Docket: IMM-4929-11
Citation: 2012 FC 142
Ottawa, Ontario, February 3,
2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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OLGA KHABIBULINA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant is a 21 year old citizen of Ukraine and is ethnically Roma.
She challenges the legality of a decision rendered by the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dismissing her
asylum claim. The applicant has failed to convince the Court that the negative
credibility findings made by the Board, and its conclusion that there is no
personalized risk in case of return to Ukraine, are
unreasonable.
[2]
The
applicant alleges to have been the victim of persecution as a Roma in Ukraine. She also
claims to fear both Ukrainians and Roma due to her marriage to a non-Roma. She
alleges that she was verbally mistreated by fellow students and teachers
including into college and university where she attained a degree. This
harassment included verbal and minor physical abuse. The applicant states that
in April 2008, when she resided with her parents, drunken neighbours broke into
their apartment accusing her mother of stealing from them the night before when
her mother had visited them as a fortune teller. The neighbours demanded that
her family leave the area and attacked them with a knife. The attack put her
father in the hospital for a month and he lost the use of his left arm. The
applicant’s mother complained to the police but they did not investigate the
incident.
[3]
The
applicant met her husband, who is of half-Ukrainian and half-Tatar descent, and
the two married in August of 2008. After the latter moved into the family’s apartment,
the family began to receive threats from both Roma and Ukrainians. The
applicant alleges that on October 18, 2009, three Ukrainian neighbours broke
into their apartment with knives, metal rods and chains and told the family to
move out of the area. Her husband was cut on his arm and the applicant was
pushed out the window of their ground-floor apartment. Both received medical
attention. At the time of the attack, the applicant was pregnant and
miscarried. The police were contacted but did not arrest any individuals and
suggested that it would be best for the family to leave the area. The following
month, the windows of the apartment were smashed in the middle of the night and
a graffiti painted on the door threatened the family with death if they did not
move.
[4]
In
March 2010, the applicant and her husband moved into a dormitory in Kyiv, Ukraine, but the
other residents soon discovered that she was Roma and forced them to leave. The
pair received forged Israeli passports and arrived in Canada on March 30,
2010. They claimed refugee protection in April 2010. The applicant is currently
separated from her husband and has not communicated with him since he decided
to return to Ukraine in
late-September or early-October 2010.
[5]
The
Board found that the applicant’s story was not credible, primarily because
there was no corroborating documentary evidence provided and because the most
serious incidents were not mentioned in her point of entry (POE) document or
her original Personal Information Form (PIF) narrative. The Board noted that
the PIF narrative as submitted on May 13, 2010 made no mention of the events
that took place in April 2008 or on October 18, 2009, which were only mentioned
in the amended narrative submitted in September 2010. The Board also found that
although the documentary evidence indicates that there is some discrimination
against Roma in education, the applicant was able to complete her schooling,
college and university and her experiences did not cumulatively amount to
persecution. Moreover, the Board concluded that the applicant’s fear of
persecution from other Roma was not reasonable since she does not have a
continuing relationship with her husband and no evidence was submitted to
demonstrate that Roma may harm those who marry outside of their ethnicity.
Are the
Board’s conclusions regarding credibility unreasonable?
[6]
The
Board’s findings on credibility rest on a lack of documentary evidence and the
applicant’s failure to mention the incidents alleged in her original PIF
narrative. The Board’s reliance on these grounds is, in the Court’s view,
reasonable in the circumstances.
[7]
The
applicant’s POE application and original PIF narrative do not mention the
culminating incidents of April 2008 or October 2009. However, the applicant
argues that it is the applicant’s right to submit amendments to her original
documents and that this fact should not be used against her in following
proceedings. The applicant submits that she failed to include major segments of
her story in her original PIF due to her distress at the time.
[8]
At
the hearing before the tribunal, the applicant and her counsel explained that
the amended PIF narrative did not contradict the original PIF narrative but only
expanded upon it. The applicant’s counsel explained that they had met in June
2010 to discuss amending the PIF and mentioned that the further delay in
submitting the amendment was due to a lack of urgency. This explanation was
considered and rejected by the Board who noted that the same counsel was
engaged as the counsel of record at the time the original PIF was submitted.
The Board also pointed out that the counsel’s representative had translated the
documents, the applicant had declared that the information provided was
complete, true and correct, and there was no mention that a more detailed
narrative would be forthcoming. This conclusion is not unreasonable in the
Court’s opinion.
[9]
Furthermore,
the applicant argues that the Board erred in requiring corroborative evidence
and in dismissing the applicant’s explanations. However, as stated in Castrañeda
v Canada (Citizenship and Immigration), 2010 FC 393 at para 18, “…the panel
may make adverse findings based on the fact that applicants failed to produce
evidence corroborating their testimony or make any efforts to obtain such
corroborating documentation”. The fact that the applicant was only 18 years old
when she left Ukraine does not
allow the Court to re-evaluate the evidence. Indeed, the Board considered the
applicant’s explanation for not having any documentation supporting her claim
that her father was injured in the April 2008 attack and was receiving a
pension as a result. The Board then found, reasonably, that a document from the
hospital did exist and although the original was needed by her father to
collect a pension, a copy of the report could have been provided by the
applicant. This conclusion is reasonable in the Court’s opinion.
[10]
It
should be reminded that, as mentioned by the Supreme Court of Canada, “the
existence of justification, transparency and intelligibility within the
decision-making process” and “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, 2008 SCC 9 at para 47). I am of the opinion that the
above mentioned findings of fact were well within the range of possible and
acceptable outcomes that the Board could reasonably reach.
Did the
Board err by finding that the applicant lacked an objective fear of
persecution?
[11]
Besides
the negative credibility finding, the Board also found that the applicant’s
fear was not objectively founded based on the problems she had during her
education, her treatment by other Roma, and her treatment by Ukrainians. The
Board specifically noted at paragraph 9 of the decision that “[w]hile there may
be some discrimination against Roma at educational institutions, based on the
evidence adduced, the panel does not find that the claimant was persecuted by
her fellow students and the teachers while she was at her educational institutions.”
The Board then found that due to the credibility concerns, the applicant did
not demonstrate and the evidence did not support a finding that she will be
subjected to a personalized risk of persecution.
[12]
The
applicant argues notably that the Board erred in fact by coming to the
conclusion that the treatment received by her during her schooling did not
amount to persecution, and in finding that she was not at risk as a Roma in Ukraine. The
applicant submits that harassment can be physical, verbal or nonverbal and that
the law does not require that persecution be of a physical nature. Several
reports have been submitted by the applicant to demonstrate that Roma are
targeted because of their ethnicity, especially while at educational
institutions. However, these reports were not before the Board and the
applicant has not demonstrated that the Board ignored any relevant evidence
that was made available to it.
[13]
Again,
the applicant simply disagrees with the Board’s weighing of evidence and does
not demonstrate that the Board committed a reviewable error. The Court is
satisfied here that the Board considered the documentary evidence available and
the evidence provided by the applicant and reasonably concluded that the
specific experiences of the applicant did not amount to an objective fear of
persecution. Again, the Board’s final conclusion that the applicant failed to
demonstrate any personalized risk of returning to Ukraine falls well within the
reasonable range of “possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir, above, at para 47).
[14]
For
all these reasons, the present application for judicial review shall be
dismissed. No question of general importance has been proposed by counsel to
the Court.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed. No question is certified.
“Luc
Martineau”
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