2015 FC, 2015 FC 1297

Date: 20151120 Docket: IMM-8165-14 Citation: 2015 FC 1297 Toronto, Ontario, November 20, 2015 PRESENT: The Honourable Mr. Justice Shore BETWEEN: ROMAN KOSUMOV Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Introduction [ 1 ] The Applicant seeks judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA], of a decision rendered by the Refugee Protection Division [RPD] of the Immigration and Refugee Board, wherein the RPD rejected the Applicant’s claim for refugee protection under sections 96 and 97 of the IRPA. II.

Background [ 2 ] The Applicant, Roman Kosumov (age 28), is a citizen of Russia of Chechen ethnicity. The Applicant alleges that he was beaten numerous times in Russia by local skinheads from 2009 until he left Russia on December 15, 2010, because he is of Chechen ethnicity. The first beating occurred in January 2009; the police was called but never showed up. In April 2009, the Applicant was again beaten; he sought medical attention and reported the incident to the police. In September 2009, the Applicant was beaten and made a report at the police station.

For a fourth time, in February 2010, the Applicant was attacked by local skinheads; a doctor treated him after the beating and police was notified of the incident but never showed up. In August 2010, the Applicant was involved in an altercation with nationalists. The Applicant alleges that when the police intervened at the altercation, they detained him and took him to the police station because they recognized that he is Chechen; and, on his way to the police station, the police verbally and physically abused him; and, demanded that he pay a bribe or else he would be locked in a cell.

On December 15, 2010, the Applicant left Russia and arrived in Toronto on the same day and made a refugee claim in, or about, July 2011. [ 3 ] In a decision dated October 30, 2014, the RPD rejected the Applicant’s claim for refugee status pursuant to sections 96 and 97 of the IRPA . The RPD held that the Applicant lacked credibility as the RPD found that on the balance of the probabilities the Applicant concocted an elaborate story of personal persecution and persecution of his family by the Russian authorities and nationalists to bolster his claim for refugee status.

Furthermore, the RPD found that the Applicant failed to rebut the presumption of state protection in Russia. III. Issue [ 4 ] The central issue to be determined by this application for judicial review is: Did the RPD err in its finding that the Applicant lacked credibility? IV. Legislation [ 5 ] The following are the relevant legislative provisions of the IRPA : Convention refugee Définition de « réfugié » 96 . A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, 96 .

A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :

(

a) is outside each of their countries ofnationality and is unable or, by reason of thatfear, unwilling to avail themself of theprotection of each of those countries; or

a) soit se trouve hors de tout pays dont elle ala nationalité et ne peut ou, du fait de cettecrainte, ne veut se réclamer de la protectionde chacun de ces pays;(

b) not having a country of nationality, isoutside the country of their former habitualresidence and is unable or, by reason of thatfear, unwilling to return to that country.

b) soit, si elle n’a pas de nationalité et setrouve hors du pays dans lequel elle avait sarésidence habituelle, ne peut ni, du fait decette crainte, ne veut y retourner.Person in need of protection Personne à protéger97.

(1) A person in need of protection is aperson in Canada whose removal to theircountry or countries of nationality or, if theydo not have a country of nationality, theircountry of former habitual residence, wouldsubject them personally 97.

(1) A qualité de personne à protéger lapersonne qui se trouve au Canada et seraitpersonnellement, par son renvoi vers toutpays dont elle a la nationalité ou, si elle n’apas de nationalité, dans lequel elle avait sarésidence habituelle, exposée :(

a) to a danger, believed on substantialgrounds to exist, of torture within themeaning of

Article 1 of the ConventionAgainst Torture; or

a) soit au risque, s’il y a des motifs sérieux dele croire, d’être soumise à la torture au sensde l’article premier de la Convention contrela torture; (

b) to a risk to their life or to a risk of crueland unusual treatment or punishment if

b) soit à une menace à sa vie ou au risque detraitements ou peines cruels et inusités dansle cas suivant : (

i) the person is unable or, because ofthat risk, unwilling to avail themself of theprotection of that country, (

i) elle ne peut ou, de ce fait, ne veutse réclamer de la protection de ce pays, (ii) the risk would be faced by theperson in every part of that country and is notfaced generally by other individuals in orfrom that country, (ii) elle y est exposée en tout lieu dece pays alors que d’autres personnesoriginaires de ce pays ou qui s’y trouvent nele sont généralement pas, (iii) the risk is not inherent orincidental to lawful sanctions, unless imposedin disregard of accepted internationalstandards, and (iii) la menace ou le risque ne résultepas de sanctions légitimes — sauf cellesinfligées au mépris des normesinternationales — et inhérents à celles-ci ouoccasionnés par elles, (iv) the risk is not caused by theinability of that country to provide adequatehealth or medical care. (iv) la menace ou le risque ne résultepas de l’incapacité du pays de fournir dessoins médicaux ou de santé adéquats.

(2) A person in Canada who is a member of aclass of persons prescribed by the regulationsas being in need of protection is also a personin need of protection.

