Ottawa, Ontario, January 31, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
DMITRI ALEXEI TRUS
and
IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review by Anastasia Trus and Dmitri Trus challenging a negative decision by the Immigration and Refugee Board (Board) wherein their joint claim to refugee protection under the Immigration Refugee and Protection Act (IRPA), S.C. 2001, c.27, was denied.
Background
[2] The Applicants are Moldovan nationals but of Russian ethnicity. They came to Canada from Moldova in late 2004. Shortly after arriving here they claimed refugee protection based on allegations of persecution by Moldovan nationalists who wanted to expel Russian speakers from the country.
[3] Much of what the Applicants complained about were instances of discrimination and insulting behaviour directed at them by ethnic Moldovans. One of the two reported instances of direct persecutorial conduct identified by Mrs. Trus involved an assault on the street carried out by two young men when she said she was punched in the stomach, had paint thrown on her face and told to leave the country. The other alleged incident was a claim that their apartment had been deliberately burned in the summer of 2004. This arson fire was corroborated by police reports but, according to those reports, the identity of those responsible and their motives could not be ascertained. It was this incident that led the Applicants to come to Canada to join their son who had been granted refugee protection after arriving here from Moldova in 2000.
The Board Decision
[4] The Board rejected the Applicants’ claims to refugee protection because it found their testimony to be unreliable and because the Board concluded that they had failed to rebut the presumption of state protection.
[5] The Board’s adverse credibility ruling was based upon a few instances where the Applicants’ evidence was seen to be unreliable. For instance, the Board was concerned about Mrs. Trus’ testimony as to why they did very little to either follow up their complaints with the appropriate public authorities or to obtain police reports to verify the instances of threatening behaviour.
[6] The Board also expressed a concern about Mrs. Trus’ failure to confirm in her initial testimony that the apartment fire had been preceded by a knock on the door and a threat. The Board found this to be an important element of the Applicants’ case because it was the only evidence which established a persecutorial motive for the fire. It also stated that this should have been both a frightening and memorable experience which Mrs. Trus would have been unlikely to forget.
[7] The Board was also troubled by the inconsistency between the Applicants’ claims of persistent discrimination and persecution as ethnic Russians and the absence of documentary evidence to corroborate such conditions in Moldova. The available country condition reports indicated that ethnic Russians are one of the largest minority groups in Moldova and that the Russian language is widely spoken there. The Board relied upon a 2004 United States Department of State report which noted that Russian is a well-integrated second language which has constitutional protection as a language of instruction. That report also stated that Russian speakers were not discriminated against in the pursuit of educational or employment opportunities.
[8] In contrast to the documentary evidence, Mr. Trus testified that, every weekend, 7,000 to 8,000 young people gathered in the city square protesting against Russians living in Moldova. He went on to say that “the whole 8,000 spread in the city everywhere” screaming “Russia, luggage, station”. The Board was troubled by the fact that these massive, weekly protests were not corroborated by press or other third party reports and it, therefore, found Mr. Trus’ evidence to be implausible.
[9] The Board observed, as well, that during Mrs. Trus’ initial refugee examination at Etobicoke, she did not mention the alleged incident of being assaulted on the street and spoke only of the apartment fire and an assault upon her son.
[10] Because the Board disbelieved the Applicants’ testimony, it gave no weight to the documents they had tendered to corroborate the injuries suffered by their Moldovan son and to substantiate their apartment fire. The Board did not say that these incidents did not occur but only that Mr. and Mrs. Trus had failed to establish a persecutorial motive.
[11] The Board concluded its analysis by rejecting the fundamental premise of the Applicants’ claim that Russians are subjected to discrimination and persecution in Moldova.
Issues
[12] (a) What is the appropriate standard of review for the issues raised by the Applicants?
(b) Did the Board commit any reviewable errors in its decision to reject the Applicants’ claim to protection?
Standard of Review
[13] Most of the Applicants’ criticisms of the Board’s decision are directed at its credibility findings. It is well established that a credibility finding by the Board can only be set aside if it is found to be patently unreasonable: see Offei v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2000, 2005 FC 1619, especially para. 9, and Crespo v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 849, 2005 FC 672. The rationale for this heightened level of deference was articulated by the Federal Court Appeal in the often-cited case of Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, [1993] F.C.J. No. 732 where Justice Robert Décary stated:
4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[14] On the issue of state protection, the weight of the authorities indicates a standard of review of reasonableness, in large measure because the question is typically one of mixed fact and law: see Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, 2005 FC 193 at para. 11. The standard may, of course, still vary from case to case based upon the specific nature of the question raised; however, in this case, I have concluded that all of the Board’s findings are reasonable and well supported by the evidence and should not be disturbed.
