Docket: IMM-43-16
Citation:
2016 FC 814
Ottawa, Ontario, July 18, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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SVITLANA SERIKOVA
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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
[1]
The Applicant is seeking judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision dated December 9, 2015 of the Refugee
Appeal Division [RAD] of the Immigration and Refuge Board of Canada. In that
decision, made pursuant to section 111(1)(a) of IRPA, the RAD confirmed the
determination of the Refugee Protection Division [RPD] that the Applicant is
neither a Convention refugee nor a person in need of protection.
[2]
For the reasons that follow, this application is
dismissed.
I.
Background
[3]
The Applicant, Ms. Svitlana Serikova, is a
citizen of Ukraine, who seeks refugee protection because of fear of her former
common-law husband, who she alleges abuses alcohol and began assaulting her
physically in 2011. She claims that she approached the police and office of the
public prosecutor, but did they not assist her.
[4]
Ms. Serikova applied for a visa to Canada, using
a travel agency which had assisted her with a similar application in 2010. She
left Ukraine on October 12, 2013 and entered Canada. Having valid status under
her visa until 2015, she alleges that she then learned from a neighbour in
Ukraine that her former husband was still searching for and threatening her, as
a result of which she initiated a claim for refugee protection in Canada.
II.
Impugned Decision
[5]
The RPD rejected Ms. Serikova’s claim on
September 21, 2015, finding that she lacked credibility and that internal
flight alternatives [IFAs] existed. She appealed this decision to the RAD,
which concurred with the RPD that Ms. Serikova did not present as a credible
witness and that the test applicable to IFAs had been met.
[6]
The RAD referred to Justice Phelan’s decision in
Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC
799 [Huruglica] as providing guidance as to the standard of review
applicable to the RAD’s consideration of decisions of the RPD. The RAD stated
that it would follows this guidance, quoting paragraphs 54 and 55 of Justice
Phelan’s decision:
[54] Having concluded that the RAD
erred in reviewing the RPD’s decision on the standard of reasonableness, I have
further concluded that for the reasons above, the RAD is required to conduct a
hybrid appeal. It must review all aspects of the RPD’s decision and come to an
independent assessment of whether the claimant is a Convention refugee or a person in need of
protection. Where its assessment departs from that of the RPD, the RAD must
substitute its own decision.
[55] In conducting its assessment,
it can recognize and respect the conclusion of the RPD on such issues as
credibility and/or where the RPD enjoys a particular advantage in reaching such
a conclusion but it is not restricted, as an appellate court is, to intervening
on facts only where there is a “palpable and overriding error”.
[7]
In the course of analyzing the issues
surrounding Ms. Serikova’s credibility, the RAD referred to the RPD noting that
she had not included her former husband’s name on her visa application. His
name was omitted under applicable questions and the section listing her family
information. Her explanation, that this information was copied by the travel
agency from the visa application completed in 2010 (before she met her husband),
was not accepted by the RPD, which drew a negative inference and found that
this omission detracted from her credibility.
[8]
The RAD found that the RPD did not err when it
made this credibility finding. The RAD noted that Ms. Serikova had indicated
that she would provide new evidence in this regard but that she had failed to
do so. It reviewed the relevant segment of the audio recording of her RPD
hearing, noted that she had testified that she had read and signed the
application, and accordingly found that she bore responsibility for her
actions.
[9]
After concurring with the RPD’s overall finding
on credibility, the RAD proceeded to consider the RPD’s finding of viable IFAs
in Kiev, Odessa or Lviv. It considered the two prong test prescribed by Rasaratnam
v Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)
and Thirunavukkarasu v Canada (Minister of Employment and Immigration),
[1994] 1 F.C. 589 (C.A.).
[10]
On the first prong of this test, requiring the
RPD to be satisfied on a balance of probabilities that there is no serious
possibility of the claimant being persecuted in the part of the country to
which it finds an IFA exists, the RAD noted Ms. Serikova’s argument before the
RPD that Ukraine is extremely corrupt and that, because of the system of
registration of addresses, her former husband could bribe officials to obtain
her new address. The RAD stated that, after conducting an independent
assessment of the record, it was not persuaded that the agent of persecution
would be motivated to purse Ms. Serikova or would have the ability to do so in
any event. It was not satisfied that he had the means and profile necessary to
locate and harm her.
