Date: 20070131
Docket: IMM-1761-06
Citation: 2007 FC 107
Ottawa, Ontario, January 31,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ANASTASIA IOSIFOVNA TRUS
DMITRI ALEXEI TRUS
Applicant(s)
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Anastasia Trus and Dmitri Trus
challenging a negative decision by the Immigration and Refugee Board (Board)
wherein their joint claim to refugee protection under the Immigration
Refugee and Protection Act (IRPA), S.C. 2001, c.27, was denied.
Background
[2]
The
Applicants are Moldovan nationals but of Russian ethnicity. They came to Canada from Moldova in late
2004. Shortly after arriving here they claimed refugee protection based on
allegations of persecution by Moldovan nationalists who wanted to expel Russian
speakers from the country.
[3]
Much
of what the Applicants complained about were instances of discrimination and
insulting behaviour directed at them by ethnic Moldovans. One of the two reported
instances of direct persecutorial conduct identified by Mrs. Trus involved an
assault on the street carried out by two young men when she said she was
punched in the stomach, had paint thrown on her face and told to leave the
country. The other alleged incident was a claim that their apartment had been deliberately
burned in the summer of 2004. This arson fire was corroborated by police
reports but, according to those reports, the identity of those responsible and
their motives could not be ascertained. It was this incident that led the
Applicants to come to Canada to join their son who had been granted refugee
protection after arriving here from Moldova in 2000.
The Board Decision
[4]
The
Board rejected the Applicants’ claims to refugee protection because it found
their testimony to be unreliable and because the Board concluded that they had
failed to rebut the presumption of state protection.
[5]
The
Board’s adverse credibility ruling was based upon a few instances where the Applicants’
evidence was seen to be unreliable. For instance, the Board was concerned about
Mrs. Trus’ testimony as to why they did very little to either follow up their
complaints with the appropriate public authorities or to obtain police reports
to verify the instances of threatening behaviour.
[6]
The
Board also expressed a concern about Mrs. Trus’ failure to confirm in her
initial testimony that the apartment fire had been preceded by a knock on the
door and a threat. The Board found this to be an important element of the
Applicants’ case because it was the only evidence which established a
persecutorial motive for the fire. It also stated that this should have been
both a frightening and memorable experience which Mrs. Trus would have been
unlikely to forget.
[7]
The
Board was also troubled by the inconsistency between the Applicants’ claims of persistent
discrimination and persecution as ethnic Russians and the absence of
documentary evidence to corroborate such conditions in Moldova. The
available country condition reports indicated that ethnic Russians are one of
the largest minority groups in Moldova and that the Russian
language is widely spoken there. The Board relied upon a 2004 United States
Department of State report which noted that Russian is a well-integrated second
language which has constitutional protection as a language of instruction.
That report also stated that Russian speakers were not discriminated against in
the pursuit of educational or employment opportunities.
[8]
In
contrast to the documentary evidence, Mr. Trus testified that, every weekend,
7,000 to 8,000 young people gathered in the city square protesting against
Russians living in Moldova. He went on to say that “the whole 8,000
spread in the city everywhere” screaming “Russia, luggage,
station”. The Board was troubled by the fact that these massive, weekly
protests were not corroborated by press or other third party reports and it,
therefore, found Mr. Trus’ evidence to be implausible.
[9]
The
Board observed, as well, that during Mrs. Trus’ initial refugee examination at
Etobicoke, she did not mention the alleged incident of being assaulted on the
street and spoke only of the apartment fire and an assault upon her son.
[10]
Because
the Board disbelieved the Applicants’ testimony, it gave no weight to the
documents they had tendered to corroborate the injuries suffered by their
Moldovan son and to substantiate their apartment fire. The Board did not say
that these incidents did not occur but only that Mr. and Mrs. Trus had failed
to establish a persecutorial motive.
[11]
The
Board concluded its analysis by rejecting the fundamental premise of the
Applicants’ claim that Russians are subjected to discrimination and persecution
in Moldova.
Issues
[12]
(a) What
is the appropriate standard of review for the issues raised by the Applicants?
(b) Did
the Board commit any reviewable errors in its decision to reject the
Applicants’ claim to protection?
Standard of Review
[13]
Most
of the Applicants’ criticisms of the Board’s decision are directed at its
credibility findings. It is well established that a credibility finding by the
Board can only be set aside if it is found to be patently unreasonable: see Offei
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J.
No. 2000, 2005 FC 1619, especially para. 9, and Crespo v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 849, 2005 FC 672. The
rationale for this heightened level of deference was articulated by the Federal
Court Appeal in the often-cited case of Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315, [1993] F.C.J. No. 732 where Justice Robert Décary stated:
4 There is
no longer any doubt that the Refugee Division, which is a specialized tribunal,
has complete jurisdiction to determine the plausibility of testimony: who is in
a better position than the Refugee Division to gauge the credibility of an
account and to draw the necessary inferences? As long as the inferences drawn
by the tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review.
[14]
On
the issue of state protection, the weight of the authorities indicates a
standard of review of reasonableness, in large measure because the question is
typically one of mixed fact and law: see Chaves v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 232, 2005 FC 193 at
para. 11. The standard may, of course, still vary from case to case based upon
the specific nature of the question raised; however, in this case, I have
concluded that all of the Board’s findings are reasonable and well supported by
the evidence and should not be disturbed.
The Board’s Credibility And
Evidentiary Findings
[15]
It
was argued by the Applicants that the Board’s adverse credibility assessment of
Mrs. Trus was patently unreasonable because it was based on a single incident
of failed memory – that being her inability to recall the threat which preceded
the fire at their apartment. If this was the sole basis for the Board’s
rejection of Mrs. Trus’ testimony, the Applicants’ argument would have
considerable strength. The argument founders, however, because it is quite
obvious that the Board had a number of other credibility concerns which are
well identified in its decision.
[16]
It
is also of some significance that this claimed lapse of memory by Mrs. Trus
went beyond a failure to volunteer evidence of a preceding threat. Mrs. Trus
was specifically asked by the Board if there was any prior warning before the
fire and she responded in the negative. It was only after she was confronted
by the inconsistency that she claimed to have forgotten the prior incident.
The Board’s concern about this evidence was entirely reasonable. It was for
the Board to determine the weight or significance to be given to this evidence in
the overall assessment of Mrs. Trus’ credibility.
[17]
The
Applicants also contended that the Board’s adverse credibility assessment of
Mr. Trus was insufficiently supported because it was based solely on the
absence of independent corroboration of his testimony attesting to massive
weekly protests against Russians living in Moldova. This
argument lacks merit because this was the only evidence offered by Mr. Trus to
the Board. There was simply nothing else available to the Board to support its
credibility assessment of Mr. Trus or which might have shown him in a more
positive light. It was open to Mr. Trus to testify more fully and he cannot
complain if the single piece of evidence he offered was found by the Board to
be implausible.
[18]
The
Applicants’ failure to follow up their complaints with the public authorities
and to obtain comprehensive corroborating documents raised legitimate
credibility concerns for the Board. That is so because the Applicants’
behaviour supported an inference that either the events in question had not
occurred or were not as serious as the Applicants had claimed.
[19]
The
Applicants contend that the Board erred by failing to sufficiently consider the
fact of their son’s successful refugee claim which was based upon allegations
of ethnic persecution in Moldova in the 1990’s.
Although the Board referred to this earlier claim in its decision, it did not
factor into the Board’s analysis. The Applicants say that that omission
constitutes a reviewable error because the Board was required to consider the situation
of a similarly situated individual in assessing their claims.
[20]
It
is clear that the Board was cognisant of the earlier decision concerning the
Applicants’ son. While it would have been preferable for the Board to have
dealt with this evidence as part of its analysis, it was, having regard to its
other findings, under no obligation to do so. The Board simply did not believe
the evidence of Mr. and Mrs. Trus. Whatever may have been the situation of
their son several years before, this evidence would not have rehabilitated
their credibility or righted their testimonial deficiencies. Furthermore, if
this evidence was of the import now attributed to it, it is inexplicable that
their son was not called to testify before the Board. A Board decision in
another case from some 6 years before has only tenuous probative value in an
effort to contradict current country condition evidence. Here I rely upon the
observation made by Justice Sean Harrington in Brown v. Canada (Minister
of Citizenship and Immigration), [2006] F.C.J. No. 1575, 2006 FC 1250 where
he offered a persuasive rationale for affording little weight to previous Board
decisions in similar cases:
[3] …Country conditions, often
compiled from various sources, are, at least to some extent, matters of opinion
in terms of the material included, and in the manner in which they are
presented. Other material may have been omitted or downplayed. The decision of
the Refugee Protection Division of the Immigration and Refugee Board, although
presented as a finding of fact, is also largely a matter of opinion. The Court
must take into account the deference owed the IRB and determine whether that
decision is outside the boundaries set by the pragmatic and functional approach
to judicial review. Myle and Henry are not binding as to what the situation is
in St. Vincent. They are based on the
material in a particular file, including the claimant's own history. As Mr. Justice Shore noted in Myle, each
case turns on its own facts. The Minister argues this point strenuously since
the record in this case as to country conditions is more recent than in Myle
and Henry, and he submits that the situation has greatly improved.
