Date: 20121206
Docket:
IMM-2764-12
Citation: 2012
FC 1431
Vancouver (British
Columbia), December 6, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
|
|
LYUBOV TERENTEVA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant is a citizen of Uzbekistan who seeks judicial review of a decision by
a Pre-Risk Removal Assessment [PRRA] Officer pursuant to section 112 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant
submits that the PRRA Officer unreasonably assessed the evidence in finding
that she did not have a well-founded fear of persecution under section 96 of
the IRPA and that she was not a person in need of protection under
section 97 of the IRPA. The Applicant further submits that the PRRA
Officer applied the incorrect test in determining if the documentary evidence demonstrated
that similarly-situated individuals in Uzbekistan fell within the scope of
sections 96 or 97 of the IRPA.
II. Judicial Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of a PRRA Officer’s decision, dated February 6, 2012.
III. Background
[3]
The
Applicant, Ms. Lyubov Terenteva, is a 77-year-old citizen of Uzbekistan.
[4]
The
Applicant alleges that she is in very frail health because she has broken both
hips and must walk with a cane, has high blood pressure, and has angina.
[5]
She
states that her entire immediate family is in Canada. Her daughter is a Canadian
citizen and her son applied for refugee protection in Canada on January 5,
2012.
[6]
She
also claims that she has no pension, savings, or home in Uzbekistan and cannot
work due to her age and poor health.
[7]
On
May 15, 2005, the Applicant alleges that Uzbek authorities asked her to sign a
friend’s death certificate stating that the friend died of a heart attack, even
though her friend died in a massacre in Andijan. She claims that she refused to
sign the certificate and the authorities threatened, persecuted, detained, and
starved her and that her neighbours, at the direction of the authorities, beat
her.
[8]
On
August 14, 2009, the Applicant’s husband died in a hospital in Uzbekistan. The
Applicant alleges that a nurse told her that her husband did not die of natural
causes but was instead killed by needle injection.
[9]
The
Applicant alleges that she subsequently received telephone calls from the
authorities, who admitted to killing her husband and threatened to kill her.
[10]
On
November 5, 2009, the Applicant came to Canada and on November 30, 2009, filed
for refugee protection on the basis that she had a well-founded fear of
persecution because she is Jewish.
[11]
On
February 23, 2011, the Refugee Protection Division [RPD] of the Immigration and
Refugee Board rejected the Applicant’s claim because it was not supported by
the documentary evidence and there were credibility issues.
[12]
On
May 18, 2011 the Applicant submitted her PRRA application which was rejected on
February 6, 2012.
[13]
On
March 9, 2012, the Applicant was admitted to a hospital with chest pains.
[14]
On
March 12, 2012, the Canada Border Services Agency granted the Applicant a
temporary deferral of removal until June 11, 2012, which would allow her
daughter to accompany her back to Uzbekistan.
[15]
On
March 21, 2012, the Applicant filed an application for judicial review of the
PRRA Officer’s decision.
IV. Decision under Review
[16]
The
PRRA Officer found that the Applicant did not have a well-founded fear of
persecution pursuant to section 96 of the IRPA because there was not a
reasonable chance that she would be at risk of persecution in Uzbekistan.
According to the PRRA Officer, the Applicant also was not a person in need of
protection under section 97 of the IRPA because, on a balance of
probabilities, she would not be personally subject to a risk to her life or to
a risk of cruel and unusual treatment or punishment.
[17]
The
PRRA Officer accepted that the documentary evidence had established that
government corruption and torture in prison exists in Uzbekistan. The PRRA Officer
also gave weight to documentary evidence in regard to the Andijan massacre and
government efforts to suppress public knowledge of the massacre.
[18]
The
PRRA Officer was prepared to give the Applicant’s narrative the “benefit of the
doubt” but did not accept that the documentary evidence was related to her
alleged risk of persecution (PRRA Decision at p 5). The PRRA Officer reasoned
that the documentary evidence did not demonstrate that individuals in a
situation similar to the Applicant were persecuted. Although there was evidence
that direct witnesses and victims of the Andijan massacre were targeted, it did
not demonstrate that friends of victims of the Andijan massacre were persecuted
or that authorities routinely asked friends and family to identify the victims
of the massacre.
