Docket: IMM-898-15
Citation:
2016 FC 480
Ottawa, Ontario, April 28, 2016
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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IEVGENII
VOLOSHYN
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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.
Nature of the Matter
[1]
Mr. Ievgenii Voloshyn challenges a decision rendered
on February 5, 2015, in which the Refugee Appeal Division [RAD] dismissed his
appeal of a negative decision rendered by the Refugee Protection Division
[RPD]. Both have found that he is neither a Convention refugee nor a person in
need of protection.
II.
Facts
[2]
The Applicant is a 28 year old Ukrainian citizen
of Russian ethnicity, who lived in Kiev. He fears being forcibly recruited into
paramilitary groups destined to be sent to the front lines in eastern Ukraine. Several events in March 2014 led to this fear.
[3]
On March 15, 2014, a paramilitary group
telephoned his mother requesting that he present himself at a military unit in Kiev, which he did not do. The Applicant states that he already completed his army service
in 2006-2007 and declares having been a “private”.
[4]
On March 17, 2014, he says that while he was
walking his dog, masked men armed with batons surrounded him. They asked him
why he was not at the military camp, and asked him where he lived. He claims
they had a computer print-out and looked up his name. They told him to present
himself to the military station.
[5]
On March 18, 2014, his mother called his uncle
in Canada to arrange for a visa to Canada for him. The Applicant immediately moved
to his girlfriend’s parents’ place in another area in Kiev for safety. The
following day, on his way to work, the Applicant was stopped at a “checkpoint”
set up by paramilitaries. He saw the masked men grab one young man and pull him
away. The Applicant drove down a side street to escape.
[6]
The Applicant left Ukraine for Canada on May 10, 2014, and claimed refugee protection at the end of June 2014.
[7]
The Applicant believes his name has been
circulated to the government and that there is a reasonable chance he would be
detained at the airport in Ukraine if he were to return. He believes that his
refusal to join the paramilitary groups will entail reprisals and punishment
from the paramilitaries or the Ukrainian government, because his refusal could be
seen as desertion. Moreover, the Applicant fears increased punishment because
of the existing anti-Russian sentiment in Ukraine.
[8]
The RPD rejected the Applicant’s refugee claim
on October 1, 2014, on the basis of a lack of credibility and lack of
well-foundedness of his claim.
III.
Impugned Decision
[9]
On appeal, the RAD began by indicating that
there would be no oral hearing, as no new evidence was submitted in support of
the appeal. The RAD stated that it would conduct its own assessment of the
RPD’s decision, using the approach in Huruglica v Canada (Citizenship and
Immigration), 2014 FC 799, and that it would afford deference to the
RPD’s credibility findings and other findings where the RPD has a particular
advantage in reaching its conclusions.
[10]
The RAD acknowledged that the documentary
evidence in the National Documentation Package stated that the Ukrainian
President had signed an order reinstating military conscription on May 1, 2014,
and that the Applicant left the country that same month. However, the RAD noted
that the evidence showed that conscription only affected men aged 18 to 25
years and that the Applicant had not received any calls or written notice from
the Ukrainian government ordering him to present himself for military service.
Moreover, there was no evidence that the Ukrainian forces are today recruiting
men in the Applicant’s age category (above 25), nor was there evidence that the
Ukrainian government would kill the Applicant if he failed to report for
military service. Thus, the RAD found it unlikely that the Applicant would be
subject to conscription in the Ukrainian forces or that he would be punished by
the Ukrainian government for desertion, since he had not been officially
recruited.
[11]
The RAD acknowledged that the Ukrainian
government may have been dependent on the paramilitaries from February to May
2014, but concluded that since then, the government had made efforts to
strengthen its army with the help of foreign investments. The government
created the National Guard on March 12, 2014, one of its goals being to disarm
the volunteer militias.
[12]
The RAD also agreed with the RPD’s other
conclusions: it found that there was no evidence that paramilitaries would have
transmitted information about the Applicant to the Ukrainian armed forces. It
also found that the bill that would purportedly limit the use of the Russian
language in public affairs in Ukraine had not been passed into law.
[13]
The RAD concluded at paragraph 30 of its reasons
that:
…the [Applicant], as a Russian speaking
Ukrainian citizen who is not politically active and who lives in Kiev would not
face a serious possibility of persecution in Ukraine today by either the
government or society. He would also not, on a balance of probabilities, be
personally subjected to a danger of torture, a risk to his life, or a risk of
cruel and unusual treatment or punishment, should he return to Ukraine. For
these reasons his appeal is rejected.
IV.
Issue and standard of review
[14]
This judicial review raises a single issue:
Did the RAD make a reviewable error in
finding that the Applicant is neither a refugee nor a person in need of
protection?
[15]
I agree with the parties that the applicable
standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC
9 at para 47).
V.
