Date: 20080328
Docket: IMM-3058-07
Citation: 2008 FC 403
Ottawa, Ontario, March 28,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
PAWEL PIOTR MUSIALEK
And
KAROLINA POLAK
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pawel
Piotr Musialek and Karolina Polak are citizens of Poland. They claim refugee
protection because they say they have a well-founded fear of persecution at the
hands of Ms. Polak’s father. Ms. Polak says that her mother was, and
continues to be, physically abused by her father. Ms. Polak also says
that, if she returns to Poland, she faces the same
threat because she is in a common-law relationship with Mr. Musialek and
has conceived a child with him outside of marriage. Ms. Polak further
says that her father has threatened “to get even” with Mr. Musialek. Ms. Polak
and Mr. Musialek believe that no protection would be available to them in Poland.
[2]
The
Refugee Protection Division of the Immigration and Refugee Board (Board)
dismissed their claims to refugee protection because it found that they had not
rebutted at the presumption of state protection and that the "compelling
reasons" provision found in subsection 108(4) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), had no application. While not
determinative of its conclusion, the Board also found that the claimants’ delay
in seeking protection showed a lack of subjective fear.
[3]
This
application for judicial review of that decision is dismissed because the
Board’s assessment of the existence of state protection was reasonable and the
Board did not otherwise err.
STANDARD OF REVIEW
[4]
The
two significant issues raised in this application are the Board's conclusions
with respect to state protection and subsection 108(4) of the Act. The parties
did not make detailed submissions with respect to the standard of review.
[5]
Counsel
suggested that the finding of state protection should be reviewed on the
standard of reasonableness. I agree. See: Hinzman v. Canada (Minister of
Citizenship and Immigration) (2007), 362 N.R. 1 at paragraph 38 (F.C.A.),
and Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 55, 57, 62 and 64.
[6]
The
applicants, citing no relevant portion of the Dunsmuir decision but
relying instead upon prior jurisprudence, submitted that the standard of review
applicable to the Board's interpretation of subsection 108(4) of the Act was
correctness. The respondent suggested that Dunsmuir, at paragraph 55,
"opened the door" to the conclusion that the standard of review was
reasonableness. The matter was left for the Court to determine.
[7]
A
contextual analysis that takes into account the presence or absence of a
privative provision, the purpose of the tribunal, the nature of the question at
issue and the expertise of the tribunal may lead to the conclusion that
reasonableness is the proper standard of review. See: Dunsmuir at
paragraph 64.
[8]
However,
in the present case, I am satisfied that the Board's legal interpretation of
subsection 108(4) withstands review on either the reasonableness or correctness
standard. I prefer to leave this issue to be decided on the basis of more
detailed submissions.
THE BOARD’S CONCLUSION WITH RESPECT TO STATE
PROTECTION
[9]
In Canada (Minister of
Citizenship and Immigration) v. Flores Carrillo, 2008 FCA 94, the
Federal Court of Appeal recently restated the relevant legal principles. At
paragraph 30, the Court of Appeal wrote that 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
state protection is inadequate.
[10]
A review of the
transcript of the hearing shows that Ms. Polak testified that:
·
her
mother called the police on several occasions;
·
when
her mother called police, they would come and, in most cases, try to calm her
father down;
·
on
one occasion, the police arrested her father and released him after 24 hours;
·
she
did not know how many times her mother called police, but perhaps five or ten
times;
·
she
never called police to complain about her father; and
·
she
did not go to the police because she believed it would not help much and might
put her mother in more danger.
[11]
The
Board found that Ms. Polak had never approached police to seek protection,
but did take note of Ms. Polak's testimony that she feared contacting
police would only increase the risk to her mother.
[12]
The
Board then reviewed the documentary evidence. It accepted that domestic abuse
of women was a serious problem in Poland and that the responses of police were sometimes
inadequate. However, the Board noted that the documentary evidence indicated
that Poland was making serious
efforts to address the problem. The Board pointed to the criminalization of
domestic violence, the introduction of the “Blue Card System,” and the increase
in police intervention in domestic-related incidents. The Board also noted the
increased awareness in Poland of the issue of
violence against women, which it attributed in part to women’s groups and
non-governmental organizations. The Board found that Ms. Polak failed to
take any steps to obtain protection in Poland before seeking protection in Canada. After noting that
five years had passed since Ms. Polak’s departure from Poland, the Board concluded
that she would be able to access state protection upon her return. The
applicants were found to have failed to rebut the presumption of state
protection.
[13]
In Dunsmuir,
at paragraph 47, the majority of the Supreme Court of Canada instructed that:
Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. 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.
[14]
The reasons of the Board are intelligible, based on the evidence
before it, and adequately justify the Board's conclusion that the applicants
had not rebutted the presumption of state protection. The Board's application
of the law to the evidence before it also leads me to conclude that the Board's
decision falls within the range of acceptable outcomes. It is therefore
reasonable.
[15]
The applicants assert that the Board erred in three respects in
concluding that adequate state protection existed.
[16]
First, they argue that the Board misstated the applicants’
testimony in a material respect: it stated that Ms. Polak's mother had
only called the police only once. I agree that the Board did misstate the
evidence. Ms. Polak testified that her mother called the police several
times. I am not persuaded, however, that this error was material. A fair
reading of the Board's reasons shows that its conclusion with respect to state
protection was based upon the documentary evidence, Ms. Polak's own
failure to seek state protection, and the length of time that Ms. Polak
has been alway from Poland. The Board's error in stating
the number of times that Ms. Polak’s mother called the police did not
influence its ultimate conclusion with respect to state protection.
