Docket: IMM-2751-15
Citation:
2015 FC 1317
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, November 26, 2015
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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NIKOLA
PARMACEVIC
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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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JUDGMENT AND REASONS
I.
Introduction
[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] of the Immigration and Refugee Board of Canada, dated May 25, 2015, dismissing
the applicant’s claim for protection as a refugee or a person in need of
protection within the meaning of sections 96 and 97 of the IRPA.
II.
Facts
[2]
The applicant, Nikola Parmacevic, 31 years old, is
a citizen of Croatia. He alleged that he received death threats if he did not
leave Croatia to return to Canada and make a refugee claim based on a fictional
story provided by his persecutor.
[3]
The applicant’s problems allegedly began when he
borrowed $25,000 KN from a wealthy individual, Kristijan Gerhard, who
apparently had connections with influential people in Croatia (police officers,
government representatives, etc.). The applicant alleged that he reimbursed the
sums due in accordance with the agreement, but Mr. Gerhard allegedly
continued to swindle him, always asking for more money. The applicant, unable
to meet his financial obligations, received a [translation]
“proposal” from Mr. Gerhard to make a
refugee claim in Canada, work there and make monthly payments to Mr. Gerhard
for a period of approximately three years so as to be released from the debt
due. The applicant was told that if he refused to comply and claim refugee
status in Canada, based on a fictional story that he was persecuted in Croatia because
of his sexual orientation, he would be murdered. The applicant left Croatia on June 4,
2012, and arrived in Canada the following day. The applicant made a refugee
claim on June 22, 2012, and his Basis of Claim form (original BoC) was received
by the RPD on June 26, 2012.
[4]
In his original BoC, the applicant affirmed that
he was persecuted in Croatia because of his sexual orientation. But an amended Basis
of Claim form (amended BoC) was submitted on May 24, 2014, in which the
applicant admitted that his story that he was persecuted in Croatia because of
his sexual orientation is fabricated and that he was threatened with death and swindled
by Mr. Gerhard. During his hearing on September 10, 2014, the applicant—representing
himself—explained the reasons for which he lied in his original BoC. The RPD was
informed on October 2, 2014, that the applicant had a new lawyer. Since the
RPD member who heard the first hearing was not available, a de novo hearing
into the file was ordered with a new member.
[5]
In a decision dated May 25, 2015, the RPD found
the applicant credible, believed his story that he had been persecuted in Croatia
by Mr. Gerhard, that he received death threats and that he would risk
being persecuted if he were to return to Croatia. However, the RPD found, after
reviewing the documentary evidence, that the applicant had not rebutted the presumption
of state protection in Croatia. Given this finding, the RPD did not review the question
as to whether the applicant’s risk is personalized.
III.
Analysis
[6]
The main issue before the Court is whether the
RPD’s decision is reasonable.
[7]
The applicant alleged that the RPD disregarded
the contradictory documentary evidence with respect to state protection in Croatia;
and that the RPD should have examined whether the measures taken by the authorities
in Croatia produced results (Galogaza v Canada (Minister of Citizenship and
Immigration), 2015 FC 407).
[8]
As this is a question relating to the issue of
state protection in Croatia, the RPD’s findings to this effect must be reviewed
on a standard of reasonableness (Hinzman v Canada (Minister of Citizenship
and Immigration), 2007 FCA 171 at para 38; Majlat v Canada (Minister of
Citizenship and Immigration), 2014 FC 965 at para 9).
[9]
For the following reasons, the Court found that the
RPD’s decision is reasonable.
[10]
It is well established that it is not this Court’s
role to reassess the documentary evidence reviewed before the RPD, neither is
it this Court’s role to substitute its conclusions with respect to the
documentary evidence for that of the RPD (Paniagua v Canada (Minister of
Citizenship and Immigration), 2008 FC 1085 at para 8; Orellana Ortega v
Canada (Minister of Citizenship and Immigration), 2012 FC 611 at para 14). Furthermore,
the mere fact that the RPD did not mention in its decision all the applicant’s
evidence does not mean that the RPD did not consider them in making its decision
(Velasquez v Canada (Minister of Citizenship and Immigration), 2009 FC
109 at para 21).
[11]
It appears from the RPD’s decision that it
conducted a detailed review of state protection in Croatia since it examined
both the evidence in support of its conclusion and the evidence against it. In
addition, the Court noted that the RPD was sensitive to the applicant’s situation,
but ultimately found that there was state protection for people in the same
situation as the applicant in Croatia.
[12]
Given that the RPD properly justified its decision,
that it carefully examined the evidence contradicting its findings, that it showed
that it is sensitive to the applicant’s particular situation and the risks that
he would encounter by returning to Croatia, it appears that the decision falls
within the possible, acceptable outcomes. The Court may disagree with the
decision-maker’s conclusion with respect to state protection in Croatia, however,
that is not the question; the question is whether the RPD’s conclusions fall
within the possible, acceptable outcomes which are defensible in respect of the
facts and the law (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC
9 at para 47). In this case, the answer is yes, thus the RPD’s decision is
reasonable.
IV.
Conclusion
[13]
The Court finds that the RPD’s decision is
reasonable. Therefore, the application for judicial review is dismissed.
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