conclusions are made in a perverse or capricious manner or without regard for
the material before it (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
SCR 190; Canada
(Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 SCR 339;
Martinez v. Canada (Citizenship and Immigration),
2009 FC 798, [2009] F.C.J. No. 933; Alinagogo
v. Canada (Citizenship and
Immigration), 2010 FC 545, [2010]
F.C.J. No. 649). The role of the Court when it reviews a decision
according to the standard or reasonableness was established in Dunsmuir,
at paragraph 47:
. . . A court conducting a review for reasonableness inquires into the qualities
that make a decision reasonable, referring both to the process of articulating
the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[12]
It is also
well established that issues regarding the adequacy of State protection are
questions of mixed law and fact, which are also subject to the standard of
reasonableness (Hinzman v. Canada (Minister of Citizenship and Immigration),
2007 FCA 171, [2007] F.C.J. No. 584; Rocque v. Canada (Citizenship
and Immigration), 2010 FC 802, [2010] F.C.J. No. 983).
[13]
For the
following reasons, I find that the Board’s conclusions are reasonable and do
not warrant the Court’s intervention.
a. Did the Board err in its
assessment of the evidence and the applicant’s credibility?
[14]
The
applicant basically criticizes the Board for having focused on inconsistencies
and discrepancies concerning incidental and technical questions rather than on the
essential elements of his claim. Counswl for the applicant also submits that
the Board did not take Guideline 8 into account (Guideline on Procedures
with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee
Board of Canada) and should have considered the applicant’s age and
vulnerability and shown him some leniency when he gave explanations about the
duration of the validity period of his visa. With respect, I do not agree with
the applicant’s opinion.
[15]
First, I have
read the transcript of the hearing before the Board, the Board’s record and the
applicant’s PIF very carefully. There is nothing that would indicate that the
applicant was confused and stressed when he testified, that he was vulnerable
or that his age affected his ability to testify or the quality of his testimony
such that the Board should have shown leniency or compassion for him. Likewise,
the evidence does not show that the applicant was in a vulnerable state when he
completed his visa application in March 2007. In any event, there is nothing
to suggest that the Member was not lenient or compassionate toward the
applicant. Finally, the applicant’s supposed vulnerability was never raised at
the hearing to justify the taking of special measures.
[16]
It is not
enough to raise the applicant’s vulnerability after the fact, and age is not in
itself a sufficient ground for concluding that the applicant was vulnerable and
that this vulnerability should be considered in assessing his testimony or his
behaviour.
[17]
The
contradictions noted by the Board are consistent with the evidence.
[18]
There is
no doubt that there is a contradiction regarding the applicant’s marital
status. In the visa application he submitted in February 2007, he stated that
he was married and had one child. In his testimony, he stated that he had been divorced
since December 22, 2006. The divorce decree is to the same effect. The
explanations the applicant gave to the Board regarding this contradiction were
vague and not specific (he originally said that he might have made an error out
of habit, later claimed he no longer remembered and finally stated that he
completed his application in December 2006). I find that it was not
unreasonable for the Board to draw a negative inference about the applicant’s
credibility from this contradiction and that in this case it was not an
incidental and unimportant factor.
[19]
It is also
true that the applicant failed to state in his PIF that the son of his former
spouse had a “certain level of influence” over the authorities, whereas this
was the explanation he gave for not going to the authorities. This was
important, and it was not unreasonable for the Board to draw a negative
inference from this omission.
[20]
The
Board’s finding regarding the vagueness of the applicant’s explanations about
the validity period of his visa also seems to me to be reasonable. The
applicant originally stated that he had a one-year visa. When questioned by the
Member, he then stated that it was his daughter who had applied to renew his
visa.
[21]
The Board
also concluded that the applicant’s behaviour was inconsistent with his alleged
fear. The Board held that the fact the applicant had continued to live with his
former spouse following his divorce and that he had left Russia in June even though his visa had
been valid since March 2007 was inconsistent with his allegation that his
life had been a nightmare since 2005. The Board also noted that the applicant
had stated that he wanted to remain in Canada until his grandson’s birthday on February 2, 2008, but at the end of the month
he still had not taken steps to leave the country.
[22]
Taken in
isolation, these factors are perhaps inconclusive, but when considered together
with other factors and the contradictions in the evidence, it was not
unreasonable for the Board to find that this showed a lack of fear on the applicant’s
part.
[23]
I
therefore find that the Board’s analysis of the evidence was reasonable, that
its finding regarding the applicant’s credibility was based on the evidence,
that the contradictions and omissions noted did not concern incidental or
accessory factors and that its conclusion is within the range of possible
acceptable outcomes which are defensible in respect of the evidence.
[24]
Although
credibility is determinative in this case, I will nevertheless deal with the
Board’s conclusions regarding the applicant’s subjective fear and State
protection.
2) Did the Board err by
concluding that the applicant had not rebutted the presumption of State
protection?
