Ivakhnenko v. Canada (Minister of Citizenship and Immigration), 2004 FC 1249

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2004 FC 1249

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Date: 20040915

Docket: IMM-2823-03

Citation: 2004 FC 1249

Ottawa, Ontario, this 15^th day of September, 2004

Present: The Honourable Justice James Russell

BETWEEN:

DMITRI ALEKSANDROVIC IVAKHNENKO

Applicant

and

THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1] This is an application for judicial review of a negative Pre-Removal Risk Assessment ("PRRA") decision of an Immigration Officer ("Officer") made on March 13, 2003 ("Decision"), and communicated to the Applicant on April 10, 2003.

BACKGROUND

[2] The Applicant is subject to a conditional removal order that became active following the refusal of his claim for Convention refugee status and the dismissal of his application for leave and judicial review of that claim.

[3] He is a citizen of Russia and was issued a visitor's visa on August 28, 1998. He entered Canada on September 7, 1998. His visitor period expired on March 6, 1999.

[4] He arrived in Canada to complete a business deal for the purchase of three Mercedes ML-320s on behalf of Alex Shitikov, Dmitri Menshikov and himself.

[5] At that time the Applicant had a small business in Russia buying and selling cars. Prior to that he was employed as a salesman by Adams Co., a company in the business of selling petroleum and metal products.

[6] In the course of his employment for Adams, the Applicant says that he learned that the company's General Manager, Oleg Adamkevich, was defrauding the Russian government of tax revenue. After the Applicant quit his job in early 1998, Mr. Adamkevich refused to pay him. In a fit of anger, the Applicant reported Mr. Adamkevich's activities to the police.

[7] The Applicant cooperated with the police in their investigation of Mr. Adamkevich who was eventually arrested and detained for his crimes.

[8] However, within three months, Mr. Adamkevich was released from jail and was angry with the Applicant. He contacted the Applicant and threatened his life. Shortly after that the Applicant left for Canada on business.

[9] After his arrival in Canada, the Applicant's business deal for the purchase of the Mercedes cars went sour and the Applicant lost $20,000USD of Mr. Shitikov's and Mr. Menshikov's money. He later unsuccessfully sued the vendor, Best Buy Cars.

[10] While the Applicant was in Canada, Mr. Adamkevich's threats continued, and the Applicant's family was threatened and harassed. In addition, Mr. Adamkevich's henchmen allegedly beat the Applicant's twin brother, Pavel, on more than one occasion. The Applicant's parents approached the police, but with little or no effect.

[11] In late 1999, Mr. Adamkevich was tried and found not guilty. He then managed to turn the tables and convinced the authorities to charge the Applicant with fraud.

[12] Even after his trial, Mr. Adamkevich continued to threaten and harass the Applicant's family. In addition, Mr. Shitikov and Mr. Menshikov wanted their money or their cars. When the Applicant advised them that the money had been lost, they threatened to kill him unless he returned to them double the deposit they had paid.

[13] The Applicant made a refugee claim in 1999 based on Jewish ethnicity. The claim was denied on March 29, 2001 because the Applicant's testimony was not believed. He presented unreliable documents to attempt to establish his claim to be part Jewish. There was no mention of fear of criminal reprisal as a basis for his claim. An application for leave and judicial review of the negative refugee claim decision was denied by the Federal Court on July 9, 2001. At that time, the Applicant became the subject of an enforceable removal order.

[14] There is no record or evidence of the Applicant ever having asked for a Post-Determination Refugee Claim in Canada ("PDRCC") to assess risk, or of his having made a Humanitarian and Compassionate ("H & C") application to attempt to regularize his immigration status in Canada.

[15] Notice of the pre-removal interview scheduled for December 17, 2001, was served on the Applicant by letter dated November 26, 2001 and was sent to his last known address where he had continued to reside at least as late as March 2002. The Applicant did not report for the interview.

[16] On February 4, 2003, the Applicant was detained by the police in Toronto on suspicion of stealing a CD. He was evasive and uncooperative during his arrest interview. He was detained at that time, although he has since been released. The police discovered that a warrant had been issued for the Applicant's arrest for failing to attend a pre-removal interview on December 17, 2001. The Applicant says this was the first time he had heard of such an interview because he did not receive any notice from Citizenship and Immigration Canada.

