Date: 20130910
Docket: IMM-11329-12
Citation: 2013 FC 942
Ottawa, Ontario, September 10, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
|
|
MUKHAILO DUCHKO
|
|
|
|
Applicant
|
|
and
|
|
|
THE 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, SC 2001, c 27 [IRPA] of a
decision of the Refugee Protection Division [RPD], dated August
13, 2012 denying the Applicant refugee protection.
I. Facts
[2]
The
Applicant is a 52-year-old man from Sambor, Ukraine. He came to Canada once in 1998 to buy dentistry equipment and stayed for a week.
[3]
He
fears the Ukrainian nationalists who beat him in May 2007 as he was coming back
home from work. Following the incident, he was hospitalized in Sambor for six days.
[4]
His
house’s front door was also defaced in mid-November and his car was stolen in
December 2007.
[5]
He
left Ukraine on November 19, 2008, went to Moscow to purchase a false Israeli
passport and traveled to Canada.
II. Decision under review
[6]
The
RPD did not believe the Applicant’s fear to be well-founded and noted credibility
issues with regards to the story presented.
[7]
First,
at the hearing, when the Member asked the Applicant if the Ukrainian
nationalists he fears have a name, he said that he did not know them. In his
narrative, he referred to this group as the “Ukrainian Nationalist Army,” and
the Member therefore drew a negative credibility determination from this
contradiction.
[8]
Second,
the RPD noted that the Applicant contradicted himself, as he explained at the
hearing that he had previously come to Canada in 2000 but indicated in his Personal
Information Form [PIF] that he came in August 1998 for the purpose of visiting a
cousin and buying dentistry equipment.
[9]
The
Applicant claims that he is targeted by the nationalists because he is Jewish.
He also explained that his father was Ukrainian and his mother was Jewish, that
they were not very religious and that his former wife was Armenian. The RPD
determined that the Applicant and his family were not practicing Jews or at
least were not identifiable as Jewish people, and that he was therefore not
targeted because of his Jewish ethnicity.
[10]
The
RPD also noted that the Applicant had no corroborative evidence showing that he
had been hospitalized, absent from work, and interviewed by the police at the hospital,
and that he had no photographs of the injuries he claims to have sustained
during the attack by the nationalists in May 2007 after work in Turka.
Moreover, the Applicant has no evidence that his door was defaced with
anti-Jewish marks in November 2007. The RPD did consider that a claimant’s testimony
is presumed to be true by virtue of Maldonado v Canada (Minister of
Employment and Immigration), (1979), 31 NR 34, 1 ACWS (2d) 167, but
nonetheless determined that the utter lack of documentary evidence fuels enough
doubt against the credibility of the Applicant. The RPD further considered that
even if it had been shown that he had been attacked, nothing suggests that it
was a racially-motivated attack rather than a beating motivated by robbery, as
he was leaving a dental clinic where he worked. The RPD also reviewed
documentary evidence showing that, as of 2011, hate crimes directed against
non-Slavic ethnic and religious minorities, including the Jewish community,
continued to decrease. The RPD therefore determined that his fear is not
well-founded.
[11]
As
for the Applicant’s car that has been stolen in December 2007, the RPD
concluded that it cannot be established, on the balance of probabilities, that the
incident was linked to his Jewish ethnicity, and it also found that it could as
well be due to criminality, as discussed above.
[12]
Moreover,
the Applicant indicated that there were not too many Jewish people who worked
in Turka, which made him noticeable there. When asked why he did not work in
Sambor, where he lived and where many Jewish people work, he simply answered
negatively. The Applicant decided to move to the Carpathian Mountains, an act
that the RPD found did not make sense since he had the alternative of working
in Sambor, where he lived. The Applicant indicated that it would be hard for
him, as a Jew, to register to work in Sambor, which the RPD found to be not
credible as the Applicant explained that a number of Jewish people work there.
The RPD therefore concluded that the Applicant could have found work in Sambor,
albeit not in his specialty and that his allegation that he moved to the Carpathian Mountains was solely an embellishment of his story.
[13]
Finally,
the RPD considered that his two adult sons still live in his home area of
Sambor and have not experienced any problems with the nationalists.
[14]
The
RPD added that although the Applicant provided a letter from a Jewish community
centre, it was not satisfied that it corroborates the risk he would face should
he return to Ukraine.
III. Applicant’s submissions
[15]
The
Applicant first submits that in coming to the conclusion that the Applicant was
not identified as a Jew in the Ukraine, the RPD ignored the fact that his
accent and pronunciation in Russian make him easily identifiable, that the
attackers were members of an anti-Semitic nationalist paramilitary group, that
other Jews have been harassed and the targets of racist insults by the same
group, that the Applicant was the target of anti-Semitic vandalism, and that
the Applicant has begun to practice his faith in Canada, as he felt that he was
finally free to do so for the first time in his life. It was therefore
unreasonable to conclude that the Applicant was not targeted because of his
Jewish identity.
