Date: 20030826
Docket: IMM-4708-02
Citation: 2003 FC 999
OTTAWA, ONTARIO, TUESDAY, THIS 26TH DAY OF AUGUST, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE JUDITH SNIDER
BETWEEN:
SERGIY CHORNY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Sergiy Chorny (the "Applicant"), a citizen of Ukraine, arrived in Canada in March 2000 and claimed Convention refugee status alleging a well-founded fear of persecution at the hands of anti-Semitic groups and criminals by reason of race. In particular, the Applicant alleges that he has experienced incidents of mistreatment and harassment because he is Jewish and consequently a person in danger of being tortured or at risk of losing his life or of being subjected to cruel and unusual treatment or punishment. In its decision dated September 12, 2002, a panel of the Refugee Division of the Immigration and Refugee Board ("the Board") rejected the Applicant's claims. The Applicant seeks judicial review of that decision.
The Board's Decision
[2] The key findings and conclusions of the Board were as follows:
· the Applicant was not a Convention refugee because his claim had no nexus to the Convention refugee definition;
· the Applicant had a well-founded fear of persecution if he were to return to the Sukholimanskaya/Odessa area based on the harassment at the hands of Sergey Shevchuk ("Shevchuk"), which, cumulatively, amounted to persecution;
· the Applicant's Jewish background was an incidental element in the harassment by Shevchuk, with the crucial issue being his relationship with Natasha, a non Jewish girl, which led to a serious personal antipathy and vendetta;
· the claimant had a viable internal flight alternative ("IFA") in Kiev;
· it was objectively reasonable for him to seek refuge in Kiev;
· he would not be at risk of harm at the hands of the Ukranian mafia in Kiev;
· there was not a reasonable chance that the Applicant would suffer persecution by the reason of his Jewish background in Kiev.
Issues
[3] A preliminary issue raised by the parties was the appropriate standard of review to be applied in this case. Beyond this question, the single issue raised by the Applicant is whether the Board erred by concluding that the Applicant had a viable Internal Flight Alternative. Related to this issue were the following two subsidiary issues:
1. Did the Board err by finding that Jews are generally not at risk in Kiev?
2. Did the Board err by failing to consider the Applicant's perceived ethnicity from the perspective of the alleged agents of persecution?
Analysis
[4] For the reasons that follow, I am of the view that this application should not succeed.
Preliminary Issue: What is the correct standard of review?
[5] The Applicant argues that the standard of review to be applied to the issue in this case is one of correctness. I do not agree. In my view, patent unreasonableness is the standard for this issue of IFA.
[6] I agree with the Applicant that the Court must engage in the well-established pragmatic and functional analysis to determine the appropriate standard of review when judicially reviewing the decision of an administrative tribunal (Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 (QL)). However, I cannot accept that, if this has already been done on an issue, it has to be done all over again. As can been seen from the review that follows of the jurisprudence on the standard of review in respect of IFA, a pragmatic and functional analysis and the case law supports a conclusion that the appropriate standard is patent unreasonableness.
[7] The Federal Court of Appeal discussed the concept of IFA in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). Linden J.A., writing for the Court, stated at paragraph 2 that the notion of IFA is:
...merely a convenient, short-hand way of describing a fact situation in which a person may be in danger of persecution in one part of a country but not in another. The idea of an internal flight alternative is "inherent" in the definition of a Convention refugee [...]; it is not something separate at all. That definition requires that the claimants have a well-founded fear of persecution which renders them unable or unwilling to return to their home country. If claimants are able to seek safe refuge within their own country, there is no basis for finding that they are unable or unwilling to avail themselves of the protection of that country.
[8] As with the other components of the Convention refugee definition, the claimant bears the onus of establishing, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area which is alleged to afford an IFA. Thus, the Board's IFA conclusion is simply part of its conclusion that there is not a serious possibility that the Applicant will be persecuted. I can see no reason why the less deferential standard of correctness should apply to one part of this determination (e.g. IFA) and not to another (e.g. adequate state protection or whether discrimination amounts to persecution).
