Judgments

[1995] 1 F.C. 780

IMM-657-94

Viatcheslav Smirnov and Alexandra Pasko (a.k.a. Alexander Pasko) (Applicants)

v.

Secretary of State for Canada (Respondent)

Indexed as: Smirnov v. Canada (Secretary of State) (T.D.)

Trial Division, Gibson J.—Toronto, November 22; Ottawa, December 14, 1994.

Citizenship and Immigration — Status in Canada — Convention Refugees — Judicial review of CRDD decision applicants not Convention refugees — CRDD finding persecution, but insufficient evidence of state’s inability to protect — Necessity for clear and convincing evidence to rebut presumption of state ability protect — Question certified in view of conflicting F.C.T.D. case law on standard of effective police protection.

This was an application for judicial review of a CRDD decision that the applicants were not Convention refugees. The male applicant, a Jew from the Ukraine, based his claim to Convention refugee status on an alleged well-founded fear of persecution by reason of his religion and membership in a particular social group. The female applicant’s claim was based on her spouse’s. The male claimant cited several beatings, including one by his wife’s brothers which was not reported to the police, threats, vandalism, and dismissal from his job. The police declined to investigate. The CRDD held that the cumulative effect of the incidents was persecution, but that the evidence was insufficient to meet the requirement for clear and convincing proof to rebut the presumption of state ability to protect.

Held, the application should be dismissed.

The standard of “effective” police protection set out in Bobrik v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1364 (T.D.) (QL) was too high. Such a standard would be difficult to attain even in Canada and should not be imposed on other countries.

The applicants had sought protection only from front line police or militia personnel and by making one inquiry of a lawyer. It was open to the CRDD to conclude that applicant had not discharged the burden of the presumption of a state’s ability to protect.

In view of the conflicting Trial Division case law as to the standard for state protection, the following question should be certified: “Is evidence of further acts after the applicant has sought state protection, which acts together with acts prior to the time the applicant sought state protection, are determined by the Convention Refugee Determination Division to cumulatively constitute persecution of the applicant, ”clear and convincing proof“ sufficient to rebut the presumption of the state’s ability to protect the applicant?”

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2, s. 2 “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).

CASES JUDICIALLY CONSIDERED

NOT FOLLOWED:

Bobrik v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1364 (T.D.) (QL).

APPLIED:

Mendivil v. Canada (Secretary of State) (1994), 167 N.R. 91 (F.C.A.); Barkai v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1417 (T.D.) (QL); Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637 (C.A.) (QL).

DISTINGUISHED:

Kraitman et al. v. Canada (Secretary of State) (1994), 81 F.T.R. 64 (F.C.T.D.).

REFERRED TO:

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161; Canada (Minister of Employment & Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130; 150 N.R. 232 (F.C.A.); Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 153 N.R. 321.

APPLICATION for judicial review of a CRDD decision that the applicants were not Convention refugees in that the state’s inability to protect had not been established. Application dismissed.

COUNSEL:

Steven Cooper for applicants.

Marie-Louise Wcislo for respondent.

SOLICITORS:

Cooper and Cooper, North York, Ontario for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson, J.: These are my reasons in respect of an application for judicial review of a decision of the Convention Refugee Determination Division (the CRDD) of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning of section 2 of the Immigration Act.[1] The decision of the CRDD is dated of January 19, 1994.

The applicants are citizens of Ukraine. The male applicant, Mr. Smirnov, is Jewish. The female applicant, Ms. Pasko, claims to have no religious beliefs. The applicants are spouses. The male applicant bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to Ukraine by reason of his religion and membership in a particular social group. The female applicant bases her claim on her spouse’s religion and her membership in a particular social group.

The following summary of the evidence is extracted from the decision of the CRDD.

The male claimant was born in Kharkov in 1949, the female claimant in 1956. While the female claimant professes no religious faith, the male claimant is Jewish. The female claimant’s family ostracized the claimants after their marriage, because the male claimant is Jewish.

The male claimant was harassed by other students while he was in school. At his first job, obtained in 1967, he was beaten by co-workers. During his military service (1969-1971) he was discriminated against by officers and fellow soldiers. The male claimant ascribes all of this to his being Jewish.