[16]
Moreover,
the RPD needed to consider the evidence of his religious practice in Canada in order to properly assess his prospective risk of persecution.
[17]
The
Applicant argues that it was unreasonable for the RPD to examine the 2007 attack
against the Applicant in light of documentary evidence for the year 2010, which
establishes that hate crimes against non Slave have decreased. A decrease in
hate crimes would mean that the rates were higher in the previous years, when
the attack actually occurred. In addition to this, the same report states that
hate crimes directed at minorities increased through 2008, and other reports,
which were not considered by the RPD, indicate that hate crimes against Jews
were at record-high levels at the time of the attack and that the Ukrainian
government was not able to protect its citizens.
[18]
The
Applicant adds that the RPD committed an error in stating that he was attacked
while leaving a professional dental clinic, as he was in Sambor when it
occurred, which is where he lives. Moreover, there is no evidence that he was
robbed. The Applicant further submits that the RPD failed to raise its suspicion
that the attack was not a hate crime at the hearing and therefore breached
procedural fairness.
[19]
Second,
the Member ignored the fact that the Applicant’s attack took place in Sambor,
and it seems from his decision that the Member thought the attack occurred in
Turka. Indeed, the RPD states in its decision that he could have found work in
Sambor although the Member never questioned the Applicant about this
possibility and, moreover, it would be illogical to seek work in the city where
he was attacked. The RPD further failed to consider that it was his apartment
door in Sambor that was vandalized.
[20]
The
Applicant also argues that, contrary to what is indicated in the decision, the
Member never asked him whether he sought work in Sambor but rather whether he
moved to Sambor, to which he replied negatively and explained that he could not
move to Sambor, as he was already living there. Moreover, contrary to the RPD’s
decision, the Applicant never stated that he would not be able to work in
Sambor.
[21]
Third,
the Applicant argues that the RPD came to an unreasonable conclusion when it
found that he did not know the name of the group of men who attacked him when
asked at the hearing, which is inconsistent with his PIF, in which he stated
that the group of men was the Ukrainian Nationalists Army. Indeed, the Member
did not ask whether the group had a name but wanted to know the names of the
attackers. The Member was under an obligation to raise his concern about
inconsistencies relating to the credibility findings during the hearing, which
he did not.
[22]
Fourth,
the Applicant submits that the RPD’s determination that the Applicant lacks
credibility because he testified having previously come to Canada in 2000 but wrote in his PIF that he came in 1998 is unreasonable, as the Applicant clearly
explained at the hearing that he came to Canada ten years before his second
trip in 1998. Moreover, the timing of the Applicant’s first visit in Canada has no relation to the persecution which the Applicant fled in 2007-2008.
[23]
The
Applicant also argues that the RPD’s determination according to which he has submitted
no evidence to support the fact that he was attacked in 2007 was drawn without
regard to the evidence to the effect that he missed work in May 2007. Moreover,
the RPD did not say anything about the explanations provided by the Applicant
as to why no hospital records, photographs of his injuries, and no police
reports were submitted.
[24]
The
Applicant further submits that the RPD’s finding that his sons were not in
danger in Sambor is erroneous, as he failed to ask him whether they can be
identifiable as Jews.
[25]
Finally,
the Applicant argues that it was procedurally unfair of the RPD to draw
conclusions on the matters related to the non identification of the Applicant
as Jewish, on whether or not the May 2007 attack was religiously
motivated, and the identity of the attackers without raising them with the
Applicant so as to give him an opportunity to respond.
IV. Respondent’s submissions
[26]
The
Respondent submits that the determination of a claimant’s credibility is within
the jurisdiction of the RPD. It has well-established expertise in the
determination of questions of fact, particularly in the evaluation of the
credibility and the subjective fear of persecution of a claimant.
[27]
The
Applicant was not able to relay information about his alleged persecutors, nor
could he establish that his sons are unsafe in the region where he was
persecuted.
[28]
Moreover,
the Applicant did not provide corroborative evidence of the one attack on which
his claim is based. There is no record of hospitalization, no record of missed
work, no photographs of the alleged injuries, and no evidence of an interview
by police. It has been recognized that the Court may draw a negative
credibility finding from a lack of corroborating evidence where there is a
reason to doubt an applicant’s claim, as in the present case. Such evidence was
arguably available. Furthermore, there was also no corroborative evidence for
the front door incident and theft of the Applicant’s car.