[25]
The Board stated
its conclusion as follows:
[15] Overreaching
all this of course is the issue of State protection. The claimant, who
testified to privatizing his apartment in 2005, alleges that he can no longer
return there because his step-son would have him incarcerated in a psychiatric
institution. Yet the claimant himself admits that after the phone call of
February 23rd, he did not have any contact with anyone in Russia. He made no attempts to either
engage the services of a professional (lawyer) or the authorities to assist him
in this problem.
[16] States
are presumed to be able to protect their own citizens. The burden is thus on
the claimant to demonstrate that State protection would be unavailable or not
forthcoming. The only intimation the claimant makes in his testimony (although
not in his PIF) is the alleged “influence” of his former step-son. In the
panel’s mind, this is not sufficient in order to rebut the presumption. Russia is a democracy with a functioning
judiciary. There are laws and regulations. The claimant produced evidence that
he had title to at least part of this apartment. Thus it would appear that any
presumed or alleged activities of his step-son would he be illegal and in
violation of this contract. The fact that the claimant made absolutely no
attempt to contact any authority in Russia in order to protect his rights shows that he has not demonstrated
with clear and convincing evidence an absence of State protection. He is not a
person in need of protection.
[26]
First, the
Board’s statement of the applicable principles is consistent with the state of
the law (Rocque v. Canada (Citizenship and Immigration), 2010 FC 802, [2010] F.C.J.
No. 983).
Second, I do not think it was unreasonable to conclude that the alleged “influence”
of the ex-spouse’s son was insufficient to reverse the conclusion. The onus was
on the applicant to submit clear and convincing evidence of the State’s inability
to protect him. The evidence submitted by the applicant was clearly
insufficient. First, the applicant’s allegation regarding the influence of the ex-spouse’s
son was made in very general terms:
[translation] A. I called to
notify them that I was coming back, coming home, but he told me that this
apartment, for you, there is nothing. So, his mother was not going to live with
me, and I asked him this question: how come I am registered over there. But he
told me that there was nothing for me over there and suggested that I never
come back.
Q. So what did you do, sir?
. . .
A. So, what did I do? So, I
understood that if, if I went back there I would have no protection there. I
had no more family, no brother, no sister there, so if I went back, you know,
to Moscow, where there are thousands
and thousands of pensioners, retired people who go missing, they are either murdered
or never found again, and all that is just the beginning of the fight for
apartments. So, I did not want to go back and get killed or abused, have a
heart attack, so I knew that I had nothing to gain over there.
– But sir, I, you did not
directly answer my question, which was quite straightforward.
Q. Did you do something, this
gentlemen here has no right to tell you not to come back to your own apartment,
so did you do something, initiate proceedings, contact a lawyer over there, do
something, even from here in Canada?
A. So, I only know his abilities,
what he can do, what my son-in-law is capable of, my spouse’s son, but he
is a , he is connected with the police,
he has close connections with the police. There are lawyers in his company,
therefore I knew that I was not going to gain, would not have gained anything.
I was not going to have justice.
– I do not understand sir.
Q. What did that gentleman have?
A. But you know that he had this quote-unquote
special police protection, and there were policemen in his office who were
armed with rifles but worked there after their shift, so what else do I have to
tell you.
Q. What does this gentleman do?
A. He is an entrepreneur, so he
makes, he is in parts, things, automobile repair. He also has connections in Canada.
. . .
A. I do not know what he would
have done if I had gone back there, do I have, maybe would have had a coronary,
a heart attack, I don’t know. I was neither young enough or strong enough for
that and did not have friends in Moscow
anymore, so, and here I sent documents, so that would simply have gone back to
the police. They would have been returned to the police.
[27]
This
general allegation, together with the applicant’s inaction, does not meet the
test required by the case law.
[28]
The
applicant also criticizes the Board for not having taken into consideration the
documentary evidence which dealt with the corruption of the Russian authorities
or the fact that the applicant had already tried to seek the help of the police
when the son of this former spouse allegedly registered himself illegally as a
resident of his apartment.
[29]
The
documentary evidence to which the applicant refers deals with corruption in
general and not with situations similar to the applicant’s. As regards the
allegation to the effect that the applicant had already allegedly tried to
obtain the help of the police is concerned, it is true that the Board did not
mention it in its decision. However, this allegation, which was made in the PIF,
was never repeated by the applicant in his testimony, and it directly contradicts
that testimony.
[30]
In his PIF,
the applicant stated that his former spouse and her son took over his
apartment, that he had no place to live and that he contacted the local police station,
which allegedly told him they would have to settle their problems themselves. However,
in his testimony, the applicant instead explained that his failure to seek help
from the authorities was due to his step-son’s “influence”. Moreover, at the
hearing, he stated that he and his former spouse had lived together in the
apartment until he left for Canada, which is in complete
contradiction to the statement he made in his PIF.
[31]
I
therefore find that the Board’s conclusion that the applicant did not submit
any evidence rebutting the presumption of State protection was reasonable and does
not warrant the intervention of this Court.
[32]
The
parties did not propose any question for certification, and no question will be
certified.
JUDGMENT
THIS COURT ORDERS that the application for
judicial review be dismissed. No question is certified.
“Marie-Josée Bédard”
Certified
true translation
Michael Palles
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