[19]
On
general country conditions in Uzbekistan, the PRRA Officer accepted documentary
evidence that: (i) law enforcement and security officers routinely beat and
mistreated detainees to secure confessions or information and that government
measures to curb these activities were not successful; (ii) the Uzbek
government had increased the presence of security forces in response to the
Arab Spring movements; (iii) members of minority religious and Islamic groups
and human rights advocates were imprisoned after unfair trials; (iv) the Uzbek
authorities rejected international calls for an independent investigation of
the mass killings of protestors; (v) bribes are commonly paid for individuals
seeking to relocate in a new city; and (vi) many Uzbeks (primarily men of
working age) seek employment abroad.
[20]
In
rejecting the PRRA Application, the PRRA Officer determined that the Applicant
had not established that she was persecuted by the Uzbek state due to her
political beliefs or for any other reason. The PRRA Officer reasoned that there
is little supporting evidence that the Applicant traveled to Andijan City, that
her friend was killed in the Andijan massacre or even exists, or that the Uzbek
authorities had persecuted her in the past. Nor was there any medical evidence
or testimony from a friend or confidante to support her allegation that she was
detained in a basement by Uzbek authorities after refusing to sign the
fraudulent death certificate or that her husband was poisoned. The PRRA Officer
supported this finding by observing that the documentary evidence did not show
that individuals in similar circumstances to those of the Applicant faced a
risk of harm, persecution, or to life in Uzbekistan.
[21]
The
PRRA Officer also drew a negative inference from the Applicant’s failure to
seek international assistance or flee Uzbekistan in 2005 after her alleged
detention. According to the PRRA Officer, her failure to explain this delay did
little to establish a well-founded fear of persecution under section 96 of the IRPA
or that she was a person in need of protection under section 97 of the IRPA.
V. Issues
[22]
(1)
Was the PRRA Officer’s assessment of the evidence reasonable?
(2)
Did the PRRA Officer reasonably require the Applicant to adduce documentary evidence
that exactly replicated her own situation?
VI. Relevant Legislative
Provisions
[23]
The
following legislative provisions of the IRPA are relevant:
|
Convention
refugee
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.
Person
in need of protection
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.
Person
in need of protection
(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
|
Définition
de « réfugié »
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.
Personne
à protéger
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 :
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.
Personne
à protéger
(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
|
VII. Position of the Parties
[24]
The
Applicant submits that the PRRA Officer was unreasonable in finding that the
documentary evidence did not show that individuals in similar-situations were
at risk in Uzbekistan. Citing Morales v Canada (Minister of Citizenship and
Immigration), 2012 FC 49, the Applicant argues that the PRRA Officer had an
obligation to consider the risks faced by individuals in similar circumstances.
[25]
The
Applicant notes one report stating that doctors in the Andijan morgue assisted
in concealing the Andijan massacre by falsifying death records. According to
the Applicant, this is analogous to how authorities attempted to coerce her to
sign her friend’s death certificate. Another report also describes how Uzbek
authorities compelled family members of a person who died under arrest (in an
incident unrelated to the Andijan massacre) to sign a document promising not to
complain.
[26]
The
Applicant claims that a broader view of the documentary evidence supports her
claim that she was at risk. Such a view, she contends, shows that Uzbek
authorities undertook a campaign to eliminate witnesses of the Andijan massacre
and persons challenging the official account of it. The Applicant submits that
the documentary evidence was clear that these classes of persons are
at risk in Uzbekistan. The Applicant also argues that she belongs to both
classes by objecting to attempts to sanitize the death of her friend in the
massacre. The documentary evidence also demonstrates that individuals
advocating transparency generally in Uzbekistan have been persecuted
(especially those who give evidence of human rights violations in Uzbekistan)
and that relatives of former Andijan residents are under constant
observation by security forces.
[27]
The
Applicant argues that the PRRA Officer was unreasonable in concluding that she
did not identify with any of the risk groups in the general country conditions
research on Uzbekistan. According to the Applicant, refusing to sign the death
certificate at the compulsion of authorities qualifies her as a political
dissident, a group that is identified as at risk of persecution. The Applicant
asks this Court to apply Mansuri v Canada (Minister of Citizenship and
Immigration), 2009 FC 745, which held that a PRRA Officer was unreasonable in
determining that an applicant was not a member of a group at-risk despite evidence
that he was in fact a member of such a group.
[28]
In
the Applicant’s view, the PRRA Officer took an unreasonably narrow approach to
the evidence by distinguishing her situation from that of direct witnesses of
the Andijan massacre. Documentary evidence demonstrated that authorities
seeking to suppress memory of the massacre, persecuted, tortured, and killed
its witnesses. The Applicant argues that she need not witness the massacre
itself to qualify as a witness and that she became a witness when asked to
identify her friend’s body.
