Date: 20021122
Docket: IMM-4655-01
Neutral Citation: 2002 FCT 1208
Ottawa, Ontario, November 22, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MARIYA KIRILOVA STANKEVA
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision delivered on September 10, 2001, by the Refugee Division of the Immigration and Refugee Board (Refugee Division) in which it was determined that the applicant, Mariya Kirilova Stankeva, is not a refugee within the meaning of the United Nations Convention relating to the status of refugees (the Convention).
Facts
[2] The applicant is a citizen of Bulgaria. She alleges that she has a well-founded fear of persecution because of her religion. She is a Jehovah's Witness.
[3] The applicant alleges that the police often drove her and her fellow Jehovah's Witnesses away when they were going door to door distributing religious pamphlets and "spreading the good news". The police prevented them from distributing their pamphlets. She refers to a particular incident, on July 31, 1999.
[4] On September 7, 1999, the applicant was assaulted by members of the Internal Macedonian Revolutionary Organization (IMRO). This organization is represented in the Bulgarian parliament and fights alien religions. A coreligionist of the applicant sought to lay a complaint against this assault but the police, she says, refused to receive the complaint.
[5] The applicant also began receiving anonymous and insulting telephone calls. In October 1999, the situation became unbearable for her and her family and accordingly they moved to Sofia, the capital of Bulgaria. Once settled there, the applicant began to meet with other Jehovah's Witnesses in that city.
[6] In the spring of 2000, the applicant distributed some pamphlets in a park, thus attracting the ire of one of her neighbours who threatened her, she says. During the same period, a stone thrown from outside broke the applicant's kitchen window and almost struck her daughter on the head. About a dozen neighbours shouted death threats at the window. The applicant then called the police. They investigated and, she says, concluded that the neighbours had not seen or heard anything and that what was happening to the applicant was her own fault.
[7] After this incident, the applicant says, she began receiving anonymous and threatening calls again.
[8] On August 20, 2000, while the applicant was distributing religious pamphlets in a shopping mall, she was assaulted by a group of five or six individuals. The applicant lost consciousness and spent an hour in the hospital. She did not want to inform the police of this incident for fear of being humiliated.
[9] The applicant then decided to leave Bulgaria. On September 27, 2000, she arrived in Canada on a tourist visa. She applied for refugee status. Her family, meanwhile, moved to another neighbourhood in Sofia.
Decision of the Refugee Division
[10] The Refugee Division determined that the applicant had not discharged her burden of proof and refused to grant her refugee status.
[11] The Refugee Division based its decision on three things. First, it expressed some "minor doubt" about the applicant's religious practice, because she had some difficulty quoting a verse from the Bible. However, the panel admits that the applicant testified in a direct manner.
[12] Second, the Refugee Division found that the documentary evidence contradicted a statement by the applicant contained in her Personal Information Form (PIF). The following passage appears in the Division's reasons for decision:
[translation]
... the claimant alleges in her reply to question 37 of her PIF [Personal Information Form] that the Jehovah's Witnesses are not accepted by the political and police authorities. This statement is contradicted by the documentary evidence, in particular exhibit A-11 [U.S. Department of State Annual Report on International Rights, Annual Report 1999], which informs us that the Jehovah's Witnesses obtained official registration from the Bulgarian government in October 1998, all associations wishing to exercise their religious freedom being subject to such registration....
The panel is of the opinion that in denying this specific fact in her PIF, the claimant proves she is not credible on this particular point.
[13] Third, the Refugee Division held that the applicant had not established in a clear and convincing way that the Bulgarian government is unable and unwilling to protect her. Moreover, the panel thought it was improbable that instead of laying a complaint with the authorities she would abandon her job and choose to leave the city she had lived in for sixteen years in order to go and settle in Sofia, the capital.
[14] In the opinion of the Refugee Division, the applicant had not demonstrated perseverance and determination in her search for protection in her country, and accordingly was unable to rebut the presumption from the documentary evidence that the Bulgarian government is capable of protecting its citizens.
Issues
[15] Did the Refugee Division render a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, and, more particularly, in relation to the following conclusions:
- that the applicant had not established in a clear and convincing way that the Bulgarian government is unable or unwilling to protect her;
- that the documentary evidence contradicted the applicant's statement that the Jehovah's Witnesses are not accepted by the political and police authorities;
- in doubting the applicant's religious practice because she was unable to quote some verses from the Bible.
Analysis
[16] It has been settled law since the judgment in Ward v. Canada, [1993] 2 S.C.R. 689, that in order to satisfy the definition of "Convention refugee" a claimant must provide clear and convincing proof that the state of which he is a national is unable to protect him. At page 726 of this judgment, Mr. Justice La Forest states:
In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced.