[17]
Second, the applicants argue that the Board’s finding that Ms. Polak
failed to seek state protection is unreasonable. The applicants say that she
was a child for most of the relevant time and that she gave a reasonable
explanation for not calling the police when she was older. Ms. Polak
remained in Poland for two years after turning age eighteeen. In
my view, given the heavy burden on a refugee claimant to seek protection when
it may reasonably be forthcoming, the Board's conclusion was not unreasonable.
[18]
Finally, the applicants argue that the Board ignored relevant
evidence. The applicants say that the Board was obliged to expressly deal with
other decisions of the Board, which found inadequate state protection in
Poland, and a 1990 report of the United Nations Human Rights Committee (UNHRC),
which stated that Poland failed to protect female
victims of domestic violence.
[19]
It is trite law that the Board need not cite every document that
is in evidence. The Board's prior decisions all turn upon their own facts and
they are not binding on other panels of the Board. It is always possible the prior
decisions were wrong or were set aside on judicial review. Thus, the Board was
not obliged to specifically refer to its prior decisions. Similarly, it was
open to the Board to prefer more recent documentary evidence, such as the 2004
Response to Information Request POL42815.E (Implementation and effectiveness of
the Blue Card System (August 2003-August 2004) over the 1999 UNHRC report.
Because of the age of the UNHRC report, it was not so relevant and material to
the applicants' claim that I draw an adverse inference from the Board's failure
to expressly mention it.
SUBJECTIVE FEAR
[20]
As described above, while not a determinative finding, the
applicants' delay in seeking protection was found by the Board to be inconsistent
with a subjective fear of persecution. The applicants say that the Board erred
in this conclusion because it ignored their explanation that they did not know
that they could claim refugee protection on the basis of domestic abuse.
[21]
At
the hearing, the applicants provided the following explanations for the delay.
Ms. Polak testified that:
·
she
intended to stay in Canada for six months and
extended her visa for another year;
·
after
meeting Mr. Musialek, she was so happy that she did not want to go back to Poland;
·
she
did not approach anyone for legal advice, but thought that only political
refugees could apply for protection; and
·
she
wanted to stay in Canada legally, approached a
consultant, and made her claim approximately one month later.
[22]
Mr. Musialek
testified that:
·
he
intended to stay in Canada for one year;
·
after
learning of Ms. Polak’s pregnancy, he did not want to go back to Poland and wished to stay in Canada; and
·
they
did not do anything to legalize their status for fear of being deported.
[23]
Before
finding that the applicants’ delay in claiming protection was unreasonable, the
Board ought to have dealt with Ms. Polak's explanation that they did not
know that refugee protection was available for persons in their situation.
However, in my view, this error does not warrant the Court's intervention for
two reasons. First, and most importantly, the Board's decision was not
premised upon this conclusion and any error had no impact on the Board's
ultimate conclusion. Second, the balance of the applicants' testimony was not,
in my view, consistent with a well-founded fear of persecution.
SUBSECTION 108(4) OF THE ACT
[24]
The
subsections 108(1) and 108(4) of the Act provide that:
|
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:
(a) the person has voluntarily
reavailed themself of the protection of their country of nationality;
(b) the person has voluntarily
reacquired their nationality;
(c) the person has acquired a
new nationality and enjoys the protection of the country of that new
nationality;
(d) the person has voluntarily
become re-established in the country that the person left or remained outside
of and in respect of which the person claimed refugee protection in Canada;
or
(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 :
a) il se
réclame de nouveau et volontairement de la protection du pays dont il a la
nationalité;
b) il
recouvre volontairement sa nationalité;
c) il
acquiert une nouvelle nationalité et jouit de la protection du pays de sa
nouvelle nationalité;
d) il
retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel
il est demeuré et en raison duquel il a demandé l’asile au Canada;
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.
|
[25]
The
applicants argued that the "compelling reasons" exception found in
subsection 108(4) applied to Ms. Polak's claim. The Board rejected the
application of subsection 108(4) because Ms. Polak had not rebutted the
presumption of state protection and was not a Convention refugee when she left Poland. This is said to be
erroneous interpretation of subsection 108(4) of the Act.
[26]
In
my view, the Board did not err in failing to apply subsection 108(4) of the
Act. The Board is only obliged to consider this provision when it finds there
has been a change in circumstances so as to attract the application of
paragraph 108(1)(e) of the Act. See: Martinez v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 421 at paragraphs 19-22
(QL); and Ortiz v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1716
at paragraphs 60-62 (QL).
[27]
In
the present case, paragraph 108(1)(e) of the Act had no application. The Board
found that state protection was available and correctly concluded that, in such
a situation, the compelling reasons provision cannot be invoked.
SECTION 97 OF THE ACT
[28]
The
applicants submit that the Board erred by failing to conduct a separate
analysis under section 97 of the Act of Mr. Musialek's claim. This is
said to have been required because his claim is based on specific facts and is
not a claim based on domestic violence.
[29]
In
my view, the Board did not so err for the following two reasons. First, at the
hearing, Mr. Musialek's lawyer did not ask him any questions, stating that
"I think that the female claimant's testimony underlies the same issues
that are for the male claimant." It is difficult to see how this invited
a separate analysis of Mr. Musialek's claim. Second, the Board
specifically dealt with Mr. Musialek's testimony as to why he believed
that he would not get police protection in Poland, and found it to be unpersuasive and
inadequate to rebut the presumption of state protection. No further analysis
was required.
CONCLUSION
[30]
For
these reasons, the application for judicial review will be dismissed. Counsel
posed no question for certification and I agree that no question arises on this
record.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for
judicial review is dismissed.
“Eleanor
R. Dawson”
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