[29]
The
Applicant also submits that the PRRA Officer’s decision was unreasonable
because it focused on the absence of documentary evidence on the persecution
of family and friends of Andijan massacre victims and on whether the
authorities routinely invited family or friends to identify those victims at
the expense of the Applicant’s specific and core evidence that she had been
persecuted. Citing Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, the Applicant argues that the PRRA Officer
had a high burden of explanation for disregarding her evidence in light of its
relevance to her claim that she had been persecuted by authorities. The
Applicant also cites Nagaratnam v Canada (Minister of Citizenship and
Immigration), 2010 FC 204, wherein this Court held that a PRRA decision was
unreasonable because it had not assessed the documentary evidence against the
specific risks stated by an applicant.
[30]
Finally,
the Applicant contends that the PRRA Officer applied the incorrect test by
requiring her to adduce documentary evidence exactly replicating her own
circumstances. She cites Khodabakhsh v Canada (Minister of
Citizenship and Immigration), 2010 FC 1340, 382 FTR 105, wherein this
Court held that the RPD was unreasonable in requiring an applicant to adduce
documentary evidence on circumstances identical to his or her own. The
Applicant submits that this problem emerges in her case because the PRRA
Officer insisted on evidence demonstrating that friends of victims of the
Andijan massacre had been persecuted and were routinely asked to identify
bodies.
[31]
The
Respondent, relying on Ferguson v Canada (Minister of Citizenship and
Immigration), 2008 FC 1067, asserts that the Applicant has the burden of
proof in establishing that she has a well-founded fear of persecution or is a
person in need of protection. Whether the Applicant’s evidence meets the
evidentiary burden depends on the weight that the decision-maker gives to the
evidence. The Respondent argues that this Court must give deference as to how
PRRA officers assign weight.
[32]
The
Respondent submits that the PRRA Officer’s assessment of the evidence was
reasonable because the Applicant did not provide specific evidence that she was
personally persecuted by Uzbek authorities or neighbours and neither the
general country conditions evidence nor the documentary evidence with regard to
the Andijan massacre revealed that individuals in similar circumstances as the
Applicant were at risk in Uzbekistan.
[33]
The
Respondent
submits that the Applicant’s situation was not analogous to that of doctors in
the Andijan morgue. Although the Applicant stated that she was asked to
identify a victim of the Andijan massacre, there was documentary evidence that
it was “very rare” that relatives would come to the morgue to claim bodies of
victims (Applicant’s Record at p 61).
[34]
The
Respondent also argues that the PRRA Officer was reasonable in finding that the
Applicant was not a political dissident on the basis of her refusal to sign her
friend’s falsified death certificate. The Respondent submits that there
was insufficient evidence to link her narrative statement with the risks of
such persons or groups.
[35]
The Respondent
is of the view that the PRRA Officer did not apply the incorrect test by
requiring that the Applicant adduce documentary evidence identical to her own
circumstances. The Respondent submits that the PRRA Officer reviewed the
country conditions evidence and reasonably concluded that the Applicant’s
situation could not be reasonably compared to the situations of persons or
groups who had a well-founded fear of persecution or were persons in need of
protection.
VIII. Analysis
Standard of Review
[36]
The
PRRA Officer’s assessment of the evidence is reviewable on the standard of
reasonableness (Lakhani v Canada (Minister of Citizenship and Immigration),
2008 FC 656). Whether the PRRA Officer required evidence from the Applicant
that was too specific is also reviewable on this standard (Khodabakhsh, above).
[37]
Since
the standard of reasonableness applies, the Court may only intervene if the
Board’s reasons are not “justified, transparent or intelligible”. To satisfy
this standard, the decision must also fall in the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
(1) Was the
PRRA Officer’s assessment of the evidence reasonable?
[38]
In
proceedings under section 112 of the IRPA, the Applicant has the burden
of proving on a balance of probabilities that she has a well-founded fear of
persecution or is a person in need of protection (Ferguson, above, at
para 21 and 22).
[39]
The
Respondent argues that “[t]he determination of whether the evidence presented
meets the legal burden will depend very much on the weight given to the
evidence that has been presented” and that this Court must give deference as to
how a PRRA officer weighed the evidence (Ferguson, above, at para 24).
In the present case, the problems alleged by the Applicant do not relate merely
to the weight that the PRRA Officer assigned to the evidence, rather the
problems arise from the very reasoning that guided how the PRRA Officer
assigned the weight.
[40]
According
to her narrative statement, the Applicant was in a similar (though not
identical) situation as doctors in the Andijan morgue and witnesses of the
actual Andijan massacre. It was unreasonable for the PRRA Officer to find
otherwise. The Applicant witnessed the massacre differently than a person who
actually heard gunshots. Since viewing the body led to her becoming a target of
documented state efforts to suppress the memory of the massacre, her witness
(for the purposes of establishing risk) of the massacre was materially the same
as that of a direct witness.
[41]
The
PRRA Officer elected to give the Applicant’s narrative “the benefit of the
doubt” (TR, above at p 7); that is, the PRRA Officer accepted the
Applicant’s narrative statement that she refused to sign the falsified death
certificate on seeing her friend’s body, that she was detained and beaten for
refusing, and that her husband died in suspicious circumstances. Since the PRRA
Officer accepted that the Applicant had gone to the Andijan morgue, it was
irrelevant that the documentary evidence showed it was rare for family members
to go to the morgue after the massacre. If, as the PRRA Officer accepted,
the Applicant had attended at the morgue and was under compulsion to sign
a falsified death certificate, it would be unreasonable to find that her
position was not comparable to that of the doctors in the same morgue under
instruction to falsify the death records of victims of the Andijan massacre.
[42]
It
was also unreasonable for the PRRA Officer, after accepting the Applicant's
account, to find that she was not in a similar situation as the witnesses
of the Andijan massacre, who were at risk in Uzbekistan. The PRRA Officer
accepted the Applicant's claim that she saw the body of her friend who died at
the Andijan massacre. This was sufficient to make her a witness, even if she
had not been present at the massacre itself. Given the documentary evidence
that witnesses of the massacre were at risk in Uzbekistan and the Applicant's
own testimony regarding her treatment by the authorities, it falls outside the
range of possible and acceptable outcomes to find that she was not a person in
need of protection.
(2) Did the PRRA
Officer reasonably require the Applicant to adduce documentary evidence that
exactly replicated her own situation?
[43]
Khodabkhsh,
above, holds that a decision-maker who insists that an applicant adduce
documentary evidence on identical circumstances is unreasonable (at para 23).
In Khodabkhsh, the RPD required documentary evidence regarding lifelong
Muslims who had been threatened because their daughter had lived outside Iran for two decades and had converted to the Baha'i faith. In the present case, the PRRA
Officer required evidence of comparable specificity by finding that the
Applicant needed to provide evidence on the risk of friends of victims of the
Andijan massacre and evidence that such people were routinely asked to identify
bodies of the victims of that massacre.
[44]
This
Court observes in obiter that much of the PRRA Officer's conclusions
appear to be animated by an implicit adverse credibility finding. This point
was not argued by the parties and this Court will not dispose of the PRRA
Officer’s decision on that basis.
[45]
Even
though the PRRA Officer ostensibly accepted the Applicant's narrative
statement, parts of the decision can lead to the inference that the PRRA
Officer did not believe her. In particular, the PRRA Officer appears to seek
out corroborative documentary evidence regarding friends of victims of the
Andijan massacre for the purpose of testing the Applicant’s credibility. This
Court has held, in Strachn v Canada (Minister of Citizenship and
Immigration), 2012 FC 984, that notwithstanding the distinction between an
adverse credibility finding and a finding of insufficient evidence, it is
possible for a decision-maker to have “improperly framed true credibility
findings and findings regarding sufficiency of evidence” (at para 34). Indeed,
the PRRA Officer’s insistence on evidence demonstrating that friends and
relatives were routinely invited to the Andijan morgue to identify victims’
bodies strongly suggests that the PRRA Officer doubted the Applicant’s
narrative statement. If the PRRA Officer had believed that the Applicant
attended the Andijan morgue, such evidence would not be necessary.
[46]
This
aspect of the PRRA Officer’s decision comes into greater relief in the PRRA
Officer’s comments that the Applicant’s account is “[c]ontrary to her
statements of risk put before the RPD” and that “credibility issues were at
hand” in her proceedings before the RPD (PRRA Decision at p 4).
IX. Conclusion
[47]
For
all of the above reasons, the Applicant’s application for judicial
review is granted and the matter is remitted for determination anew (de novo)
by a different Immigration Officer.
JUDGMENT
THIS COURT
ORDERS that the
Applicant’s
application for judicial review be granted and the matter be remitted for determination
anew (de novo) by a different Immigration Officer. No question
for certification.
“Michel M.J. Shore”
Email this Content