[21]
Here
the Board drew a reasonable inference that, had the situation facing ethnic
Russians in Moldova been as dire
and as persistent as asserted by Mr. and Mrs. Trus, some corroborating evidence
would have been expected from reliable third party sources. Indeed, if 8,000
young people mounted a weekly public protest in one of the cities of Moldova directed at
an ethnic minority, some corroboration ought to have been readily available.
The Board’s plausibility ruling on this issue of a lack of corroborating
evidence is not only reasonable, it is compelling.
[22]
One
of the additional grounds for claiming relief on this application concerns the
treatment of Mrs. Trus’ evidence and, in particular, the Board’s selective
acceptance of portions of her testimony. The Applicants assert that it was
improper for the Board to accept certain parts of that testimony but to reject
other parts. For this they rely upon Huang v. Canada (Minister
of Citizenship and Immigration), [2002] F.C.J. No. 804, 2002 FCT 606. The
principle recognized by Huang, however, is that the Board cannot reject
certain evidence as unreliable but, at the same time, rely upon the same
evidence for some other purpose. This is different from the Board accepting
portions of a witness’ testimony as truthful but rejecting other portions of
the testimony as untrustworthy. There is nothing at all wrong with the latter
approach and, indeed, this is precisely what is expected of the trier-of-fact:
This point is made in Gordon D. Cudmore, Civil Evidence Handbook, (Toronto:
Thomson Canada, 1994) at para. 1.2(b)(ii) in the following passage:
In determining credibility, a trial judge
is free to accept all, part or none of the evidence of any given witness. In
weighing the evidence of any given witness, a trier of fact must use his or her
collective common sense and wisdom.
State Protection
[23]
The
Applicants argued that the Board’s conclusion that they had not rebutted the
presumption of state protection was unreasonable. They say that the Board
placed too much emphasis on their failure to avail themselves of the state
protection services offered by the Ombudsman. They assert that there was no
evidence that the Ombudsman would have provided effective protection. They
also complain that the Board failed to address the evidence of police brutality
and the climate of impunity which protects the police from the consequences of
their own misconduct.
[24]
These
arguments lack merit. It is clear from the record that Mr. and Mrs. Trus did
very little to seek the protection of available state authorities. In Mrs.
Trus’ Personal Information Form (PIF), she claimed that when she complained to
the police about being assaulted on the street, she was told by the officer
“they have nothing to do with it”. However, in her testimony to the Board, she
said she was told by the officer “I will record it [your complaint] and I will
check”. Although nothing apparently came of this complaint, the Board’s conclusion
that the police had “nothing to go on to resolve the situation” is
well-supported by the evidence offered by Mrs. Trus.
[25]
When
the Board asked Mrs. Trus if she had a reason for failing to obtain documents
to corroborate all of her complaints to the police, she responded: “I don’t
know”. When she was asked about her failure to lodge a complaint with the
Ombudsman she said: “We’re old people. We don’t go to places like that”. The
Board’s concern about the adequacy of these responses is well-founded. There
was ample evidence to support the Board’s conclusion that the Applicants had
not sufficiently availed themselves of the state protection options in Moldova.
[26]
The
Applicants complained that the Board needed to have evidence that the office of
the Ombudsman was an effective institution before it questioned their failure
to seek its protection. This argument lacks merit. Mr. and Mrs. Trus did not
offer evidence of a lack of efficacy as a reason for not approaching the
Ombudsman and it was up to them to establish that such a complaint would have
been fruitless. Similarly, their reliance on evidence of police misconduct and
impunity is misplaced. Their claim to protection was based on persecution by
non-state parties and not by the police. Accordingly, the Board did not err by
declining to draw a link between the evidence of police as the agents of
persecution and the issue of their effectiveness in providing protection to
citizens from criminal behaviour.
[27]
It
is clear from the authorities that the burden rested with the Applicants to
establish that the state was unable to protect them. This point was recently
confirmed by Justice James Russell in Dannett v. Canada, [2006] F.C.J.
No. 1701, 2006 FC 1363 at para. 36:
36 The Board analyzed the issue of
state protection having regard to the correct legal principles. In the absence
of evidence of a complete breakdown in the state apparatus, the Applicant had
to provide clear and convincing evidence that the state is unable to protect
her: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R.
(4th) 1. Further, even a democratic government is not expected to be able to protect
all its citizens at all times: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232, 99
D.L.R. (4th) 334 (F.C.A.).
[28]
Here
the evidence offered by Mr. and Mrs. Trus fell far short of meeting the above
standard and the Board’s finding that they had failed to rebut the presumption
of state protection is not only reasonable but virtually unassailable.
[29]
Neither
party proposed a certified question and no issue of general importance arises.
[30]
This
application for judicial review is dismissed.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
"R. L. Barnes"
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