Date: 20100412
Docket: IMM-5307-08
Citation: 2010 FC 385
Ottawa, Ontario, April 12, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
OLEKSANDR
ANTONOVIVH MIKHNO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a
decision of a Canadian Border Services Agency (CBSA) officer (the officer),
dated October 29, 2008, which determined that the applicant would not be
subject to risk of persecution, danger of torture, risk to life or risk of
cruel and unusual treatment or punishment if returned to the Ukraine (the PRRA
decision).
[2]
The
applicant requests an order quashing the decision of the officer and remitting
the matter back to the CBSA for redetermination by a different officer.
Background
[3]
The
applicant is a citizen of the Ukraine. He came to Canada in 2000 and
subsequently claimed asylum based on Jewish nationality and perceived religion.
His ex-wife and daughter remain in the Ukraine.
[4]
The
applicant alleges that he started to receive threatening calls at his business
by aggressors who had found out that he was of Jewish decent. In 1998, he
alleges that his business was vandalized and that he was beaten but that the
police did not help him. He alleges that in 1999, he was beaten again and on
the advice of friends, he decided to come to Canada.
[5]
In
December 2002, his refugee claim was rejected. The Refugee Protection Division
of the Immigration and Refugee Board (the Board) found the applicant not
credible and not to be Jewish or perceived to be Jewish. The applicant did not
challenge this decision.
[6]
The
applicant has not left but has settled into life in Canada. The
applicant filed a humanitarian and compassionate grounds (H&C) application
in June of 2003 which was updated as recently as 2008.
[7]
In
2006, the applicant requested a pre-removal risk assessment (PRRA) which was
also based on risks to Jewish persons in the Ukraine. In December
of 2008, the applicant received the decisions denying the H&C application
and the PRRA application. The applicant has sought judicial review of both
decisions.
[8]
In
support of his PRRA application, the applicant submitted various documentary
evidence of anti-Semitism in the Ukraine as well as an affidavit
from a childhood friend, Lilian Tomovic, who confirmed his Jewish background
and a letter from his ex-wife who confirmed that anti-Semitic aggressors were
still after him and had recently threatened her.
[9]
The
officer granted little probative value to the applicant’s documentary evidence
because it did not explain or corroborate his allegations of persecution. The
officer also granted little probative value to the affidavit and letter.
Finally, the officer noted that the Board had rejected his claim for asylum on
the basis of its conclusion that the applicant had not demonstrated that he was
Jewish.
I note that the RPD
rejected the applicant’s asylum claim because it considered that he did not
demonstrate that he was Jewish. He affirmed, during his testimony that he did
not observe any Jewish traditions in Ukraine and has not alleged
that this has changed while in Canada. Taking into account that the allegations
put forward for this assessment are essentially the same, I grant a lot of
weight to the fact that the applicant has not addressed this important element
and to the Board’s decision.
[10]
She
then concluded:
The limited probative value of the
evidence submitted does not allow me to establish a change in the applicant’s
situation since the Board’s decision. Particularly, he has not addressed the
issue of his Jewish nationality, which is at the base of his application. In any
case, despite the incidents of anti-Semitism in Ukraine, the sources do not
indicate that individuals of Jewish nationality or those perceived to be, are
particularly targeted and face risks in that country. Also, the Ukrainian
government continues to take measures to fight the incidents of anti-Semitism.
Issue
[11]
Since
the parties agree that the appropriate standard of review is reasonableness,
the only issue before the Court is whether the officer’s decision was
reasonable.
Applicant’s Written Submissions
[12]
The
applicant submits that the officer misunderstood the evidence before her and
based her decision on her own speculations and unwarranted inferences.
[13]
The
applicant submits that it was a reviewable error for the officer to focus on
the issues raised by the Board instead of on the issues raised by the
applicant. In particular, the officer relied on the Board’s determination
regarding the applicant’s status as a Jewish person. Such reliance deprived the
officer of the collective mind to assess the evidence in a compassionate
manner.
[14]
The
applicant further submits that since the officer indirectly suggested that the
applicant was not credible, an oral hearing should have been convened.
[15]
The
applicant finally submits that the officer’s conclusion on the country
conditions in the Ukraine is against the preponderance of documentary
evidence and is therefore unreasonable.
Respondent’s Written Submissions
[16]
The
respondent submits that the officer’s decision was imminently reasonable.
