Docket: IMM-7207-13
Citation:
2015 FC 277
Toronto, Ontario, March
4, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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SERGEY MASALOV AND RAISA MASALOVA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This case is a judicial review, pursuant to
section 72(1) of the Immigration and Refugee Protection Act (SC 2001, c
27) [IRPA], of a decision of the Refugee Protection Division (RPD) rendered on
October 21, 2013. The RPD concluded that the Applicants, citizens of Russia, were not Convention refugees or persons in need of protection pursuant to ss. 96
and 97 of IRPA.
II.
Facts
[2]
The Applicants are an elderly couple of Tatar nationality
and the Islamic faith who fear persecution in Russia at the hands of skinheads
and other nationalists.
[3]
Mr. Masalov was physically attacked for the
first time in 1998, followed by eight subsequent attacks in the proceeding
decade (2002, 2003, 2004, twice in 2005, 2006, 2008 and in 2009). The injuries
from these assaults required medical attention, as did those suffered by his
wife during an incident in 2006 when the couple was assaulted together. These
physical attacks were in addition to various other threats and insults they
received over their many years in Russia. Although the Applicants sought
police protection on numerous occasions, no relief was provided.
III.
Decision
[4]
The RPD heard the claim on September 23, 2013.
The Board concluded that Mr. Masalov generally testified in a straightforward
manner, but he “embellished and speculated” in some
of his testimony. In particular, the Board questioned whether the police
telling Mr. Masalov that “he was not going to live a
long life” amounted to a threat on his life. Further along this line of
reasoning, the Board held that a poster calling for assaults on Tartars, or a
stone thrown through the Applicants’ window with a note attached saying “kill all of you”, did not amount to a personalized
death threat against the claimant.
[5]
On state protection, the Board concluded that Mr.
Masalov did not make a concerted effort to avail himself of state protection.
It started from the premise that a claimant from a democratic country will have
a heavy burden in showing that all remedies available have been exhausted
before claiming refugee status. While acknowledging that there have been
instances of violence targeting religious and ethnic minorities, the Board
cited evidence that the President of Russia at the time, Dimitry Medvedev, urged
various government bodies to foster a relationship with the country’s Muslim
population, numbering 20 million people.
[6]
The Board also found that the Applicants had an
internal flight alternative [IFA] in Kazan, a primarily Muslim city of 1.2
million people in Tatarstan, and home to over 50 operational mosques.
IV.
Positions of the parties.
[7]
The Applicants’ arguments regarding the
unreasonableness of the decision relate to purported errors the Board made with
regards to credibility, state protection, and the IFA.
[8]
In instances where the Board raised credibility
concerns, the Applicants argue that these conclusions were flawed because they
did not accord with the evidence on the record. For instance, while the Board
described Mr. Masalov’s testimony as stating that the police told him that he would
“not live a long life”, the transcript of the
hearing shows that his actual testimony was that the police told him, “Go away from here and far if you want to be alive.”
[9]
The Board also found that “no other action against the claimant was adduced”
after a rock with a threatening note attached had been thrown through the
Applicants’ window in the summer of 2008. Yet, Mr. Masalov was attacked shortly
thereafter by his neighbours in August, 2008, and then once again the following
year. Not only do medical documents confirm that he suffered bruises and that
his teeth had to be removed, but the Applicants provided a copy of a flyer left
in their mailbox which states, “EVERYBODY STAND UP AND
FIGHT KIKES, ASIANS AND TARTARS! THE ONLY WAY TO KILL THAT CONTAIGION IS BY
FORCE!” Consequently, the fears faced by the Applicants are not
embellishments, but realistic possibilities.
[10]
As for state protection, the Applicants sought
protection, on five separate occasions after their assaults, but no assistance
was provided. As such, their efforts were perfectly reasonable in the
circumstances. Furthermore, the Board misapprehend the actual level of
democracy in Russia in applying its strong presumption of state protection. The
Applicants argue that there was substantial documentary evidence on the record
to show that Russia does provide the kinds of human rights protections that one
would ordinarily expect in a fully functioning democracy.
[11]
Mr. Masalov also attempted to use the media
for redress, writing a letter to the local newspaper regarding the conduct of
the police, which was included in the documentation submitted. The Board
doubted his credibility with respect to this action, concluding that there was
no evidence to support that his letter had been received by the newspaper. The
Applicants submit that it is unclear what additional documents the Board
expected them to provide, given that the newspaper had not replied, but instead
forwarded the letter to the police. Indeed, the Board did not address the fact
that there was a handwritten note on the letter, presumably written by
newspaper staff, advising the newspaper not to publish the letter and redirecting
it to the police because “it’s their business to sort
out.”