[17] When the Applicant was detained on February 4, 2003, he was also advised that a warrant had been issued for his arrest for fraud in Russia. He also has two criminal convictions in Canada for impaired driving and he has violated immigration legislation by working without authorization.

[18] On February 19, 2003, the Applicant submitted his application for a PRRA. He stated that he feared returning to Russia because of reprisals from Mr. Adamkevich, Mr. Shitikov, and Mr. Menshikov. He also said he feared being arrested and detained in Russia and subjected to inhumane prison conditions, abuse and police brutality.

[19] On March 6, 2003, additional PRRA submissions were filed.

DECISION UNDER REVIEW

[20] The negative PRRA Decision was made on March 13, 2003. The Applicant says that neither he nor his counsel were advised of this Decision until the Applicant's Detention Review hearing on April 10, 2003. Furthermore, he says that neither he nor his counsel were asked to review the Officer's report prior to a final determination of the PRRA.

[21] The Applicant was personally served with his PRRA Application in February 2003. He submitted it on February 19, 2003 and also made later submissions.

[22] The Officer did not provide a "draft decision" to the Applicant.

[23] The Applicant is of the view that it is the usual practice of PRRA officers to disclose their assessments for review by the person concerned prior to the issuance of the final report.

[24] On March 14, 2003, the Applicant had a Detention Review hearing. It was not disclosed at this hearing that the Applicant's PRRA application had resulted in a negative decision.

[25] On April 2, 2003, the Applicant's counsel requested disclosure of any documentation that was to be referred to at the Applicant's next Detention Review hearing which was scheduled for April 10, 2003. Counsel was advised that there were no documents to disclose.

[26] At the Applicant's Detention Review hearing of April 10, 2003, it was finally disclosed that the Applicant's PRRA was negative. It was also disclosed by the Minister's Representative that the Applicant was scheduled for removal on April 23, 2003.

[27] The Applicant alleges that, at first, the Minister's Representative insisted that the Applicant had been notified of the PRRA Decision and the removal decisions, but she offered no proof and refused to release the PRRA report to Young Lee of Lee Tomlinson, the Applicant's counsel at the hearing.

[28] The Applicant has been detained since February 4, 2003, on immigration hold. At the time of the PRRA Decision, he was being held at Millbrook Provincial Correctional Centre. Millbrook has facsimile facilities and is the location of a CIC office.

[29] On April 10, 2003, the Applicant's counsel requested a copy of the Decision. It was sent to a removals officer. It was also faxed to the Applicant in Millbrook and to his counsel on April 14, 2003.

[30] At the time of the April 10 Detention Review, neither the Applicant nor his counsel had received any notification of the Decision to remove the Applicant on April 23, 2003.

[31] The Applicant's removal from Canada scheduled for April 27, 2003, was stayed by order of Mr. Justice O'Reilly on April 25, 2003. Justice O'Reilly indicated that there was no basis for the allegation of bad faith on the part of the Officer.

[32] The information contained in the affidavit of the Applicant, sworn May 15, 2003, contradicts some of the information contained in FOSS. For example, the Applicant at paragraph 12 of his affidavit claimed that he was never in trouble with the police in Russia. However, the FOSS notes indicate that he admitted to being jailed in Russia prior to coming to Canada.

ISSUES

[33] The Applicant raises the following issues:

Did the Officer commit a reviewable error in refusing the Applicant's PRRA application in that:

a) he misinterpreted and misapplied s. 96 of IRPA;

b) he ignored or misconstrued relevant evidence, including but not limited to the overwhelming evidence of the horrendous and inhumane prison conditions in Russia;

c) he relied on extrinsic evidence in making his Decision that was not disclosed to the Applicant;

d) he acted in bad faith and without regard to the principles of fairness or natural justice when he failed to disclose his assessment to the Applicant for review, as was his habitual practice, or when he delayed informing the Applicant of his negative PRRA decision.