[29]
On
the finding that the Applicant was not identifiable as a Jew, the Respondent
submits that it is well supported by the fact that only one of the parents was
Jewish, that they were not very religious and that he did not attend a Jewish
Temple in the Ukraine.
[30]
On
the question of whether or not the May 2007 attack was economically or
religiously motivated, it is argued that since there is a lack of corroborative
evidence, it was not unreasonable to conclude that it may not have been caused
for a religious purpose.
[31]
In
response to the documentary evidence of 2010, argument showed that hate crimes
had decreased, it is noted by the Respondent that the report indicates that
hate crimes have declined and that this is relevant to any future risk of
persecution.
[32]
On
the location of the May 2007 assault, the Respondent blames the Applicant for
presenting unclear evidence as to where it occurred and that, therefore, the
Board's interpretation is reasonable. Having said that, counsel does admit that
the RPD “mistakenly believed” that the Applicant was assaulted in Turka, his
place of work, when in reality it was in Sambor. For the Respondent, it is an
innocent error caused by the Applicant's imprecise testimony.
[33]
In
reply to the argument of the Applicant based on ambiguous questioning on the part
of the RPD (asking for the names of attackers rather than the name of the
group), the Respondent explains that the Applicant had opportunities to specify
the group in question and that the end result shows that the oral testimony was
inconsistent with his written statement.
[34]
The
Respondent also suggested that it was reasonable for the RPD to make negative
inference arising from his oral testimony about his 1998 visit to Canada (he said at one time that it was in 2000 before correcting himself).
[35]
Finally,
on the question of procedural fairness, the Respondent considers that when
required, the RPD's concerns were communicated and that there is no obligation
to put all concerns before the Applicant for comments.
V. Issues
1. Did
the RPD commit an error in determining that the Applicant’s fear is not
well-founded and that he is not credible?
2.
Did
the RPD deal procedurally fairly with the Applicant when concluding on certain
matters without informing the Applicant?
VI. Standard of review
[36]
The
RPD’s determination regarding the credibility of the Applicant and whether he
established that he has been subjected to persecution in the Ukraine are to be
reviewed under the standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR
190).
The standard of correctness will be used to assess the arguments of the
Applicant that raise issues of procedural fairness (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339).
VII. Analysis
[37]
Since
this judicial review shows that some of the findings made by the RPD were based
not only on erroneous facts but also on wrong premises, these findings are such
that they render the decision unreasonable. Therefore, it will not be necessary
to deal with the procedural fairness issue.
[38]
The
RPD came to the conclusion, on a balance of probabilities, that the Applicant
was not identifiable as a Jewish person. This finding is determinant. It is the
basis for the decision made. Without it, all of the findings made could have
been different. The RPD determined, on that finding, that the Applicant had not
been targeted because of his Jewish heritage.
[39]
The
finding was made because only his mother was Jewish, because the family was not
“very religious,” as admitted by the Applicant, and also because he was married
to an Armenian lady. The RPD did not mention nor comment on the PIF information
of the Applicant that he was identifiable as a Jew because of his accent or
pronunciation in Russian.
[40]
Since
this finding is so crucial to the decision, this Court considers that, at a
minimum, the RPD should have noted this fact before concluding. Not having done
so renders this vital conclusion unreasonable.
[41]
But,
also as important, the RPD clearly shows a misconception of important facts
which brings it to draw a wrong conclusion.
[42]
Although
being told by counsel for the Applicant at the hearing that the May 2007 attack
occurred in Sambor on his way back from work in Turka, the RPD wrote its
decision as if the incident had occurred near his place of work in a dental
office. From this lack of understanding, two important findings were made without
any supporting evidence.
[43]
Because
the RPD wrongly associated the attack to have occurred near the Applicant's
place of work in Turka, a professional dental clinic, “a scenario no doubt
attractive to criminal elements,” it then concluded that it was economically
motivated rather than religiously based. This is wrong and of significant
importance to the decision-making process.
[44]
The
RPD also drew another negative inference based on this same misconception of
the location of the May 2007 attack when it reproached the Applicant for not
having worked in Sambor. Had the RPD understood that Sambor was the location of
the attack, this negative inference could not have been made, or it would have
been dealt with differently.
[45]
In
light of all of these important flaws in the decision rendered by the RPD, it
is just impossible to give it a reasonable qualification.
[46]
It
is in the interest of the parties that this decision be quashed so that a new
panel deals with all pertinent matters arising from this application.
[47]
The
parties were asked to submit a question for certification if they so decide but
none have been submitted.
JUDGMENT
THEREFORE,
THIS COURT ORDERS AND ADJUGES that:
1.
This
judicial review be granted.
2.
The
decision of the RPD dated October 17, 2012 is quashed.
3.
A
new panel will reconsider the matters.
“Simon Noël”
Email this Content