[12]
On IFA, the Applicants argue that the Board did
not turn its mind to the second prong of this test, to consider whether it
would be reasonable in the circumstances for the Applicant to seek refuge in Kazan. Mr. Masalov had already tried to seek refuge there on a previous occasion, but it
was not possible for him to live there because of his failure to meet an
accommodation requirement, a Propiska registration. The Propiska required proof
of a permanent job, which he could not obtain. Additionally, some landlords are
unwilling to submit registration documents to the Department of Registration,
which would also preclude registration. Therefore, it was not possible, on a
practical level, for the Applicants to live in that city. Further, they do not
have any family in the IFA, and suffer from poor health.
[13]
The Respondent, on the other hand, argues that
the Board's decision was reasonable.
[14]
Given the Board’s credibility concerns, it was
open to it to the Board to seek corroborating evidence, and raise concerns
about efforts to obtain such evidence. Credibility findings are factual
findings and the Applicants must demonstrate that they are perverse and
capricious to warrant the Court's intervention.
[15]
Furthermore, the Board’s state protection and
IFA findings were open to it, as the Applicants failed to provide clear and
convincing evidence to demonstrate that there was inadequate protection available
in Russia.
V.
Standard of review
[16]
As agreed upon by the parties, the standard of
review of the RPD decision is reasonableness. This means that
this Court will review whether there is “the existence
of justification, transparency and intelligibility within the decision-making
process” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
For the Court to intervene, the decision must fall outside of a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
VI.
Analysis
[17]
I agree with the Applicants that the decision
was unreasonable on numerous fronts, which, in their totality, result in the
need for a rehearing of this matter.
Credibility
[18]
Various credibility findings overlooked key
aspects of the written and oral evidence presented. For example, little
comment was made on the extensive medical records that corroborated the oral
and written testimony regarding the attacks the Applicants suffered. Similarly,
the Board did not address the hand written note on Mr. Masalov’s complaint
letter indicating that it had been received by the newspaper. In was therefore
unreasonable for the Board to conclude that, “no other
documentation was produced to substantiate that this letter was received by the
newspaper, or that any action was taken by any authority” (Application
Record [AR], p 13).
[19]
While the decision indicates the Board had credibility
concerns with the legitimacy of instances of persecution in the Applicants’
narrative, including whether a rock was thrown into a window at their residence
or personal threats were made from their neighbour, the foundation for these
concerns is unclear. It is trite law that a claimant’s narrative is to be believed
unless there is reason to question otherwise (Zeng v Canada (Citizenship and
Immigration), 2014 FC 1060 at para 18; Lin v Canada (Citizenship and
Immigration), 2008 FC 381 at paras 14-16; Maldonado v Canada (Minister
of Employment and Immigration), [1980] 2 FC 302).
[20]
The Board did not find that the Applicants to be
evasive or inconsistent generally, and indeed, acknowledged they had testified
in a straightforward manner (AR, p 12). After a review of the record, I do not
find their testimony, whether written or oral, to be speculative or embellished
with respect to the concerns raised by the Board.
State protection
[21]
The Board’s treatment of state protection suffers
from two fundamental problems.
[22]
First, there was ample evidence to show that the
Applicants sought protection over a number of years and on a number of
occasions, but did not receive any satisfactory response. Mr. Masalov, who was
not in a position to protect himself due to his age, reasonably explained how
he tried to rely on the state apparatus through several unsuccessful attempts
to obtain protection from the authorities.
[23]
Second, the Board noted that the presumption of
state protection is heightened in a democracy. This is undoubtedly correct. However,
merely because a country purports to conduct itself in democratic manner does
not end the analysis. Rather, it is incumbent on the Board to review the
documentary evidence and evaluate the degree to which its state institutions
uphold democratic protections and ideals. These principles include, for instance,
state protection of human rights, an effective police force, and an independent
judiciary. In this case, these cornerstones do not appear to align with much of
the documentary evidence submitted before the Board.
[24]
For example, the US DOS 2009 Human Rights
Report: Russia notes:
The constitution prohibits such practices;
however, there were numerous, credible reports that law enforcement personnel
engaged in torture, abuse, and violence to coerce confessions from suspects,
and there were allegations that authorities did not consistently hold officials
accountable for such actions.
(Certified Tribunal Record [CTR], p. 601)
Police investigation of cases that appeared
to be racially or ethnically motivated was frequently ineffective. Authorities
were at times reluctant to acknowledge the racial or nationalist element in the
crimes, often calling attacks "hooliganism." Many victims met with
police indifference, and immigrants and asylum seekers who lacked residence
documents recognized by police often chose not to report attacks. According to
the SOVA Center, willingness to recognize crimes as hate crimes varied widely
depending on the personal views of the local prosecutor; the center noted that
the number of hate crimes prosecuted in Moscow increased significantly after a
new prosecutor took office in 2008.
Muslims and Jews continued to encounter
prejudice and societal discrimination, although it was often difficult to
separate religious discrimination from ethnic discrimination.