ARGUMENTS

Applicant

Preliminary Matters

[34] The Applicant says he fears for his life and well being should he return to Russia. He fears retribution at the hands of Mr. Adamkevich, Mr. Shitikov, and Mr. Menshikov. He also says that, upon his arrival in Russia, he will be immediately arrested and detained. Innocent or not, he argues that there is overwhelming evidence of barbarous Russian prison conditions which include exposure to AIDs and tuberculosis, unsanitary conditions, overcrowding, lack of food, as well as the widespread practice of torture by the authorities.

[35] The Applicant takes the position that there are two schools of thought regarding the appropriate standard of review for a PRRA or other post-claim risk assessment: the reasonableness simpliciter test and the patently unreasonable test. The Applicant says that, irrespective of the standard used, the Officer's Decision is reviewable and should be set aside (Mahroozadeh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 542 (T. D.); Sokhan v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 958 (T.D.); Sandhu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1874 (T.D.)).

Misinterpretation and Misapplication of IRPA

[36] The Applicant says that the Officer committed a reviewable error when he determined that the Applicant was not described in s. 96 of the Act.

[37] Section 96 IRPA provides as follows:

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,

(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or

(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

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) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;

b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.

[38] In accordance with s. 96, the Applicant submits that he is a member of a particular social group (police informants) and has a well-founded fear of reprisals from Mr. Adamkevich. These reprisals (beating, threats, murder) amount to persecution. He also says that the Russian police cannot or will not protect the Applicant from Mr. Adamkevich.

Ignoring and Misconstruing Evidence

[39] Section 97(1) of the Act states as follows:

97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or

(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

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

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,

(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'est pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée_:

a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;

b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant_:

(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,

(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,

(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,

(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.

[40] The Applicant submits that, in deciding that the Applicant did not meet the requirements of s. 97(1), the Officer dismissed the clear, substantial and uncontradicted evidence of torture by Russian police that appears in both the U.S. Department of State Report and the Home Office Report that were before the Officer. Credible accounts put the figure at 50%, and the abuse usually starts within hours of arrest.

[41] As regards s. 97(1)(b) of the Act, the Applicant says that the Officer had before him significant and persuasive evidence of the cruel and unusual treatment the Applicant would be subjected to upon his return to Russia.

[42] The Applicant says that, concerning his fears of criminal reprisals, the Officer had before him evidence of widespread criminal activity in Russia, the prevalence of organized crime in Russia, and the inability of the police to control such crime. In particular, the Home Office Report, despite the Officer's selective quotations, supports the position that organized crime is rampant in Russia and, in spite of attempts to improve the situation, the police are complicit or powerless to stop it.

[43] The Applicant submits that the Officer ignored or misconstrued the Applicant's submissions concerning the availability of police protection.

[44] In his report, the Officer wrote that the "Applicant's father went to the militia to complain and the threats [of Mr. Adamkevich] were stopped" and "because of this interaction and co-operation [the completion of the police questionnaire by the Applicant while in Canada] with the Russian authorities, he says the search for him was called off and the warrant voided." These statements were used by the Officer as examples of the efficacy of the Russian authorities.

[45] The Applicant points out that, in his submissions, he stated that the threats stopped for a short time after being reported to the police, but resumed and continue to this day despite the repeated requests of the Applicant's family for police assistance. In addition, a warrant for the Applicant's arrest (whether the original warrant or a newly issued warrant) is currently in effect and, once the Applicant returns to Russia, he will be arrested and detained pending trial. Rather than a demonstration of police effectiveness and strength, the Applicant says these incidents constitute proof of police incompetence, collaboration, and apathy.

[46] In deciding that the Applicant did not meet the terms of s. 97(1)(b) of the Act, the Applicant says that the Officer ignored the significant evidence concerning prison conditions in Russia, which are life threatening and constitute cruel and unusual punishment or treatment.