[9] What standard has the Court applied in similar situations? Two recent decisions of this Court, while not explicitly carrying out a pragmatic and functional analysis, concluded that the review of a Board's IFA findings is patent unreasonableness (Ali v. Canada (Minister of Citizenship and Immigration), 2001 FCT 193, [2001] F.C.J. No. 361 (QL); Ramachanthran v. Canada (Minister of Citizenship and Immigration) , 2003 FCT 673, [2003] F.C.J. No. 878 (QL)).
[10] I also note that in Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283 (T.D.) (QL), Tremblay-Lamer J. conducted an analysis based on the pragmatic and functional approach in order to determine the standard of review of the Board's determination regarding whether the Applicant would face persecution if he returned to India. Her conclusion was that the appropriate standard is patent unreasonableness. As indicated above, the notion of IFA is inherent in this determination.
[11] Based on the jurisprudence and the pragmatic and functional analysis conducted in Singh, supra, I am of the view that the appropriate standard of review of patent unreasonableness. However, I note that the Board must apply the proper test in determining whether an IFA exists (Thirunavukkarasu, supra). If the Board fails to do so, that will be a reviewable error.
Issue #1: Did the Board err by concluding that the Applicant had an Internal Flight Alternative?
[12] As indicated, the Board concluded that the Applicant had an IFA in Kiev.
[13] In the Applicant's submission, the Board erred in law in its IFA finding because it failed to address whether the Applicant would be at risk of persecution from Sevchuk and his gang in Kiev. In addition, the Board acknowledged that the problem of the absence of state protection was part of a broader pattern within Ukraine, which was sufficient to establish an absence of state protection (Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.)). The issue the Board failed to address was whether state protection in Kiev, if the vendetta were carried on there, would be any different from state protection in the Odessa area.
Principles of Availability of State Protection and IFA
[14] According to paragraph 97(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"), in order to be found a person in need of protection, the Applicant must establish that he faces risk in every part of Ukraine:
| 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally [...] (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if(I) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
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97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays don't elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée_: [...] b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant_: (I) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
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[15] According to the Supreme Court of Canada in Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689, absent a situation of complete breakdown of the statue apparatus, it should be assumed that the state is capable of protecting its citizens. Because of this presumption, "clear and convincing confirmation of a state's inability to protect must be provided" (Ward, supra at para. 50).
[16] The IFA refers to a fact situation where a "person may be in danger of persecution in one part of a country but not another" (Thirunavukkarasu, supra at para. 2). If the Applicant is able to seek safe refuge within the Ukraine, there is no basis for finding that he is unwilling or unable to avail himself of protection in Ukraine.
State Protection in Kiev
[17] The Board accepted that the Applicant was unable to obtain effective state protection from the police in his village. Subparagraph 97(1)(b)(ii) of the IRPA makes it clear that the Board must also examine the availability of protection in other parts of the country. And the Board did just that by looking carefully at how the Applicant might fare if he were to relocate to Kiev and whether, in the circumstances, this was a reasonable alternative.
[18] While the Board found a local absence of state protection in the Applicant's village, it did not find that this absence of state protection was part of a broader pattern in Ukraine. With respect to Kiev, the Board found that the Applicant would be able to avail himself of the protection offered all citizens in that city. The Board continued its reasoning by stating that the limited resources of the police in Ukraine is an economic issue, not an anti-Semitic one, and all people in Ukraine suffer because of these limited resources.
[19] The Applicant takes issue with this reference. I do not view the Board's statement regarding limited resources as an acknowledgement that state protection is as unavailable in Kiev as in the Applicant's village. Rather, it is simply a statement giving a reason for the weakness (not failure) of the existing state protection. In this particular section of the Board's decision, the Board appears to be addressing both the weaknesses of the state protection and whether its weaknesses can be seen as related to race or ethnicity. While the drafting may be less than perfectly clear, there is no reviewable error.