Contrary to the applicant’s allegation, the officer did address the affidavit
of Liliana Tomovic and found that Ms. Tomovic does not claim to be a direct
witness to the applicant’s allegations and that her affidavit simply reiterates
the applicant’s assertions and did not provide any new information. Granting
the affidavit little probative value was also based on the fact that Ms.
Tomovic was not an uninterested source.
[17]
With
respect to the letter from the applicant’s ex-wife, the officer correctly noted
that she did not identify her aggressors or explain what their motivations
were. There was no objective evidence supporting her assertions. The officer
also noted that there was no evidence to show that the letter came from the Ukraine.
[18]
With
respect to the documentary evidence, the officer correctly noted that it had no
application to the applicant’s personal circumstances. There was simply no
evidence that the applicant faced a personalized risk. The documents submitted did
describe incidents of anti-Semitism, but the officer reasonably found that the
relevant facts were not materially different from the evidence which was before
the Board which had determined that the applicant was not Jewish.
[19]
Finally,
the respondent submits that there was no need for an oral hearing. The decision
was based on a finding that there was insufficient new evidence to rebut the
findings of the Board, not on a credibility finding.
Analysis and Decision
[20]
For
the reasons that follow, I am convinced that the officer’s decision was
reasonable.
[21]
The
primary argument raised by the applicant was that the officer improperly looked
to and relied on the findings of the Board. The applicant seems to contend that
the PRRA assessment should be a de novo assessment of risk. Yet, both
the Act itself and the case law reject this contention.
[22]
PRRAs
are significantly limited in scope. Indeed, subsection 113(a) of the Act
states:
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113. Consideration of an application for
protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
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113.
Il est disposé de la demande comme il suit :
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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[23]
This
clarifies that PRRA assessments are not appeals or reconsiderations of Board
decisions. They are only an assessment of the effect which new evidence may
have had on the Board decision in question. Factual and credibility conclusions
made by the Board are not to be revisited or reargued (see Yousef v. Canada
(Minister of Citizenship and Immigration), 2006 FC 864, [2006] F.C.J. No.
1101 (QL) at paragraphs 20 and 21, Kaybaki v. Canada (Solicitor
General of Canada), 2004 FC 32, [2004]
F.C.J. No. 27 (QL) at paragraphs 11 to 13, Mooketsi v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1401, [2008] F.C.J. No. 1814 (QL)
at paragraphs 10 and 11).
[24]
The
principle was appropriately stated by the Federal Court of Appeal in Raza v.
Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, 289 D.L.R. (4th) 675,
[2007] F.C.J. No. 1632 (QL), (Raza FCA) by Madam Justice Sharlow:
[13] As I read
paragraph 113(a), it is based on the premise that a negative refugee
determination by the RPD must be respected by the PRRA officer, unless there is
new evidence of facts that might have affected the outcome of the RPD hearing
if the evidence had been presented to the RPD….
[25]
Thus,
a standing Board decision will act as a starting point from which an applicant
may submit evidence of new developments. Deficiencies or concerns noted by the Board,
if not adequately addressed with new evidence, leave the reviewing officer
little choice but to render a negative decision.
[26]
The
officer in the present case made no error in using the Board’s decision as a
starting point and in comparing the new evidence submitted by the applicant to
the concerns and issues raised by the Board.
[27]
Determining
the adequacy of and the weight to afford to any particular piece of new
evidence is entirely within the purview of the officer, whose conclusions are
afforded significant deference. In Raza v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1385, 58 Admin. L.R. (4th) 283,
affm’d, 2007 FCA 385, 289 D.L.R. (4th) 675, Mr. Justice Mosley at paragraph 10
reviewed the law regarding the significant deference accorded to decisions of
PRRA officers:
[10] PRAA officers have a specialized
expertise in risk assessment, and their findings are usually fact driven, and
therefore warrant considerable deference: Selliah v. Canada (Minister of Citizenship and
Immigration),
2004 FC 872, 256 F.T.R. 53 at para.16 [Selliah]. Considerable deference
is owed to the factual determinations of a PRAA officer including their
conclusions with respect to the proper weight to be accorded to the evidence
placed before them: Yousef v. Canada (Minister of Citizenship and
Immigration), 2006 FC 864, [2006] F.C.J. No. 1101at para. 19 [Yousef].