(2) A également qualité de personne àprotéger la personne qui se trouve au Canadaet fait

partie d’une catégorie de personnesauxquelles est reconnu par règlement lebesoin de protection. V. Position of the Parties [6] The Applicant submits that the RPD’s credibility findings are perverse and unreasonable and that a significant number ofdecisions of this RPD member have been overturned by this Court in the past. Moreover, some conclusions of the RPD are entirelygratuitous and unsupported by the evidence.

The RPD erred by dismissing the Applicant family members’ testimony and affidavitsimply because they originate from a member of the family of the Applicant (Teganya v Canada (Minister of Citizenship andImmigration), 2012 FC 42 at paras 22-23; Ndjizera v Canada (Minister of Citizenship and Immigration), 2013 FC 601 at paras 31-33).The RPD committed an overriding error by omitting the long held principle that sworn testimony of a refugee claimant is presumed to betrue, unless there is a good reason to doubt it (Maldonado v Canada (Minister of Employment and Immigration), (FCA), [1980] 2 FC 302).

Furthermore, the Applicant submits that the RPD made several findings that are without regard to, or incontradiction with, the testimony, evidence and documentary evidence. As well, the Applicant submits that the RPD made erroneousplausibility findings; and, did so without regard to the principle that plausibility findings shall only be made in the clearest cases(Divsalar v Canada (Minister of Citizenship and Immigration), 2002 FCT 653).

Finally, the Applicant submits that the RPD’s findingthat the Applicant did not rebut the presumption of state protection is interrelated and entirely dependent on the credibility finding of theRPD and, as a result of the unreasonable nature of the credibility findings, the RPD’s state protection finding cannot stand. [7] Conversely, the Respondent submits that this Court owes the highest degree of deference to the findings of credibility of theRPD unless the credibility findings are made capriciously or without supporting evidence or if the RPD fails to provide sufficient reasonsin clear terms as to how it reached its conclusions (Odetoyinbo v Canada (Minister of Citizenship and Immigration), 2009 FC 501[Odetoyinbo]).

As a result, the Respondent, in this case, submits that the overall decision of the RPD was reasonable; and, even if theRPD made an error in its credibility findings, it is reviewable only if the findings are so wrong that they taint all other findings ofcredibility or would vitiate the RPD’s decision as a whole (Agbon v Canada (Minister of Citizenship and Immigration), 2005 FC 1573).With regard to the issue of state protection, the Respondent submits that the RPD reasonably concluded that the Applicant did not rebutthe presumption of state protection with clear and convincing evidence.

As a result of the foregoing, the decision of the RPD isreasonable.

VI. Standard of Review [8] The RPD’s determination of credibility and weighing of evidence are to be reviewed under the standard of review ofreasonableness (Iqbal v Canada (Minister of Citizenship and Immigration), 2014 FC 415 at para 15). This Court owes the highest degreeof deference to credibility findings of the RPD unless such findings are capricious or without supporting evidence or if the RPD does notprovide sufficient reasons as to how it arrived at its conclusions (Elhassan v Canada (Minister of Citizenship and Immigration), 2013 FC1247 at para 25; Odetoyinbo, above at para 3). VII.

Analysis [9] After having reviewed the entirety of the record and having heard the parties, this Court is satisfied that the RPD’s decisionwas reasonable. [10] The RPD found significant discrepancies in the Applicant’s narrative which affect the Applicant’s credibility in addition to alack of any significant corroboration.

Specifically, the Applicant’s brother was unaware of the Applicant’s problems due to his ethnicity;a speculative understanding of the demise of his father; the lack of corroborative evidence regarding the September 2009 incident; thelack of mention of reasons for the attacks against the Applicant in the medical reports; the lack of medical records for the allegedassaults in Moscow; the Applicant’s delay in leaving Russia; and, the Applicant’s delay, once in Canada, in making a refugee claim. [11] Mindful that the RPD did commit reviewable errors in certain of its factual findings, nevertheless, there are so manycredibility issues which are significant on their face, that even a small number of these important credibility discrepancies would havebeen enough to seriously compromise the narrative of the Applicant and to discredit his allegations.

This Court has held that even if theRPD commits a reviewable error in certain of its factual findings, it is not sufficient, in and of itself, if there were other significant facts,related to the core of the claim, on which the RPD could reasonably base its ultimate decision (Stelco Inc. v British Steel Canada Inc., (FCA), [2000] 3 FC 282, [2000] FCJ No 286; Lin v Canada (Minister of Citizenship and Immigration), 2011 FC1235 at paras 59-60).

Such is the case here. [12] To summarise, the RPD has highlighted the major core credibility findings that, in and of themselves, clearly demonstrate thelack of credibility of the Applicant. VIII. Conclusion [13] For all the above reasons, the application for judicial review is dismissed. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review be dismissed. There is no serious question of generalimportance to be certified. "Michel M.J.

Shore" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8165-14 STYLE OF CAUSE: ROMAN KOSUMOV v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 19, 2015 JUDGMENT AND REASONS: SHORE J. DATED: November 20, 2015

APPEARANCES : Clifford Luyt For The Applicant Alex Kam For The Respondent SOLICITORS OF RECORD : Clifford Luyt Barrister and Solicitor Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada For The Respondent