On one occasion, the male claimant was beaten by his wife’s brothers. He did not report this incident to the police.

In July 1989, the male claimant was beaten by a group of thugs shouting anti-Semitic slogans. He was hospitalized for ten days thereafter, and then went and reported the incident to the police, who promised to conduct an investigation. The claimant checked back one month later, and was told that the matter was closed as the police had been unable to locate any suspects.

Beginning in May 1991, the claimants began receiving letters and telephone calls from persons making anti-Semitic remarks and threats. They reported this to the police but they declined to conduct an investigation.

In October, 1992, both claimants were fired from their jobs. The same month, a star of David was carved on their door. They reported this to the police, but were told that such acts of hooliganism were commonplace and that the police had more important matters to investigate.

In January, 1993, the female claimant was attacked by three thugs making anti-Semitic remarks. This matter was reported to the police, who promised to contact the claimants if they were able to find those responsible. The claimant checked back three weeks later, but the police told them not to bother them.

In June, 1993, the claimants left Ukraine and came to Canada where they advanced these claims to Convention refugee status.

The CRDD made no adverse finding with respect to the credibility of the applicants. Further, while it characterized “verbal slurs, ostracization, and anti-Semitic literature” as discrimination or harassment only, and minimized the fact that the applicants were both fired from their employment by reason of the male applicant’s religion, it acknowledged that the physical assaults on the claimants were of a far more serious character. It concluded as follows:

When all of the incidents are considered on a cumulative basis, we find that what the claimants experienced, and fear on a return to Ukraine, is persecution and not just discrimination.

Having reached the foregoing conclusion, the CRDD then turned to the issue of state protection. Counsel for the applicants before me argued that the issue of state protection is the sole issue in this matter. While counsel for the respondent raised as well the issue of standard of review and in this regard cited Canada (Attorney General) v. Public Service Alliance of Canada,[2] that issue was not pursued at any length and I am satisfied that nothing turns on it on the facts of this case and the analysis and conclusion of the CRDD.

The CRDD cites at some length from the documentary evidence before it. The citations relate both to the attitude of the state, at a policy and political level, towards anti-Semitism and to the quality and degree of protection afforded those who are victims of anti-Semitism. Counsel for the applicants argued that the citations were selective and unrepresentative of the actual balance in the documentary evidence. In support of this argument, he in turn cited a number of passages from the documentary evidence indicating weaknesses or failures in state protection of similarly situated individuals to the applicants in Ukraine and, indeed, in some circumstances, disinterest on the part of state officials. It is trite law that the CRDD is not required to refer to all of the evidence before it. On the other hand, it owes a duty to applicants for Convention refugee status to take a balanced view of the documentary evidence before it.

In this case, referring to the documentary evidence, the CRDD concluded:

The protection available in Ukraine is not perfect: there are instances of the police failing to respond to complaints of anti-Semitic violence. [Footnote omitted.]

It then went on to further conclude in the following terms:

However, in view of the foregoing, we do not find the evidence, in its totality, to be sufficient to meet the standard of clear and convincing proof required to rebut the presumption of a state ability to protect. Perfect protection cannot be expected, and as the Federal Court ruled in Villafranca,[3]

No government that makes any claim to democratic values of protection of human rights can guarantee the protection of all its citizens at all times. Thus it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation.

Turning to the claimants’ experiences, it is significant to note that the beating suffered by the male claimant at the hands of the brothers of the female claimant was not reported to the police. Yet this is the one incident wherein the identity of the attackers was known. With respect to the incidents of July 1989 and January 1993, the identity of the attackers is not known. If the police were not able to identify, locate and arrest those responsible, as appears to be the case, we cannot extrapolate therefrom that they refused to act because the male claimant is a Jew. Even if the particular police officer with whom the claimants dealt was anti-Semitic, it does not necessarily follow that all Ukrainian police officers are so inclined. To so find would be to impose an offensive stereotype on the entire police force of a nation.

One may certainly be of the opinion that Canadian police would be more energetic in investigating situations such as is before us. That does not qualify the claimants as Convention refugees.

As the Supreme Court stated in Ward,[4]

Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already.

Two recent cases in this Court were cited to me by counsel for the applicants. Both involved the issue of state protection and both involved Jewish refugee claimants, in the first case from Russia, and in the second from Ukraine. One of the issues in each of the cases was state ability or willingness to protect Jewish persons in Russia or the Ukraine.

The first case was Bobrik v. Canada (Minister of Citizenship and Immigration).[5] In her reasons for decision in that case, Madam Justice Tremblay-Lamer stated:

Thus, even when the state is willing to protect its citizens, a claimant will meet the criteria for refugee status if the protection being offered is ineffective. A state must actually provide protection, and not merely indicate a willingness to help. Where the evidence reveals that a claimant has experienced many incidents of harassment and/or discrimination without being effectively defended by the state, the presumption operates and it can be concluded that the state may be willing but unable to protect the claimant.

Further, Madam Justice Tremblay-Lamer stated:

That the large number of discriminatory and harassing incidents did not stop after the applicants sought police assistance provides sufficient evidence that the state in this particular case could not offer effective protection to the applicants.

With great respect, I conclude that Madam Justice Tremblay-Lamer sets too high a standard for state protection, a standard that would, in many circumstances, be difficult to attain even in this country. It is a reality of modern-day life that protection offered is sometimes ineffective. Many incidents of harassment and/or discrimination can be effected in a manner that renders effective investigation and protection very difficult. The use of unsigned correspondence that does not identify its source and of random telephone communications where the caller does not identify himself or herself are examples. A single incident of defacement of property is another. The applicants suffered from these types of incidents and received no satisfaction when they reported them to the militia or police. Random assaults, such as those suffered by the applicants, where the assailants are unknown to the victim and there are no independent witnesses are also difficult to effectively investigate and protect against. In all such circumstances, even the most effective, well-resourced and highly motivated police forces will have difficulty providing effective protection. This Court should not impose on other states a standard of “effective” protection that police forces in our own country, regrettably, sometimes only aspire to.

The second case was Kraitman et al v. Canada (Secretary of State).[6] In that decision, Mr. Justice Teitelbaum recited at some length the harassment, discrimination and beatings to which the Kraitman family was subjected. He reviewed the arguments put forward by counsel on both sides. He concluded relatively briefly in the following terms [at pages 71-72]:

This is a clear indication that Jews were not being offered the protection of the state, that is, Jews could not go to the police for protection. The police may have the ability to offer protection but where it chooses not to, this is equivalent to saying it is unable to provide protection to the applicants.

To state, as the board did, that the police response was reasonable, appears to me to be a statement by an individual or individuals with a total lack of understanding of the particular situation the applicants found themselves to be in.

It appears clear that the board members appear to lack an understanding as to the activities of the Pamyat, an organization according to the applicant that is anti-semitic and racist. It holds open meetings preaching their hatred and nevertheless the board makes little comment of this organization and in the manner in which this group attacked the applicant.

The board itself admits that there is a history of both discrimination and persecution in the Ukraine directed at Jews but believes that because the official policy of the country is alleged to be non-racist, the applicants (Jews) have nothing to fear for the future. How naive.

The case before me can be distinguished on the facts from the Kraitman case. There was little or no evidence before the CRDD in this matter that the police or militia chose not to offer protection in those circumstances where protection in the form of a police investigation, after the fact of the assault or other incident, might have been undertaken with any possibility of success. The investigations that were undertaken may not have been pursued with the diligence that the applicants here would have preferred. The reporting by police or militia to the claimants, when demanded, may not have been given with the sensitivity, understanding and respect that victims deserve. Unfortunately, that is too often the case, even here in Canada. Also unfortunately, it is sometimes the case, as I stated earlier, that with respect to certain offences, the police have little or no alternative but to determine not to investigate. Demands inevitably exceed the limits of resources and resources will often therefore be deployed where the chances of effective investigation, resulting in turn in real protection and deterrence, are greatest.

The evidence of discrimination in the services provided by police or militia to Jews as opposed to other citizens of Ukraine, in the matter before me, was limited. There was no direct evidence before the CRDD of the involvement of an organized anti-Semitic effort directed against the claimants although there certainly was evidence that the applicants strongly suspected the involvement of an anti-Semitic group.

I find nothing on the face of the decision of the CRDD in this matter that would indicate that solely because Ukraine is alleged to be non-racist, the CRDD is of the view that the applicants herein have nothing to fear in Ukraine for the future. Rather, the CRDD simply concluded in this matter as, I find, it was open to it to do, that the applicants failed to discharge the burden on them to establish that the state of Ukraine was unable to protect them, not in an absolute sense, but rather to a degree that was reasonable having regard to the circumstances of the applicants and the diabolical range of harassment, discrimination and beatings inflicted on them, even by members of their own family. The applicants failed to make any appeal for protection beyond the front line of police or militia personnel and one inquiry of a lawyer. It was, I conclude, open to the CRDD to decide that this was insufficient to constitute clear and convincing proof or clear and convincing confirmation of state inability to protect.

The onus on the applicants was a heavy one. In Mendivil v. Canada (Secretary of State)[7], in reasons concurring with the reasons for judgment of Madam Justice Desjardins, Stone J.A. stated [at page 97]:

A claimant who asserts a state’s inability to protect faces a difficult though not insurmountable problem of proof, …

After citing from Mr. Justice La Forest’s reasons in the Ward case, Stone J.A. went on to state [at page 97]:

In the present case, the evidence does not show that the situation is one of “complete breakdown of state apparatus”. Therefore, in order for the appellant to overcome the presumption that the state is capable of protecting him, he had to advance clear and convincing confirmation of the state’s inability to do so. Such proof might consist, for example, of testimony that “similarly situated individuals (were) let down by the state protection arrangement” or of “past personal incidents in which state protection did not materialize”.

In this matter, the evidence adduced by the applicants was largely drawn from their own experience although it extended to some extent to the experiences of similarly situated individuals, some of their friends, and to documentary evidence, much of which was in relation to persons not clearly similarly situated. As I stated in Barkai v. Canada (Minister of Employment and Immigration).[8]

I am content to rely upon the words of Mr. Justice Stone to the effect that a claimant who asserts a state’s inability to protect faces a difficult though not insurmountable problem of proof. On that statement of the test, I reach the same conclusion as did the CRDD. The applicants herein failed to meet the burden of establishing the state of Israel’s inability to protect them.

Here, of course, the state of Ukraine must be substituted for the state of Israel. In all other respects, I reach the same conclusion here. For the foregoing reasons, this application will be dismissed.

Counsel for the applicants proposed that I certify a question in the following terms:

Does a large number of discriminatory and harassing incidents not stopped after the applicants seek police assistance constitute sufficient evidence that the state could not offer effective protection to the applicants?

Counsel for the respondent recommended against certification of a question. I am loathe to certify a question in the terms proposed for two reasons. First, the question proposed describes a purely quantitative test based on a very vague quantity or number of incidents, and allows for no qualitative element in the test for state protection. Second, I am conscious of the direction recently provided by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Liyanagamage.[9]

In that decision, Mr. Justice Décary, speaking for the Court stated:

In order to be certified pursuant to subsection 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of “importance” by Catzman J. in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (Ont. H.C.)) but it must also be one that is determinative of the appeal.

While I am satisfied that this matter raises a serious question of general importance, particularly in light of the other recent decisions of this Court which I have cited and the different conclusion which I have reached from those decisions, I am not satisfied that the question proposed by counsel, if answered, would provide effective guidance. Further, I conclude that it simply would not be a question “determinative of [this] appeal.” I therefore will certify a question in the following terms:

Is evidence of further acts after the applicant has sought state protection, which acts together with acts prior to the time the applicant sought state protection, are determined by the Convention Refugee Determination Division to cumulatively constitute persecution of the applicant, “clear and convincing proof” sufficient to rebut the presumption of the state’s ability to protect the applicant?

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