Analysis
[16]
Since this case was argued before me, the
Federal Court of Appeal [FCA] rendered its decision in Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93. I have given
the parties the opportunity to provide additional submissions as to whether the
FCA ruling had an impact on the present case. I only received a reply from the Respondent,
who focuses on the answer provided by the FCA to the certified question, and
who argues that in the present case, the RAD’s decision can withstand the
correctness standard with regard to its findings of fact and mixed fact and law
and that deference was owed to the finding of credibility. I agree with the Respondent.
[17]
That said, as Justice Gleason held in Herrera
Andrade v Canada (Citizenship and Immigration), 2012 FC 1490 at para 11 [Andrade],
“the starting point for the inquiry in respect of an
argument regarding the impact of failure to mention key evidence is that the
reviewing court must presume that the tribunal considered the entire record”, and thus the Applicant “bear[s] a high burden of persuasion”.
Second, in assessing reasonableness, the Court must assess the outcome and the
reasons of the tribunal, as per Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at para 14. Third, the Court must give deference to the tribunal’s findings,
especially where such findings are at the core of the tribunal’s expertise.
[18]
In its assessment of the evidence, a decision
maker is not required to refer to
and analyze every single piece of evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at
para 16 (QL) [Cepeda-Gutierrez]). Moreover, Andrade,
above at para 9, holds that Cepeda-Gutierrez “does
not stand for the proposition that failure to analyze evidence that runs
contrary to a tribunal's conclusion necessarily renders a decision
unreasonable”. Thus, the bar for finding that
the decision is unreasonable is high.
[19]
For the reasons below, I find that the RAD’s
decision is reasonable.
[20]
First, I cannot agree with the Applicant’s contention
that the RAD erred in concluding that the Russian language is well-entrenched
in Kiev and that the RAD ignored contrary evidence demonstrating the Applicant
has a well-founded fear in the new Maidan government. It was open to the RAD to
make that conclusion on the evidence before it. As for the question of the
repeal of the language minority law, the RAD may have wrongly concluded that
the Ukrainian parliament had not passed it into law, since some of the evidence
in the Certified Tribunal Record suggests that the law was repealed. However,
there was no clear evidence on that issue, and thus I find that the RAD’s
conclusion was reasonable. Moreover, I am not satisfied that this issue went to
the heart of the Applicant’s claim; his claim was rather based on his fear of
forced recruitment.
[21]
Second, I reject the Applicant’s argument that
the RAD erred in finding that the Maidan government would not harm or kill him
if he failed to return for military service, due to the RAD’s failure to take
into account the draft law that would make deserters liable to receiving the
death penalty. The RAD found that the Ukrainian government would not find the
Applicant to be a deserter in the first place, because he had not been
officially recruited. Thus, the evidence of the draft law is not relevant to
the Applicant’s situation.
[22]
Third, with respect to the Applicant’s argument
that the RAD should not have upheld the RPD’s application of too high a
standard of proof with respect to the transmission of information from the
paramilitaries to the government, I am of the view that the decision in Zhu
v Canada (Minister of Citizenship and Immigration), 2001 FCT 1026 (FCTD),
cited by the Applicant, is distinguishable from the present case. In that case,
there was evidence of a transfer of information: the applicant had given
information to the RCMP about human smugglers (“snakeheads”) in China, which was transferred to counsel in a related court case; the applicant was thus
claiming to be a refugee sur place. The Court held that it was
unreasonable for the Convention Refugee Determination Division [CRDD] (as it
then was), to require evidence that the information transferred to counsel in
the court case had also been transferred to the “snakeheads” in China:
[16] Once the evidence established that
Mr. Zhu’s information was given to counsel for the accused, and filed in
evidence at a public trial and in publicly available court records, it was, in
my view, patently unreasonable for the CRDD to suggest that further evidence
was required to establish that the information actually came to the attention
of a potential agent of persecution. …
[23]
In the present case, however, there was no
evidence of a transfer of information from the paramilitaries to the Ukrainian
government in the first place. Thus, it was reasonable for the RAD not to
intervene in the RPD’s finding to that effect.
[24]
Fourth, I reject the Applicant’s argument that
the RAD misapprehended the evidence regarding conscription. Contrary to the
Applicant’s assertion, the RAD not only cited the 2005 “peace-time” document,
but it also cited recent evidence that there had been second and third waves of
conscription in May and July 2014, respectively. The RAD even acknowledged that
the Applicant had left during the May 2014 wave of conscription. Nevertheless,
it found that conscription only affected men aged 18 to 25 years, and that the
Applicant had not received any calls or written notice from the Ukrainian
government ordering to present himself for military service. Thus, the RAD reasonably
concluded the Applicant would not be a target for conscription.
[25]
Finally, I disagree with the Applicant’s
contention that the RAD’s reasons were not transparent because they did not
comment on the contradictory evidence. As mentioned above, the jurisprudence is
clear that a tribunal need not refer to and analyze every single piece of
evidence (Cepeda-Gutierrez, above at para 16), and that the existence of
contradictory evidence will not necessarily render a decision unreasonable (Andrade,
above at para 9).
VI.
Conclusion
[26]
Therefore, this judicial review is dismissed. The
parties did not propose any question of general importance for certification and
none arises from this case.
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