Date: 20020208
Docket: IMM-5548-01
Neutral citation: 2002 FCT 147
Toronto, Ontario, Friday the 8th day of February, 2002
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
NATALIA MAXIMENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
BACKGROUND
[1] Natalia Maximenko (the "applicant"), a citizen of the Russian Federation and Moldova, seeks a stay of her removal pending the determination of her leave application in which she challenges the October 2001 decision of Post-Claim Determination Officer M. Mayhew (the "PCDO") who found the applicant not to be a member of the Post-Determination Refugee Claimants Class in Canada ("PDRCC") because, in the PCDO's view, the applicant did not face an objectively identifiable risk to her life, of extreme sanctions or inhumane treatment if removed from Canada.
[2] The applicant's claim before the Refugee Division was a well-founded fear of persecution in Moldova stemming from her ex-husband's abuse, for which she is without state protection. Her ex-husband was a police officer who was trained in Moldova. The Refugee Division denied her claim on October 10, 2000 and leave from that decision was refused by a judge of this Court on February 13, 2001.
[3] The Refugee Division accepted the applicant had been abused by her ex-husband after she married him and were living in Moscow. She was found to be credible. It held, however, she had not fulfilled the onus on her to make reasonable attempts to obtain protection in Moldova before coming to Canada to seek international protection.
[4] The Refugee Division acknowledged there was little documentary evidence on recourse in Moldova for abused women. It pointed to the 1999 US DOS country report stating that women abused by their husbands have the right to press charges. It concluded her ex-husband's actions seeking her out in Moldova where she returned after the divorce and assaulting her father were criminal in nature, and he could have been charged had they been reported to the police.
[5] The Refugee Division concluded the applicant had not satisfied the onus on her to demonstrate that state protection would not be forthcoming if she had tried to obtain it.
[6] The PCDO found the applicant may be at risk if she returns to the same place where her ex-husband lives. However, the PCDO said she had a viable internal flight alternative in the Russian Federation or in Moldova. The PCDO was of the view her ex-husband continued to reside in Russia and there was insufficient compelling evidence to indicate any individual would be interested in pursuing the applicant or in targeting her for harm upon her return to Moldova.
[7] The PCDO concluded Moldova would not be unwilling to provide protection and access to an independent judicial system.
ANALYSIS
[8] To succeed, the applicant must establish (1) the existence of a serious issue to be argued; (2) the applicant would suffer irreparable harm if the interim injunction is not granted; and (3) the balance of convenience favours her in the sense she will suffer more harm than the respondent.
[9] I preface the analysis by agreeing with counsel for the respondent that the standard of review of the merits of a PCDO's decision is high, that of a patently unreasonable one. (See, Ozdemir v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1522.
[10] I am of the view the applicant has made out a case for the issuance of an interim injunction pending the determination of her leave application. On the first prong of the three-part test, the applicant has shown a serious issue to be argued in several ways.
[11] First, the IFA issue was not one before the Refugee Division and, as a result, there was no discussion in its reasons. The PCDO found one existed either in the Russian Federation or in Moldova. A serious issue arises whether he properly applied the IFA test, (see, Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (F.C.A.) and had the evidentiary basis to do so, whether the underlying state protection was established and whether in fairness the applicant should have had an opportunity to comment on this issue which had not been canvassed by the Refugee Division.
[12] The applicant, in her affidavits in support of this stay application, points to her residence registration which is Moldova which requires her to live there unless changed to Russia but to do so she would need to buy a house and is without means or her employer would provide housing but she cannot seek employment without having a residence registration in the region of prospective employment.
[13] Her affidavit speaks of housing shortages in Moldova which compels women from leaving abusive marriages.
[14] I agree with counsel for the applicant the Refugee Division did not determine the issue of the adequacy of state protection in Moldova for women subject to marital abuse notwithstanding it characterized her ex-husband's actions as criminal ones.
[15] The applicant points to country reports which conclude non protection of violence against women in Moldova. She raises a serious issue. I recognize the scope of this issue is limited and cannot constitute a collateral attack on the Refugee Division's decision where leave has been refused by a member of this Court.
[16] A serious issue has been made out on the two factual errors alleged, namely, her ex-husband's continued residence in Russia and the PCDO's finding her ex-husband did not attempt to contact her in the four months before she left for Canada despite the finding of fact made by the Refugee Division her ex-husband attacked her father in June of 2000 and her evidence at the hearing and in her affidavit he resides in Moldova.
[17] Irreparable harm has been made out particularly when the PCDO recognized the applicant would be at risk should she return to the place where her ex-husband lives since serious issues have been raised on the viability of an IFA, on the adequacy of state protection in Moldova and on her ex-husband's continuing interest in harming her.
[18] In the circumstance of serious issue and irreparable harm having been made out, the balance of convenience favours the applicant.
ORDER
1. For these reasons, a stay for the applicant's removal from Canada is granted pending determination of her application for leave and judicial review.
"François Lemieux"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5548-01
STYLE OF CAUSE: NATALIA MAXIMENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, FEBRUARY 4, 2002
PLACE OF HEARING: TORONTO, ONTARIO
AMENDED REASONS FOR ORDER
AND ORDER BY: LEMIEUX J.
DATED: FRIDAY, FEBRUARY 8, 2002
APPEARANCES: Mr. Arthur I. Yallen
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Yallen & Associates
Barristers & Solicitors
204 St. George St., 3rd Floor.
Toronto, Ontario
M5R 2A5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020208
Docket: IMM-5548-01
Between:
NATALIA MAXIMENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER
AND ORDER