[47] According to the U.S. Department of State and the British Home Office, pretrial detention in Russia can last up to 5 years, although the average is 7-10 months. Eleven thousand (11,000) prisoners die annually in penitentiary facilities. There is widespread intra-inmate violence and abuse by guards. The conditions are extremely overcrowded and unsanitary. Disease is rampant, and more than 86,000 prisoners suffer from tuberculosis and 21,000 more are infected with HIV. There is inadequate medical care. Furthermore, the European Court of Human Rights has found that conditions in a Russian prison amount to cruel, inhuman, and degrading treatment. (Kalashnikov v. Russia, [2002] no. 47095/99 E.C.H.R. 2001-III (E.C.H.R.)).

[48] The Applicant says that, in light of the clear evidence before him, the Officer's conclusions in his PRRA report are patently unreasonable and fly in the face of all logic and evidence and should, therefore, be set aside.

Extrinsic Evidence

[49] The Applicant says the Officer relied on the Field Operational Support System ("FOSS") notes, which contained unfavourable observations and contradictory information about the Applicant.

[50] The Applicant argues that all materials relied upon by an Immigration Officer in making a PRRA or similar decision, apart from materials that are readily available to the public or provided by an applicant, must be disclosed to the person concerned for review and comment (Shah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1299 (C.A.) Ardiles v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1827 (T.D.)).

[51] The Applicant says that, by reviewing the FOSS notes (which were critical of the Applicant and raised questions about his credibility), and by failing to disclose the notes to the Applicant, the Officer violated the principles of fairness and natural justice.

Bad Faith and Unfairness

[52] The Applicant also submits that, in failing to provide a copy of his Decision to the Applicant or his counsel for review, as is the common practice, and only releasing the Decision days before the Applicant's scheduled deportation, the Officer acted in bad faith in rendering his negative opinion.

[53] The Applicant says the principles of fairness and natural justice required prompt service of the Decision on the Applicant, especially when a negative decision is, in almost every circumstance, followed quickly by removal.

[54] In the case of the Applicant, weeks passed before he was advised of the Decision and he did not receive a written copy of the Decision until 9 days before his removal.

[55] In light of the foregoing, the Applicant submits that the Decision is patently unreasonable, has no basis in law or fact, and that the Officer's actions violated the rules of fairness and natural justice.

Respondent

Preliminary Matters

[56] The Respondent submits that paras. 17-19 of the Tomlinson affidavit filed to support the Applicant ought to be given no weight. The deponent has not been qualified as an expert in the matters which form the subject of this application. Further, the information provided in those paragraphs and in Exhibits "F", "G" and "H" are not meaningful in that portions other than identifying information are blanked out in Exhibit "F". This means that their relevance to this case cannot be established.

[57] The Respondent also submits that para. 22 of the Tomlinson affidavit ought to be struck because it is not confined to facts that the deponent could testify to in Court. It represents opinion on the very issue to be decided by this Court and the deponent has not been qualified to give this opinion evidence.

Standard of Review

[58] The Respondent submits that the standard of review in this particular case is set out in s. 18.1 (4)(d) of the Federal Courts Act. Thus the Court should not intervene unless the Officer based his Decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before him (Federal Courts Act, s. 18.1(4)(d); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 1; [2002] S.C.J. No. 3, paras. 26-41.

[59] The PRRA is primarily a fact-specific weighing of many factors. As long as the Officer considered the relevant, appropriate factors from a risk perspective, the Court cannot interfere with the weight the Officer gave to the different factors, even if the Court would have weighed the factors differently (Suresh, paras. 34-37).

Onus on Applicant to Establish Risk

[60] In order to obtain a PRRA, the Applicant had to demonstrate that he was either a Convention refugee or a person in need or protection. While a PRRA was available to the Applicant, such an assessment is not performed automatically; the Applicant must apply for it and must establish his claim (IRPA, ss. 96, 97; Immigration and Refugee Protection Regulations, SOR/2002-227 ("IRPR"), ss. 160-163; see also: Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (F.C.A.), para. 25; Chen v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 341 at para. 22).

[61] In order to bring himself within s. 96 of the Act, the Applicant had to establish that there is a reasonable chance, or a serious possibility, that persecution would take place if he is returned to his country of origin. He was unable to meet his onus (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) at p. 597.

[62] In order to bring himself within s. 97 of the Act, the Applicant had to establish that removal to his country of origin would subject him personally: