Ottawa, Ontario, Monday the 8th day of August 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Lukasz Muszynski is a 25-year old citizen of Poland who claims status as a Convention refugee and a person in need of protection.
[2] Mr. Muszynski says that his father operated a fur business in Poland, and that he worked for that family business part-time on weekends. Mr. Muszynski says that, because the family refused to pay protection money to the "local mafia gang", he and his father were assaulted. He says that his life would be in danger if he were to return to Poland.
[3] Mr. Muszynski's claim was heard by the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "panel") which found that he contrived much of his story and embellished events and circumstances so as to create the basis for his claim. The RPD found that Mr. Muszynski would not be faced with a serious possibility of persecution, or a serious possibility of risk to life, or of cruel or unusual treatment or punishment, or danger of torture, if he were to return to Poland. The panel also found that state protection was available to Mr. Muszynski in Poland should he require such protection.
[4] Mr. Muszynski brings this application for judicial review from that decision.
[5] In his application, Mr. Muszynski raised two issues with respect to the panel's decision. First, he asserted that the panel made perverse findings concerning his credibility. Second, he argued that the panel ignored or misconstrued relevant evidence when it concluded that the documentary evidence established that state protection would be available to him. During oral argument, Mr. Muszynski raised a third issue: whether his right to natural justice was breached by the RPD's failure to provide the Court with the proper transcript of the hearing that does not record portions of his testimony as being inaudible. Counsel for the Minister did not object to this issue being raised.
[6] In my view, the determinative issue in this case is the panel's finding of state protection. More particularly, the RPD concluded that Mr. Muszynski failed to establish that state protection would not be available to him in Poland, noting that there was no evidence that Mr. Muszynski had ever approached the police or other authorities in order to seek protection. The RPD pointed to the fact that Poland is a democratic country with institutions and infrastructure which created the presumption of adequate state protection that Mr. Muszynski failed to rebut. In particular, the RPD referred to documentary evidence to the effect that while there was some problem with criminality in Poland, the state was making serious efforts to combat crime, and that state protection was available to victims of extortion.
[7] In order to reach a conclusion with respect to the adequacy of state protection, the RPD is obliged to make certain findings of fact. Those findings of fact can only be set aside by this Court, if made in a perverse or capricious manner, or without regard to the material before the tribunal. See: Mugesera v. Canada(Minister of Citizenship and Immigration), 2005 SCC 40 at paragraph 38.
[8] Once those findings of fact are made, they must be assessed against the legal test articulated by the Supreme Court in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 724, namely do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption of state protection? This is a question of mixed fact and law. On the basis of the pragmatic and functional analysis conducted by my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, I accept that the appropriate standard of review of the decision as to the adequacy of state protection is reasonableness simpliciter.
[9] The documentary evidence before the panel does indicate that organized crime is a problem in Poland, and that cases of "extortion robbery" increased from 1997 to 2000. However, the documentary evidence also establishes that Poland has implemented legislative amendments to combat crime, particularly extortion. While the documentary evidence indicates problem areas and weaknesses in Poland's current handling of various criminal activities, in my view, it cannot be said that the panel ignored or disregarded evidence on this issue or that its weighing of the evidence was perverse or capricious. The view which the RPD then took of facts as it found them when applied to the legal test articulated by the Supreme Court in Ward was one which could reasonably be taken. There is, therefore, no basis for intervention by this Court.
[10] My conclusion with respect to the RPD's finding on state protection is dispositive of this application because any asserted problems with the transcript are relevant only to the issue of credibility. With respect to the issue of credibility, even if the panel erred in finding Mr. Muszynski to be incredible, and I make no such finding, his claim could not succeed in the face of the finding of adequate state protection. With respect to the asserted breach of natural justice, any inadequacy in the transcript does not breach Mr. Muszynski's right to natural justice because the record before the Court is adequate to permit the Court to properly dispose of the application for judicial review. See: Canadian Union of Public Employees, Local 301 v. Montreal(City), [1997] 1 S.C.R. 793 at pages 840 and 842.
[11] The application for judicial review will therefore be dismissed.
[12] Counsel posed no question for certification, and I agree that no serious question of general importance arises on this record.
ORDER
[13] THIS COURT ORERS THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
______________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5618-04
STYLE OF CAUSE: LUKASZ MUSZYNSKI V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 18, 2005
AND ORDER
APPEARANCES:
JEINIS PATEL FOR THE APPLICANT
ALEXIS SINGER FOR THE RESPONDENT
SOLICITORS OF RECORD:
BARRISTER & SOLICITOR FOR THE APPLICANT
TORONTO, ONTARIO
JOHN H. SIMS, Q.C.