(CTR, p. 666)
[25]
Justice Rennie (as he then was) explained in Sow
v Canada (Minister of Citizenship and Immigration), 2011 FC 646, how the
presumption of state protection varies with nature of the democracy in the
state, and the importance of considering the quality of the institutions
providing protection:
9 In a democratic country there
is a presumption that a state can protect its own citizens. As such, the onus
is on the applicant to rebut this presumption and prove the state's inability
to protect through "clear and convincing" evidence: Canada (Attorney General) v Ward [1993] 2 S.C.R. 689 at para 50; Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171 at paras 43-44; Zepeda v Canada (Minister of Citizenship and Immigration), 2008 FC 491 at para 13.
10 This principle, however, does not stand in isolation. It is tempered
by the fact that the presumption varies with the nature of the democracy
in a country. Indeed, the burden of proof on the claimant is proportional to
the level of democracy
in the state in question, or the state's position on the "democracy
spectrum": Kadenko v Canada
(Minister of Citizenship and Immigration) [1996]
FCJ No 1376 at para 5; Avila v
Canada (Minister of Citizenship and Immigration),
2006 FC 359 at para 30; Capitaine v
Canada (Citizenship and Immigration) 2008 FC 98
at paras 20-22.
11 Democracy alone does not ensure effective state protection. The Board must
consider the quality of the institutions providing that protection. As well,
the Board must look at the adequacy of state protection at an operational level
and consider persons similarly situated to the applicant and their treatment by
the state: Zaatreh v Canada
(Citizenship and Immigration), 2010 FC 211 at
para 55.
12 Democracy, for these purposes, encompasses more than the existence of free and
fair elections. It is not a black or white analysis. The jurisprudence is clear
that democracies
are to be assessed on a continuum, and that the more "democratic" a
country, the greater the burden on the applicant to rebut the presumption of
state protection. Democracy, to be more than a label, requires institutions
and principles to give effect to the values that the term encompasses. These
may include, amongst others, an independent judiciary and defence
bar, access to justice and a police force that is independent in the exercise
of its investigatory function.
[26]
In my view, the Board relied excessively on the
presumption of state protection in democracies without taking into account the adequacy
of Russian institutions. In any event, the Board’s state protection analysis
seems to be coloured by its credibility concerns over whether the Applicants
brought their issues forward to the authorities. Since, as noted above, the
Board has made reviewable errors regarding credibility, the state protection analysis
should be revisited.
IFA
[27]
The test for an IFA is twofold: (i) the Board
must be satisfied, on a balance of probabilities, that that there is no serious
possibility of the claimant being persecuted in the proposed IFA, or (ii) conditions
in the proposed IFA must be such that it would not be unreasonable, upon
consideration of all the circumstances, for the claimant to seek refuge there (Thirunavukkarasu
v Canada ( Minister of Employment and Immigration ), [1994] 1 FCR 589; Singh
v Canada (Citizenship and Immigration), 2009 FC 1304 at para 14; Kamburona
v Canada (Citizenship and Immigration), 2013 FC 1052 at para 25).
[28]
The threshold for the second prong is a high
one, as indicated by the Federal Court of Appeal in Canada (Minister
of Citizenship and Immigration) v Ranganathan, [2001] 2 FC 164 at para 15,
requiring “nothing less than the existence of
conditions which would jeopardize the life and safety of a claimant in
travelling or temporarily relocating to a safe area.”
[29]
The Applicants submit that it is unreasonable to
expect the Applicants to relocate to the proposed IFA. I agree. Mr. Masalov had
attempted to relocate to Kazan in February 2008, but could only obtain
temporary residence for three or four days because he was unable to obtain a Propiska
registration (CTR, p 732).
[30]
The documentary evidence, particularly Response
to Information Request RUS103311.E [RIR], lists the cascading effects of an
inability to register. Permanent registration is a required to access health
care services, to vote in elections, to collect unemployment benefits, to
receive a pension, to open a bank account, to get a private bank loan, to
qualify for housing programs, to agree to a contract and to receive social
service benefits (AR, p 608).
[31]
It appears that lacking registration may also
invite harassment by the authorities, as the RIR indicates that “NGO and media sources indicate that
unregistered persons may be subject to harassment by the police” and “police on
patrol are permitted to arrest, detain, fine, and search homes of unregistered
persons.” Expecting an elderly couple to endure
persistent police harassment is unreasonable, as it implicates their safety within
the IFA.
[32]
The Board referred to the RIR in its decision,
concluding:
...The document goes on to outline some of
the difficulties faced in registering in a new location. None of the legal
restrictions apply to the claimant.”
[33]
However, the Board did not make clear in its
reasons why the legal restrictions would not apply. Put another way, Mr.
Masalov, who was found to be generally credible, had already tried, and failed,
to obtain a registration in Kazan. I do not see the evidentiary basis for the
Board’s belief that he would be able to register without issue if he was
returned to Russia (Sarker v Canada (Citizenship and Immigration), 2014
FC 1168 at para 22).
[34]
Given the reviewable errors of the Board with
regards to its credibility, state protection and IFA analysis, I allow the
application and would remit the matter for determination by an alternate
decision maker.
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