In the absence of a failure to consider relevant factors or reliance upon
irrelevant ones, the weighing of the evidence lies within the purview of the
officer conducting the assessment and does not normally give rise to judicial
review: Augusto v. Canada (Solicitor General), 2005 FC 673, [2005]
F.C.J. No. 850, at para. 9.
[28]
In
the present case, the officer was willing to accept that much of the
applicant’s evidence was new. As such, she accepted and considered most of it
but determined that it did not adequately address the Board’s prime concern
that the applicant had not demonstrated that he was of Jewish decent and that
his oral evidence to the contrary was not credible.
[29]
The
applicant’s only piece of new evidence relevant to this concern was the
affidavit of Liliana Tomovic, which stated in part:
That I am aware that
Oleksandr still faces persecution in Ukraine in the hands of the
Anti-Semitic extremists because of his Jewish parentage through his mother.
[30]
The
officer provided the following reasons for affording little probative value to
the assertions:
Mrs. Tomovic does not
claim to be a direct witness to the applicant’s allegations. In this document,
she reiterates his assertions and does not provide new information. She is a
friend of Mr. Mikhno and it appears that she bases her assertions on his
testimony. Consequently, she cannot be considered as an uninterested and
objective source. …
[31]
While
another officer may have decided to afford slightly more weight to the
corroborating statement on slightly different reasoning, there are no grounds
to interfere with the officer’s factual conclusion. The applicant has not
raised any reason to believe the conclusion was made in a capricious or
perverse way. It is also possible that another officer would have rejected much
of the applicant’s evidence on the basis that it was not new.
[32]
The
officer made a similarly reasonable determination with regard to the letter
from the applicant’s ex-wife. The officer provided some reasoning for her
conclusion which clearly showed that she had regard for the evidence and the
applicant has not raised any reason to believe the conclusion was made in a
capricious or perverse way.
[33]
With
regard to the applicant’s documentary evidence on anti-Semitism in the Ukraine, the officer
correctly noted that nothing in the reports demonstrated a personalized risk to
the applicant. The officer also reasonably concluded that this evidence was not
materially different from the evidence which was before the Board. The
applicant has simply not provided any basis for a determination that the
officer’s conclusion on this point was not only incorrect but unreasonable.
Mere disagreement with her result is insufficient.
[34]
I
am also of the view that no oral hearing was required. The applicant had an
oral hearing before the Board. The Board found the applicant not credible in
his claim to be of Jewish decent or to be perceived to be Jewish. He did not
challenge that decision. Conducting an oral hearing at the PRRA stage would
only serve to revisit and attempt to re-hear that credibility conclusion of the
Board, with the same evidence that was before the Board; the applicant’s oral
testimony. As noted above, this is not the function of the PRRA assessment.
[35]
There
is no duty on the part of officers conducting PRRA assessments to hold an oral
hearing and often no utility in holding an oral hearing when sufficiency of
evidence is the central issue. A negative credibility finding by the Board does
not change this. It would be incongruous if in the absence of any new evidence concerning
the substance of the applicant’s refugee claim, the PRRA officer could reach a
conclusion inconsistent with the credibility finding made by the Board (see Saadatkhani
v. Canada (Minister of Citizenship and Immigration), 2006 FC 614, [2006]
F.C.J. No. 769 (QL) per Chief Justice Lutfy at paragraph 5, Yousef v. Canada
(Minister of Citizenship and Immigration), 2006 FC 864, [2006] F.C.J. No.
1101 (QL) at paragraphs 34 to 37, Selliah v. Canada (Minister of Citizenship
and Immigration), 2004 FC 872, 37 Imm. L.R. (3d) 263 at paragraph 27).
[36]
Clearly,
the Board had not been satisfied that the applicant was Jewish based on his
oral testimony. The PRRA hearing afforded the applicant a meaningful
opportunity to provide alternative evidence which may have swayed the Board
with respect to his ethnicity. Since he was not able to do so, the Board’s
credibility determination stands.
[37]
In
conclusion, the applicant does not point to any real error in the decision of
the officer and has not established either test for unreasonableness set out by
the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, [2008] S.C.J. No. 9 (QL) at paragraph 47. In any event, I
find that the decision was reasonable.
[38]
As
a result, I would dismiss the application for judicial review.
[39]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[40]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27
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11.(1) A
foreign national must, before entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document may be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
. . .
25.(1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
. . .
113.
Consideration of an application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
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11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi.
. . .
25.(1)
Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
. . .
113.
Il est disposé de la demande comme il suit :
a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
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