[20] It is well-established that local failures to provide effective policing do not amount to a lack of state protection. According to Pelletier J. in Zhuravlvev, supra, at paragraph 31, a "local refusal to provide protection is not a state refusal in the absence of evidence of a broader state policy to not extend state protection to the target group."
Failure to Consider Whether Shevchuk Would Follow Applicant to Kiev
[21] The Applicant also expressed concern that the Board did not turn its mind to the question of whether Shevchuk would follow the Applicant to Kiev, thereby continuing the persecution.
[22] Although there was no explicit finding that contains direct reference to Shevchuk, I note that the Board found that the problems faced by the Applicant at the hands of Shevchuk and his gang were of a highly personal and localized nature. In my view, implicit in this conclusion is a finding that there is little risk that Shevchuk would follow the Applicant to Kiev in order to continue the vendetta.
[23] In addition, it was not patently unreasonable for the Board to conclude that the Applicant's problems were localized in nature. The evidence revealed that the Applicant experienced problems with Shevchuk in a small village, with a population of approximately 1500, located about seven kilometres outside of Odessa. In general, the incidents of harassment occurred when the Applicant encountered Shevchuk. It does not appear that Shevchuk went actively looking for the Applicant in order to harass him.
[24] Kiev, the proposed IFA, is approximately 550 kilometres from Odessa. Between 1998 and 2000, the Applicant worked for about six months for his uncle and another company in Kiev. Although Shevchuk did follow the Applicant on one occasion for sixty or seventy kilometres on his way to Kiev, Shevchuk never actually came to Kiev in order to continue his vendetta. Considering that the Applicant is no longer in a relationship with Natasha and had been absent from Ukraine for sixteen months at the time of the Board's decision, it was open to the Board to discount the possibility that Shevchuk would follow the Applicant to Kiev to continue the vendetta, if the Applicant were to return to Ukraine.
Possible Persecution by Ukraine Mafia
[25] It was also open to the Board to find that it was not likely that the Applicant would be persecuted by connections of Shevchuk in Kiev, given the personal nature of the vendetta and the low level gang position of Shevchuk. According to the Applicant, Shevchuk and his group were part of the organized crime structure which involved eight to ten people who controlled small businesses and extorted money from business owners in the southern part of the Odessa suburbs. I agree with the Board that it is implausible someone like Shevchuk would be able to influence gang members in Kiev or that gang members in Kiev would be interested in becoming involved in this personal conflict.
Reasonableness of Relocation to Kiev
[26] It would be an error for the Board to fail to consider whether it was reasonable for the Applicant to relocate to the IFA. Thus, in completing its analysis, the Board also found that it was not objectively unreasonable for the Applicant, who had lived and worked previously in Kiev, to seek refuge there. The Applicant agrees that this is not an issue in this case
Conclusion
[27] Therefore, the Board did not err in its IFA conclusion. It is apparent from the reasons of the Board that it considered the Applicant's testimony, the conditions of Kiev and all of the circumstances of the case in reaching its conclusion that it was not objectively unreasonable for the Applicant to seek refuge in Kiev. The following two issues are in effect subsidiary issues of this larger question. I have chosen to address them separately.
Issue #2: Did the Board err by finding that Jews are generally not at risk in Kiev?
[28] In the Applicant's submission, the Board erred by having an overly narrow focus and not considering the nature of the danger Jews actually face in Ukraine. The Board's reasons ignore certain documentary evidence submitted by the Applicant and, in particular, documentary evidence that demonstrates that the basis for the threat to Jews in Ukraine comes from an extreme violent neo-Nazi fringe against which the state does not provide protection. The Applicant submits that no mention of this threat was made in the decision. In addition, the Applicant referred to the decisions of this Court in Krait man et al v. Canada (Secretary of State), [1994] F.C.J. No. 1063 (T.D.) (QL) and Katkova v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 549 (T.D.) (QL), both of which cast doubt on the Ukraine's ability to protect its Jewish citizens and both of which were before the Board.
[29] Although the Board had already determined that the Applicant was not persecuted as a result of being Jewish, it took a cautious approach and considered whether the Applicant would be in danger in Kiev if he were to "rediscover his ethnic identity". In this analysis, the Board reviewed the documentary evidence related to state protection of Jews in the Ukraine.
[30] The Applicant argues that the Board ignored relevant evidence that pointed to the failure of Ukraine to protect its Jewish citizens from violent anti-Semitic groups. In particular, I was referred to a number of passages from the documentary evidence, most of which were contained in a submission made to the Board by the Applicant's counsel. Although its assessment of such evidence was very brief, I am satisfied that the Board did consider all of the evidence before it. Certain of the evidence was simply not as persuasive as the Applicant would have liked. For example, of the two Federal Court cases referred to in the counsel's submission, one dealt with a completely different issue (Katkova, supra) and the other (Kraitman, supra) predates the preponderance of documentary evidence by several years.
[31] The most recent documentary evidence before the Board indicated that the central government in Ukraine has taken real steps to protect its Jewish citizens from violence; that the threat to Jews remains in some local or regional areas where anti-Semitic Soviet era officials still hold sway; and that rampant anti-Semitism is not a problem in Ukraine. One example of the documentary evidence was the Research Directorate's Issue Paper Ukraine: Situation of Jews, dated January 1999, which suggests that it might be easier for Ukrainian citizens to get legal redress in Kiev than in provincial towns and cities. Other documentary evidence referred to the fact that the Ukrainian government is committed to fighting anti-Semitism and that the Jewish population has enjoyed increasing opportunities for religious and cultural expression since Ukrainian independence. Thus, although the analysis of the evidence could have been more thorough in the decision and while I might have decided otherwise, the Board's conclusion was not, in my view, perverse.
[32] Further, I fail to see any error of consequence from the Board's failure to make explicit mention of the threat to Jews from the violent neo-Nazi fringe. In the decision, there is specific reference to the steps taken by the central government in Ukraine "to protect its citizens from violence and its incitement". In making this statement, I am satisfied that the Board turned its mind to the possible sources of "violence and its incitement" that were included in the documentary evidence, including the neo-Nazi groups referred to by the Applicant.
As a result, the Board's conclusions regarding the risks faced by Jews generally in Ukraine were supported by the evidence before it and were not patently unreasonable.
Issue #3: Did the Board err by failing to consider the Applicant's perceived ethnicity?
[33] The Applicant submits that the Board erred by failing to consider whether he would be perceived as Jewish by aggressive violent anti-Semites (Ward, supra).
[34] Contrary to the submission of the Applicant, the Board's decision indicates that it did consider the possibility that the Applicant would be recognized as Jewish as a result of his observations of the Jewish faith or traditions, his passport or other identity documents. In my view, based on the evidence before the Board, including the fact that the Applicant does not practise his faith and the documentary evidence, there was no reviewable error. Its conclusion was that there was not a reasonable chance that the Applicant would suffer persecution at the hands of violent anti-Semitic groups, the alleged agents of persecution, in Kiev because he was Jewish. This conclusion was not perverse or patently unreasonable.
Question for Certification
[35] The Applicant proposes the following question for certification:
"Where there is a well-founded fear of persecution from non-state agents for Convention reasons, must the availability of state protection be for a Convention reason?"
I do not see this question as determinative of the issues before me and decline to certify it.
ORDER
THIS COURT ORDERS that the application is dismissed. No question will be certified.
"Judith A. Snider"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4708-02
STYLE OF CAUSE: Sergiy Chorny
Applicant
- and -
The Minister of Citizenship and Immigration
Respondent
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: Wednesday, August 6, 2003
REASONS FOR ORDER: THE HONOURABLE MADAM JUSTICE SNIDER
DATED: Tuesday, August 26, 2003
APPEARANCES:
David Matas FOR APPLICANT
Penny Piper FOR RESPONDENT
SOLICITORS OF RECORD:
DAVID MATAS FOR APPLICANT
BARRISTER & SOLICITOR
602-225 VAUGHAN STREET
WINNIPEG, MANITOBA
R3C 1T7
MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA