Date: 20100430
Dockets: IMM-2670-09
Citation: 2010 FC 474
Ottawa, Ontario, April 30,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ANNA
VALERIEVNA KLOCHEK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms.
Anna Valerievna Klochek arrived in Canada from Belarus in 2004. She
sought refugee protection on the basis that she had been forced into
prostitution and was sought by criminal elements at home. Given the close
association between criminals and the police in Belarus, she also
feared being falsely charged with an offence. A panel of the Immigration and
Refugee Board dismissed her claim, finding that her account of events was not
believable.
[2]
When
Ms. Klochek tried to obtain permanent residence in Canada, she learned
that she was inadmissible due to an outstanding Interpol warrant against her
for larceny. She then filed an application for a pre-removal risk assessment
(PRRA) and an application for humanitarian and compassionate relief (H&C).
Both applications were denied in 2009 by the same officer. This judicial review
relates to her PRRA. In a separate application (IMM-2672-09). I allowed her
application for judicial review of her H & C.
[3]
Ms.
Klochek argues that the PRRA officer erred by failing to hold a hearing,
ignoring evidence, and overlooking an important aspect of her application. I
will grant her application for judicial review as I agree with Ms. Klochek on
the latter point. It is unnecessary, therefore, to deal with her other
arguments.
II. The Officer’s
Decision
[4]
The
officer accepted that Ms. Klochek had presented a new risk allegation based on
the Interpol warrant. He described this as a matter of “lawful sanctions”. As I
interpret the officer’s reasons, he was referring to s. 97(1)(b)(iii) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27. (See Annex ‘A’
attached). According to that provision, a person who would otherwise be
recognized as a person in need of protection because of a risk to his or her
life, or a risk of cruel and unusual treatment or punishment, is not entitled
to protection if that risk is “inherent or incidental to lawful sanctions,
unless imposed in disregard of accepted international standards”.
[5]
The
officer then analyzed relevant documentary evidence relating to issues such as
arrest and detention, the availability of fair trials, and conditions in Belarus prisons.
Based on his review of the evidence, he could not conclude that sentences for
larceny in Belarus are
disproportionate to international standards.
[6]
With
respect to prison conditions, the officer referred to documentary evidence
indicating that:
• prison conditions
pose a threat to life and health;
• food, medicine,
clothing and bedding are in short supply;
• communicable
diseases are prevalent;
• overcrowding and
forced labour are common;
• prisoners who
complain are threatened, humiliated and blackmailed;
• many applicants for
parole must bribe prison personnel;
• alternative correctional
facilities exist.
[7]
The
officer acknowledged that there are problems with the correctional system in Belarus. However, he
noted the availability of alternative facilities, amnesties and parole, and
concluded that Ms. Klochek had not presented any new risk developments that
were not tied to lawful sanctions in Belarus. Further, there was
insufficient evidence “to demonstrate that country conditions have changed
significantly since the date of the decision of the Immigration and Refugee
Board”.
III. Did the
Officer Overlook an Aspect of Ms. Klochek’s Application?
[8]
As
I read the officer’s decision, he found that Ms. Klochek’s main allegation was
that she would suffer a risk to her life, or a risk of cruel or unusual
treatment or punishment, if she returned to Belarus to face a
charge of larceny. He concluded that this risk was tied to lawful sanctions. I
will assume, for present purposes, that this was a reasonable way of
characterizing her application.
[9]
The
question that must be addressed in respect of lawful sanctions is, as s. 97(1)(b)(iii)
states, whether those sanctions accord with accepted international sanctions.
The officer did consider whether the duration of any sentence Ms. Klochek might
have to serve would be disproportionate with international standards and found
there was insufficient evidence on the subject. He went on to consider prison
conditions but, as described above, found that any risk arising from serving a
prison term in Belarus was “tied to lawful sanctions” and, therefore, not an issue.
[10]
If
a person is to be denied protection because the risk to which he or she is
subject derives from a lawful sanction, the next question is whether that
sanction accords with accepted international standards. In my view, the officer
did not answer that question and, therefore, the officer failed to deal with an
important aspect of the risk to which Ms. Klochek would be subject if she
returned to Belarus.
[11]
The
officer’s failure to address this issue could be characterized as an error of
law, being an incorrect application of s. 97(1)(b), or as an
unreasonable dismissal of Ms. Klochek’s application, based on a failure to take
proper account of the evidence of prison conditions in Belarus. Either way,
the Court must intervene.
IV. Conclusion
and Disposition
[12]
The
officer failed to deal with an important question arising from Ms. Klochek’s
application. Accordingly, I must allow this application for judicial review and
order another officer to reconsider it. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex ‘A’
|
Immigration
and Refugee Protection Act,
2001, c. 27
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
...
(b) to a
risk to their life or to a risk of cruel and unusual treatment or punishment
if
…
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards
|
Loi
sur l'immigration et la protection des réfugiés, 2001, ch. 27
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’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée:
[…]
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
[…]
(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
|
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