Date: 20040217
Docket: IMM-477-03
Citation: 2004 FC 242
BETWEEN:
ROTISLAV WSOL aka ROSTISLAV WSOL,
PAVLINA WSOLOVA and DANIEL WSOL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "RPD") wherein the RPD determined the Applicants not to be Convention refugees. The decision under review is dated the 2nd of January, 2003. Notwithstanding that the date of the decision under review was after the date of the coming into force of the Immigration and Refugee Protection Act[1], by virtue of section 191 of that Act, since the Applicants' application for Convention refugee status was "...pending or in progress immediately before the coming into force of [section 191 of the Immigration and Refugee Protection Act]", and since "...substantive evidence had been adduced but no decision [had] been made..." before the coming into force of that Act, the Applicants' application was continued by the RPD under the Immigration Act[2] and thus, the issue of whether the Applicants were "persons in need of protection" within the meaning of section 97 of the Immigration and Refugee Protection Act did not arise.
BACKGROUND
a) The Applicants
[2] Rotislav Wsol (the "principal Applicant") and Pavlina Wsolova are husband and wife. They are the parents of Daniel Wsol who was, at all material times, a minor. All are citizens of the Czech Republic. They alleged a well-founded fear of persecution if required to return to the Czech Republic based on their political opinion. In addition, Pavlina Wsolova and Daniel Wsol also allege a well-founded fear of persecution based on membership on a particular social group, namely, as family members of a person, the principal Applicant, who was persecuted for exposing state corruption.
b) The events leading up to the Applicants' claim
[3] The RPD described the Applicants' allegations in the following terms:
The [principal Applicant] held the position of Chief of Command of the City Police in Karvina [in the Czech Republic]. In April 1997, he learned that four employees he supervised were implicated in corrupt activities, specifically by robbing businessmen who were well-known to the police as criminals. The [principal Applicant] and his immediate supervisor reported their subordinates' activities to the Chief of the Criminal Police. The Criminal Police are part of the State Police and are a separate division from the City Police. In the [principal Applicant's] presence, the Chief of the Criminal Police telephoned one of these criminals, dialing [sic] his number from memory. This indicated that the Chief was in league with the criminal who was allegedly robbed by the [principal Applicant's] subordinates.
The [principal Applicant] subsequently testified in the trials of his subordinates who were charged with robbery and abuse of authority. The [principal Applicant] became publicly known as a whistle blower. He described in court and to the media the Chief's telephone contact with the well-known criminal. The Chief denied his connection to the criminals. He was never disciplined and was subsequently promoted to a very senior government position, which he still holds. In December 1997, the press reported that one of the well-known criminals involved in the case was seeking an apology from the [principal Applicant] and was considering suing him.
The criminals involved in the case are in league with the former Chief of the Criminal Police. They and other corrupt police want revenge against the [principal Applicant] and his family members.
In January 1998, the [principal Applicant] started receiving anonymous phone threats. These included death threats and threats to mutilate his family and blow up his car. His car tires were slashed and a rock was thrown through the window of their house. In April 1998, at his wife's urging, the [principal Applicant] resigned from the police. In the fall of 1998, they left their home and moved in with his sister and her husband in Karvina. They continued to receive anonymous threats, including death threats. In October 1999, the claimants found their dog hanging from a tree. The same day they received a threat that they would end up the same way. In November 1999, two men in balaclavas unsuccessfully attempted to kidnap the minor claimant from their home.
The claimants cannot complain to the police because the [principal Applicant] blew the whistle on the Chief. Their official complaint mechanism through the Ministry of the Interior is ineffective because that Ministry is also corrupt.
The claimants left the Czech Republic on December 25, 1999.[3]
[4] The foregoing brief summary of the Applicants' allegations omits the background facts that the principal Applicant and his son spent a month in Canada with the principal Applicant's sister in May of 1998, following the principal Applicant's "whistle blowing" and his testimony in Court with the associated publicity, following the time when the family began to receive telephone threats and suffered other harassment and following the principal Applicant's resignation from the police at his wife's urging.
[5] The RPD records that, according to the principal Applicant's Personal Information Form, by the time he came to Canada in May of 1998, his wife was afraid their son would be hurt and she was terrified for the principal Applicant's life. The RPD notes that, while the principal Applicant and his son were in Canada, he apparently did not talk with his sister, herself a successful refugee claimant, about his family's problems in the Czech Republic.
THE DECISION UNDER REVIEW
[6] While the RPD accepted that the Applicants are citizens of the Czech Republic and, that the principal Applicant was a police officer who testified against police officers and gangsters and became known as a whistle blower, it rejected much of the Applicants' story. It wrote:
..., the panel does not believe central allegations of the claims, including that the claimants received death threats, had their tires slashed, had a rock thrown through their window, had their dog killed and were subjected to a kidnapping attempt.
The panel finds numerous and significant examples where the claimants showed behaviour inconsistent with that of persons fearing persecution. It also finds significant implausibilities for which the claimants did not provide reasonable explanations.[4]
[7] The RPD went on at some length to detail what it considered "behaviour inconsistent with that of persons fearing persecution" and "significant implausibilities for which the [Applicants] did not provide reasonable explanations."
THE ISSUES
[8] In the Applicants' Memorandum of Fact and Law, the issues on this application for judicial review are set out in the following terms:
- Did the [RPD] err in law in that it failed to consider whether the evidence it did accept as fact, established, that on a balance of probabilities there was more than a mere possibility that the Applicants faced a risk of persecution?
- Did the [RPD] err in law with respect to its findings that the Applicants had acted in a manner inconsistent with that of persons fearing persecution or that the Applicants had otherwise shown a lack of subjective fear?
- Did the [RPD] err in law with respect to its findings that the Applicants' evidence with respect to their alleged agents of persecution was implausible?[5]
ANALYSIS
[9] In effect, counsel for the Applicants on this application for judicial review, in argument on each of the issue questions just quoted, invited this Court to revisit the facts, reweigh the evidence that was before the RPD and to substitute its own interpretation of the totality of the evidence.
[10] That this is not the role of this Court on judicial review of what I am satisfied are essentially factual findings of the RPD was indelibly imprinted on the mind of this judge by a decision of the Federal Court of Appeal in Chen v. Canada (Minister of Citizenship and Immigration[6], where Justice Stone, for the Court, on a appeal of a decision of mine, wrote at paragraphs 5 and 7:
In our view what the appellant seeks by the introduction of the audio tape is a review of the determination of the Refugee Division that is not within the applicable standard of review imposed on the Trial Division. That standard, as we understand it, is not so broad as to have allowed Gibson J. to revisit the facts or reweigh the evidence. That this is so was made clear in S.C.F.P., Local 301 c. Québec (Conseil des services essentiels) where L'Heureux-Dubé stated for the Court at page 844:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: ... . Court must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable.
...
The point here is that the witness whose credibility was questioned by the Refugee Division was seen and heard by that body as triers of fact. As other triers of fact, they enjoyed unique advantages in coming to their findings and especially so in making findings upon an assessment of the witness's credibility. The peculiar role of triers of fact in assessing the credibility of a witness has been remarked upon by the courts through the years. ... [citations omitted]
[11] Both counsel referred me extensively to the transcript of the hearing before the RPD. It reflected explanations of the conduct of the principal Applicant and of his family members that the RPD might have reasonably found open and plausible but chose not to. Some of those explanations are appealing as they appear in black and white and taken out of the context of the totality of the evidence that was before the RPD. As tempting as it might be, it is not the role of this Court to reevaluate the principal Applicant's testimony.
[12] Having reviewed the tribunal record at some length, I can only determine that the conclusions drawn by the RPD on the basis of the material before it were reasonably open to it. Put another way, the totality of the evidence that was before the RPD, viewed reasonably, is capable of supporting the RPD's findings and conclusions, and whether or not I would have made the same findings and reached the same conclusions is quite irrelevant.
[13] Further, I am satisfied that the RPD's reasons, read as a whole, do not support a conclusion that the evidence that was before the RPD that it did accept as fact, might have been found to be sufficient to establish that, on a balance of probabilities, there was more than a mere possibility that the Applicants would face a risk of persecution if returned to the Czech Republic.
CONCLUSION
[14] Based on the foregoing very brief analysis, I am satisfied that this application for judicial review must be dismissed and, in due course, an order will go accordingly.
CERTIFICATION OF A QUESTION
[15] At the close of hearing of this application for judicial review, I reserved my decision and advised counsel that, following circulation of reasons setting forth my decision, an opportunity would be provided to them to make submissions on certification of a question. Counsel for the Applicants will have seven (7) days from the date of these reasons to serve and file any submissions considered appropriate on certification of a question. Thereafter, counsel for the Respondent will have seven (7) days to serve and file any responding submissions. Finally, counsel for the Applicants will have a further three (3) days to serve and file any reply submissions. Only thereafter will an order issue on this application for judicial review.
Frederick E. Gibson
J.F.C.
Ottawa, Ontario
February 17, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-477-03
STYLE OF CAUSE: ROTISLAV WSOL ET AL v. MCI
DATE OF HEARING: February 3, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER
AND ORDER BY: Gibson J.
DATED: February 17, 2004
APPEARANCES BY:
Mr. Clifford Luyt For the Applicant
Ms. Mielka Visnic For the Respondent
SOLICITORS OF RECORD:
Mr. Clifford Luyt
Czuma, Ritter
Toronto, Ontario For the Applicant
Ms. Mielka Visnic
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6 For the Respondent