[11]
Turning to the second prong of the IFA test,
that it would not be unreasonable for the claimant to seek refuge in the IFA,
the RRD had found that Ms. Serikova could not provide any further reasons why
she would be unable to live in the IFAs. It noted she was well-educated and had
significant work experience, having owned her own business, and found that she
would not be prevented from acquiring work and a means to support herself in
one of the IFAs, even if not in her desired field.
[12]
Ms. Serikova argued before the RAD that the RPD
had erred by suggesting that she should live an underground life in order to avoid
her assailant. However, the RAD found that there was no suggestion of this sort
on the part of the RPD, as it had not found that her assertion that her husband
could locate her was well-founded. The RAD referred to the documentary evidence
to the effect that there were many internally displaced persons in Ukraine,
with no evidence that authorities in regions to which such persons were going
were refusing to accept them or denying them social services.
[13]
The RAD therefore concurred with the RPD that
either Ms. Serikova could access the registration system with a view to
changing her address, without fear of her former husband being able to procure
this information or, in the alternative, that she could move to another
location without being compelled to live an underground life.
III.
Issues and Standard of Review
[14]
The principal issue raised by Ms. Serikova is
that she was denied procedural fairness, because the RAD did not consider new
evidence that her counsel filed with the RAD the day before its decision was
made. This was the new evidence to which Ms. Serikova had referred in argument before
the RAD, which took the form of a letter from a translation bureau, confirming
that it had assisted her in completing the questionnaire for a visitor’s visa
to Canada in both 2010 and 2013. The letter stated that it had copied the
information from the 2010 questionnaire in completing the 2013 questionnaire.
[15]
Ms. Serikova argues that the procedural fairness
issue she raises is reviewable on a standard of correctness, and the Respondent
concurs.
[16]
In her further Memorandum of Argument, filed in
this application on May 16, 2016, Ms. Serikova also argues that the RAD erred
in applying the “hybrid appeal” standard of
review prescribed by Justice Phelan, rather than the standard of correctness
prescribed by the Federal Court of Appeal in its decision upholding Huruglica
in Canada (Minister of Citizenship and immigration) v Huruglica,
2016 FCA 93.
IV.
Analysis
[17]
My decision to dismiss this application for
judicial review turns on the fact that, independent of the credibility findings
which Ms. Serikova argues could have been impacted by the new evidence to which
her procedural fairness argument relates, the RAD also upheld the RPD’s findings
that there were viable IFAs.
[18]
The Respondent argues that Ms. Serikova has not
challenged the IFA findings and that this alone is determinative that this
application must fail. I am not prepared to adopt that position, as Ms. Serikova
has argued that there is a linkage between the credibility findings and those
related to the IFA. Instead, I have considered her position that the RAD’s IFA
findings were influenced by its credibility conclusions and rejection of her
allegations of abuse by her former husband. She points to the RAD’s analysis
under the first prong of the IFA test and to its conclusion that it was not
persuaded that the agent of persecution would be motivated to pursue her or
would have the ability to do so in any event. However, I have reviewed the
RAD’s reasons and, as explained below, conclude that its findings related to
the IFA are not premised on the adverse credibility determinations.
[19]
Of course, a properly conducted IFA analysis is
premised on either a finding or an assumption that there is an agent of
persecution. The first prong of the IFA test considers whether there is a
serious possibility of the claimant being persecuted in the part of the country
being considered as an IFA. As a matter of logic, such consideration is only
meaningful where there is an agent of persecution. If it has been found that
there is no agent of persecution, as was the case in the present matter because
of the adverse credibility findings, then the IFA analysis must be in the
alternative, amounting to a consideration whether the test would be met even if
it was assumed (contrary to the actual finding) that there is an agent of
persecution.
[20]
In the RPD’s decision, it expressly states that
it has determined that Ms. Serikova lacks credibility but that, in the
alternative, if it did accept that she was being pursued by her former husband,
it has gone on to examine IFAs. In the Conclusion in the RAD’s decision, it
states:
The RAD concurs with the RPD that the
Appellant did not present as a credible witness. Having said this, however,
the RPD went on to consider the viability of an internal flight alternative.
After conducting an independent assessment of the entire record, the RAD
concurs with the RPD that both prongs of the IFA test have been met in any of
the named IFAs. (emphasis added)
[21]
The highlighted language indicates that the RAD,
which was concurring with the RPD’s decision, recognized that the RPD was conducting
its IFA assessment as an alternative analysis, i.e not premised on the adverse
credibility determinations. The RAD’s own analysis indicates that it approached
its own assessment the same way. Its findings include the following:
A.
Ms. Serikova has submitted insufficient evidence
to persuade the RAD that the agent of persecution has a profile which would
allow him to bribe authorities and therefore access personal records;
B.
The objective evidence indicates that: (1) the
residential registration system is not mandatory and there are no legal
ramifications for women who refuse to change their registration information
because of a fear of domestic violence; and (2) even where a woman changes her
registration, the offender will be unable to find her if he does not know where
she has moved to;
C.
The agent of persecution has to have the means,
the profile and the opportunity to locate first the city, and then the person,
and then go on to harm the person; The RAD did not have sufficient credible
evidence to make a finding that her former husband has the means to do all
that;
D.
The RAD considered the fact that Ms. Serikova
was not located when hiding at the home of a friend. Also, apart from the phone
call to him indicating her potential return to Ukraine, there was insufficient
evidence to suggest during the almost two year stay in Canada that, other than
wanting to live in her apartment, he was threatening her in a way that would
suggest he would pursue her in the future.
[22]
I read this analysis as premised on the
assumption that her former husband is an agent of persecution. It is in that
context that the RAD considers his means and motivations. Its finding to which
Ms. Serikova refers, that he would not be motivated to pursue her, is not
premised on the rejection of her allegations of abuse but on the lack of
evidence of him threatening her while she was in Canada other than the phone
call in 2015.
[23]
I therefore find that Ms. Serikova has not
demonstrated any linkage between her procedural fairness argument, related to
the new evidence that goes to her credibility, and the IFA findings. As such,
even if I were to accept that she was denied procedural fairness by the RAD not
having considered that evidence, and that consideration of that evidence could
impact the RAD’s credibility findings, her claim would nevertheless fail
because of the determinative IFA findings. This therefore falls into the
category of cases, as referred to in Mannan v Canada (Minister of
Citizenship and Immigration), 2015 FC 144 at para 53 and Nagulesam v
Canada (Minister of Citizenship and Immigration), 2004 FC 1382 at para 17,
where a breach of procedural fairness can be overlooked if it has no material
effect on the decision. It is therefore unnecessary for me to decide whether
there has been a breach of procedural fairness.
[24]
I have also considered Ms. Serikova’s argument
that the RAD erred in employing the wrong standard of review, relying on
Justice Phelan’s decision in Huruglica rather than that of the Federal
Court of Appeal. However, the RAD’s reasons do not support such a conclusion. The
test as articulated by Justice Phelan requires a review of all aspects of the
RPD’s decision and the performance of an independent assessment of whether the
claimant is a Convention refugee or a person in need of protection. Relying on
such an articulation does not itself suggest that the review conducted by the
RAD did not meet the correctness standard as subsequently expressed by the
Federal Court of Appeal. Based on my reading of the RAD’s reasons, its
assessment of the RPD’s decision conforms with a correctness review. This case
is therefore comparable to Justice Locke’s recent decision in Sui v Canada
(Minister of Citizenship and Immigration), 2016 FC 406 at para 16:
[16] Even though the FCA modified
somewhat the approach taken by Justice Phelan in Huruglica which was
relied on by the RAD in the present case, I am of the view that the RAD made no
reviewable error in describing and applying its role in the appeal of the RPD’s
decision.
[25]
I therefore find no basis to interfere with the
RAD’s decision, and this application must be dismissed. Neither party proposed
a question of general importance for certification for appeal, and none is
stated.
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