[17] In the case at bar, the Refugee Division determined that the applicant had not proved by clear and convincing proof that Bulgaria was unwilling or unable to protect her. In its reasons, it notes three major incidents in support of its conclusion. At page 2 of its decision, it states:
[translation] Indeed, the claimant has not established clearly and convincingly that the Bulgarian government is unable or unwilling to protect her. It should be noted that of three major incidents alleged, the claimant has personally complained only once. We note, first, that in Blagoevrad, at the time of the alleged assault of September 7, 1999, in which she claims to have been injured, she did not lay a complaint, preferring to let her companion go to the police. In the panel's opinion, it is improbable that instead of laying a complaint with the authorities she would abandon her job and choose to leave the city she had lived in for sixteen years in order to go and settle in Sofia, the capital. Secondly, the incident of August 20 in Sofia, in which she was allegedly beaten, lost consciousness and had to be taken to the hospital, did not result in a complaint, either; the claimant pleaded that she would have been humiliated and treated as crazy. But we note that on the only occasion that the claimant called the police, during the incident in the spring of 2000, when a stone came through the kitchen window, the police came and investigated before leaving. It is impossible, in this case, to speak of a lack of protection. In the panel's opinion, the police have the obligation to be diligent, but not to produce results.
[18] The applicant submits that this conclusion is patently unreasonable in view of her personal story and the documentary evidence. She says she approached the police for protection on several occasions, without success, and was refused it. She says the documentary evidence also proves the futility for the Jehovah's Witnesses in seeking police protection, owing to the latters' preconceived ideas in regard to the Jehovah's Witnesses.
[19] The Refugee Division had before it Exhibit A-11, U.S. Department of State Annual Report on International Religious Freedom For 1999: Bulgaria, and Exhibit A-5, International Helsinki Federation for Human Rights, Annual Report 1999. This documentation, specifically referred to in the Refugee Division decision, is not particularly clear in regard to the situation in Bulgaria as to the ability of the Bulgarian government to protect its citizens. On the one hand, it notes some progress by the authorities, who since 1998 have recognized the Jehovah's Witnesses as an officially registered religion, thereby allowing the exercise by their members of their religious freedom. On the other hand, one finds in these same documents reports of incidents of harassment and discrimination in regard to Jehovah's Witnesses.
[20] After reviewing all the evidence, I am of the opinion that the Refugee Division did not commit any reviewable error in reaching the conclusion that it did on this issue. The burden was on the applicant to demonstrate by clear and convincing evidence that the Bulgarian government is unable to protect her. The Refugee Division could reasonably find, on the evidence, that the applicant had not rebutted the presumption that the Bulgarian government is capable of protecting its citizens.
[21] I am unable to find a contradiction between the applicant's statement in her PIF that the Jehovah's Witnesses are not accepted by the political and police authorities and the documentary evidence. In my opinion, there is no error there that is sufficiently serious to warrant the intervention of this Court.
[22] Furthermore, the "minor doubt" raised by the Refugee Division concerning the applicant's religious practice is not a conclusion that I consider patently unreasonable in the circumstances. It is also clear that the Refugee Division's decision does not turn on this conclusion.
[23] Finally, the applicant submits that the Refugee Division failed to consider the two medical certificates confirming the two physical assaults she had suffered in Bulgaria because of her membership and religious activities as a Jehovah's Witness, both in Blagoevgrad and in the capital, Sofia.
[24] The Refugee Division noted these medical reports at page 3 of its reasons. So it cannot be said that the panel did not consider them. The probative value to be accorded to a medical report pertains to the panel's discretionary assessment. (See Bula v. S.E. Canada, [1994] F.C.J. No. 937, A-794-92, June 16, 1994 (F.C.T.D.).) In this case, it is my opinion that no reviewable error was committed in this regard by the Refugee Division. In any event, the applicant could, as the Refugee Division determined, enjoy the protection of the Bulgarian government.
[25] For these reasons, the application for judicial review will be dismissed.
[26] The parties have not proposed the certification of a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. I do not propose to certify a serious question of general importance.
ORDER
THE COURT ORDERS:
1. The application for judicial review of the decision delivered on September 10, 2001, by the Refugee Division of the Immigration and Refugee Board is dismissed.
"Edmond P. Blanchard"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4655-01
STYLE: Mariya Kirilova Stankeva v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 7, 2002
REASONS FOR ORDER OF BLANCHARD J.
DATED: November 22, 2002
APPEARANCES:
Alain Joffe FOR THE APPLICANT
Caroline Cloutier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alain Joffe FOR THE APPLICANT
606-10, rue St-Jacques
Montréal, Quebec H2Y 1L3
Morris Rosenberg FOR THE RESPONDENT
Department of Justice
Montréal Regional Office
200 René-Lévesque Blvd. West, 9th Floor
Montréal, Quebec H2Z 1X4