The Board’s Credibility And Evidentiary Findings
[15] It was argued by the Applicants that the Board’s adverse credibility assessment of Mrs. Trus was patently unreasonable because it was based on a single incident of failed memory – that being her inability to recall the threat which preceded the fire at their apartment. If this was the sole basis for the Board’s rejection of Mrs. Trus’ testimony, the Applicants’ argument would have considerable strength. The argument founders, however, because it is quite obvious that the Board had a number of other credibility concerns which are well identified in its decision.
[16] It is also of some significance that this claimed lapse of memory by Mrs. Trus went beyond a failure to volunteer evidence of a preceding threat. Mrs. Trus was specifically asked by the Board if there was any prior warning before the fire and she responded in the negative. It was only after she was confronted by the inconsistency that she claimed to have forgotten the prior incident. The Board’s concern about this evidence was entirely reasonable. It was for the Board to determine the weight or significance to be given to this evidence in the overall assessment of Mrs. Trus’ credibility.
[17] The Applicants also contended that the Board’s adverse credibility assessment of Mr. Trus was insufficiently supported because it was based solely on the absence of independent corroboration of his testimony attesting to massive weekly protests against Russians living in Moldova. This argument lacks merit because this was the only evidence offered by Mr. Trus to the Board. There was simply nothing else available to the Board to support its credibility assessment of Mr. Trus or which might have shown him in a more positive light. It was open to Mr. Trus to testify more fully and he cannot complain if the single piece of evidence he offered was found by the Board to be implausible.
[18] The Applicants’ failure to follow up their complaints with the public authorities and to obtain comprehensive corroborating documents raised legitimate credibility concerns for the Board. That is so because the Applicants’ behaviour supported an inference that either the events in question had not occurred or were not as serious as the Applicants had claimed.
[19] The Applicants contend that the Board erred by failing to sufficiently consider the fact of their son’s successful refugee claim which was based upon allegations of ethnic persecution in Moldova in the 1990’s. Although the Board referred to this earlier claim in its decision, it did not factor into the Board’s analysis. The Applicants say that that omission constitutes a reviewable error because the Board was required to consider the situation of a similarly situated individual in assessing their claims.
[20] It is clear that the Board was cognisant of the earlier decision concerning the Applicants’ son. While it would have been preferable for the Board to have dealt with this evidence as part of its analysis, it was, having regard to its other findings, under no obligation to do so. The Board simply did not believe the evidence of Mr. and Mrs. Trus. Whatever may have been the situation of their son several years before, this evidence would not have rehabilitated their credibility or righted their testimonial deficiencies. Furthermore, if this evidence was of the import now attributed to it, it is inexplicable that their son was not called to testify before the Board. A Board decision in another case from some 6 years before has only tenuous probative value in an effort to contradict current country condition evidence. Here I rely upon the observation made by Justice Sean Harrington in Brown v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1575, 2006 FC 1250 where he offered a persuasive rationale for affording little weight to previous Board decisions in similar cases:
[3] ...Country conditions, often compiled from various sources, are, at least to some extent, matters of opinion in terms of the material included, and in the manner in which they are presented. Other material may have been omitted or downplayed. The decision of the Refugee Protection Division of the Immigration and Refugee Board, although presented as a finding of fact, is also largely a matter of opinion. The Court must take into account the deference owed the IRB and determine whether that decision is outside the boundaries set by the pragmatic and functional approach to judicial review. Myle and Henry are not binding as to what the situation is in St. Vincent. They are based on the material in a particular file, including the claimant's own history. As Mr. Justice Shore noted in Myle, each case turns on its own facts. The Minister argues this point strenuously since the record in this case as to country conditions is more recent than in Myle and Henry, and he submits that the situation has greatly improved.
[21] Here the Board drew a reasonable inference that, had the situation facing ethnic Russians in Moldova been as dire and as persistent as asserted by Mr. and Mrs. Trus, some corroborating evidence would have been expected from reliable third party sources. Indeed, if 8,000 young people mounted a weekly public protest in one of the cities of Moldova directed at an ethnic minority, some corroboration ought to have been readily available. The Board’s plausibility ruling on this issue of a lack of corroborating evidence is not only reasonable, it is compelling.
[22] One of the additional grounds for claiming relief on this application concerns the treatment of Mrs. Trus’ evidence and, in particular, the Board’s selective acceptance of portions of her testimony. The Applicants assert that it was improper for the Board to accept certain parts of that testimony but to reject other parts. For this they rely upon Huang v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 804, 2002 FCT 606. The principle recognized by Huang, however, is that the Board cannot reject certain evidence as unreliable but, at the same time, rely upon the same evidence for some other purpose. This is different from the Board accepting portions of a witness’ testimony as truthful but rejecting other portions of the testimony as untrustworthy. There is nothing at all wrong with the latter approach and, indeed, this is precisely what is expected of the trier-of-fact: This point is made in Gordon D. Cudmore, Civil Evidence Handbook, (Toronto: Thomson Canada, 1994) at para. 1.2(b)(ii) in the following passage:
In determining credibility, a trial judge is free to accept all, part or none of the evidence of any given witness. In weighing the evidence of any given witness, a trier of fact must use his or her collective common sense and wisdom.
State Protection
[23] The Applicants argued that the Board’s conclusion that they had not rebutted the presumption of state protection was unreasonable. They say that the Board placed too much emphasis on their failure to avail themselves of the state protection services offered by the Ombudsman. They assert that there was no evidence that the Ombudsman would have provided effective protection. They also complain that the Board failed to address the evidence of police brutality and the climate of impunity which protects the police from the consequences of their own misconduct.
[24] These arguments lack merit. It is clear from the record that Mr. and Mrs. Trus did very little to seek the protection of available state authorities. In Mrs. Trus’ Personal Information Form (PIF), she claimed that when she complained to the police about being assaulted on the street, she was told by the officer “they have nothing to do with it”. However, in her testimony to the Board, she said she was told by the officer “I will record it [your complaint] and I will check”. Although nothing apparently came of this complaint, the Board’s conclusion that the police had “nothing to go on to resolve the situation” is well-supported by the evidence offered by Mrs. Trus.
[25] When the Board asked Mrs. Trus if she had a reason for failing to obtain documents to corroborate all of her complaints to the police, she responded: “I don’t know”. When she was asked about her failure to lodge a complaint with the Ombudsman she said: “We’re old people. We don’t go to places like that”. The Board’s concern about the adequacy of these responses is well-founded. There was ample evidence to support the Board’s conclusion that the Applicants had not sufficiently availed themselves of the state protection options in Moldova.
[26] The Applicants complained that the Board needed to have evidence that the office of the Ombudsman was an effective institution before it questioned their failure to seek its protection. This argument lacks merit. Mr. and Mrs. Trus did not offer evidence of a lack of efficacy as a reason for not approaching the Ombudsman and it was up to them to establish that such a complaint would have been fruitless. Similarly, their reliance on evidence of police misconduct and impunity is misplaced. Their claim to protection was based on persecution by non-state parties and not by the police. Accordingly, the Board did not err by declining to draw a link between the evidence of police as the agents of persecution and the issue of their effectiveness in providing protection to citizens from criminal behaviour.
[27] It is clear from the authorities that the burden rested with the Applicants to establish that the state was unable to protect them. This point was recently confirmed by Justice James Russell in Dannett v. Canada, [2006] F.C.J. No. 1701, 2006 FC 1363 at para. 36:
36 The Board analyzed the issue of state protection having regard to the correct legal principles. In the absence of evidence of a complete breakdown in the state apparatus, the Applicant had to provide clear and convincing evidence that the state is unable to protect her: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1. Further, even a democratic government is not expected to be able to protect all its citizens at all times: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232, 99 D.L.R. (4th) 334 (F.C.A.).
[28] Here the evidence offered by Mr. and Mrs. Trus fell far short of meeting the above standard and the Board’s finding that they had failed to rebut the presumption of state protection is not only reasonable but virtually unassailable.
[29] Neither party proposed a certified question and no issue of general importance arises.
[30] This application for judicial review is dismissed.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
"R. L. Barnes"
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1761-06
STYLE OF CAUSE: ANASTASIA IOSIFOVNA TRUS AND DMITRI ALEXEI TRUS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 18, 2007
REASONS FOR JUDGMENT
AND JUDGMENT BY: BARNES J.
DATED: January 31, 2007
APPEARANCES BY:
Steven Beiles For the ApplicantS
Bernard Assan For the Respondent
SOLICITORS OF RECORD:
Steven Beiles
Barrister & Solicitor
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent