Dockets: IMM-4466-15
IMM-4467-15
Citation:
2016 FC 464
Ottawa, Ontario, April 25, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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OXANA SITNIKOVA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant is a 31-year-old citizen of
Russia. She is a failed refugee claimant seeking protection from alleged
persecution on account of her identity as a lesbian or bisexual woman. These
applications for judicial review of an immigration officer’s negative decision
on her pre-removal risk assessment [PRRA] (IMM-4466-15) and the same officer’s
decision rejecting her humanitarian and compassionate application [H&C
application] (IMM-4467-15) were heard together.
[2]
For the following reasons, I find both decisions
to be unreasonable.
Background
[3]
In January 2008, the applicant entered Canada.
One month later, she made a refugee claim on the basis of her sexual
orientation which was rejected in September 2010, largely because the Refugee
Protection Division of the Immigration and Refugee Board [RPD] found her not to
be credible and found that she had failed to establish that she was lesbian.
[4]
In April 2012, the applicant married a Canadian
man who submitted an in-Canada spousal application on her behalf. The
sponsorship was withdrawn due to marital breakdown. The applicant claims that
she experienced domestic abuse at the hands of her Canadian spouse, who was
charged with assault in connection with the abuse in May 2012. Following the
breakdown of her marriage, the applicant converted her spousal application into
the H&C application.
[5]
In September 2012, the applicant submitted a
PRRA application. This application was considered alongside the H&C
application, by the same immigration officer who, in May 2013, rejected both.
The applicant sought judicial review of both decisions, but withdrew her
judicial review applications after the Minister of Citizenship and Immigration
agreed to have both the PRRA and H&C applications re-determined by a
different officer. It is that second officer’s decisions that are the subject
of these applications.
A.
The PRRA Decision
[6]
The officer’s findings in her PRRA decision
relating to the admission of evidence, her assessment of the evidence, and the
risk of persecution are all at issue in this application.
[7]
The officer considered letters and emails from
friends, family, and former girlfriends of the applicant, which were submitted
after her refugee hearing. According to paragraph 113(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27, a PRRA applicant whose refugee
claim 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.” The officer stated that:
I do not consider much of evidence presented
to be new evidence. Portions of the letters from family and friends that refer
to the applicant’s past experiences will not be considered as I find that it
could have reasonably been obtained and presented for consideration at her
refugee hearing.
[8]
The officer also considered a number of letters
and emails from the applicant’s family and neighbours. These letters recount
police harassment of the applicant’s family in Russia following her departure
to Canada. The applicant claims that this harassment was carried out at the
behest of a police officer who is the father of one of the applicant’s former
girlfriends. In one particularly egregious incident, police officers assaulted
the applicant’s grandfather, who suffered a heart attack and later died.
[9]
The officer noted that the letters “are all dated in early October 2012 and they coincide with
the timing of the applicant’s PRRA application.” The officer also noted
that none of the documents were sworn statements and that, while they are
consistent with the applicant’s story, they lack details. The officer also
noted that “[n]one of the writers indicate that they
sought to bring formal complaints against the harassing officers and if not,
why not.” Finally, the officer noted that:
…all the writers are close family or friends
with the applicant. Given all this combined with the previous credibility
concerns raised regarding the cited risk allegations, I find that the emails,
letters from the mother, sisters and neighbours are self-serving in nature and
offer little probative value. I assign this evidence very little weight.
[10]
The officer considered country condition
documents that set out the risks that LGBT individuals face in Russia. The
officer concluded that LGBT activists and openly gay persons are targeted:
The articles and documents submitted clearly
cite that LGBT activists, educators who are LGBT or engage in LGBT rights
activism outside of the workplace are targeted. People that are openly gay,
especially men, are subject to workplace discrimination and targets of physical
attack by homophobic members of society.
[11]
Applying these risk profiles to the applicant,
the officer held that:
Evidence submitted does not indicate that
the applicant was involved in LGBT activism, education or promotion of LGBT
rights in Russia prior to her departure from the country” [and] [t]he account
provided by the applicant about her experience in Russia suggests she was not
an openly gay or bisexual individual while living in Russia.
[12]
The officer concluded that:
The applicant may have had some friendships,
relationships or contacts with LGBT people in Russia and Canada. Taking into
account the current country conditions regarding attitudes and treatment of
sexual minorities, I find that the applicant may face some discriminatory and/
or negative social attitudes due to her relationships or associations with
LGBT people in Russia but I do not find that her personal circumstances are
similar to those members of the LGBT community in Russia that have been or are
currently being targeted or victims of persecutorial treatment. I find that
based on her personal circumstances and profile that there is no more than a mere
possibility that she will encounter discrimination or mistreatment due to her
sexual orientation or links to the LGBTQ community that would rise to the level
of persecution. [emphasis added]
B.
The H&C Decision
[13]
The officer’s assessment of the applicant’s risk
in the H&C decision is the same as the officer’s assessment of the
applicant’s risk of facing persecution in the PRRA decision. In particular,
the officer repeats her finding that, because the applicant is not involved in
LGBT activism and was not openly a member of the LGBT community in Russia; she
does not fall within a targeted group.
[14]
Similarly, in the H&C decision, the officer
dismisses some of the applicant’s evidence from her family and friends in part
because they “have a vested interest in the positive
outcome of this application.” This finding is very close to the
officer’s finding in the PRRA decision, that evidence from the applicant’s
family and friends should be discounted because it is “self-serving.”
[15]
One piece of evidence that the officer
considered in the H&C decision, but that was not mentioned in the PRRA
decision, was a psychological assessment of the applicant, dated November 30,
2012, by Dr. Celeste Thirlwell. The assessment found that the applicant had
complex post-traumatic stress disorder as well as depression characterized by
anxiety and suicidal ideation. It also found that the applicant required
treatment with antidepressants, cognitive behavioural therapy, and
interpersonal therapy. It concluded that the applicant would suffer
irreversible psychological and emotional damage if she were returned to Russia,
and would face a serious risk of suicide.
[16]
In considering this evidence, the officer noted
that the assessment was based on a single interview on October 31, 2012, rather
than on an ongoing therapeutic relationship. The officer also noted that the
assessment was based on information provided by the applicant and that there
was no indication that the applicant had sought out the “required” treatment since the interview. The officer
also noted that there was no evidence as to whether the applicant’s condition
had improved or how it had interfered with her day-to-day functioning, which
appeared to be normal. The officer concluded that:
[w]hile I find that the applicant may indeed
be struggling with some emotional and mental health challenges, there is no
evidence that the applicant is seeking treatment to improve the condition or
that her condition has prevented her from participating in a positive working
and social life.
As a result, I give little weight to this factor
in the global assessment.
Issues
[17]
The issue in each application is the same: Was
the officer’s decision reasonable?
Analysis
The PRRA Decision
[18]
First, the applicant submits that the officer
erred in excluding evidence from the applicant’s family, friends, and
girlfriends to the extent that it recounted events that preceded her refugee
hearing, on the grounds that this evidence should have or could have been
adduced before the RPD. She relies on the Federal Court of Appeal’s decision
in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA
385, [2007] FCJ No 1632 at paras 13-15 [Raza], where the Court provided
the following guidance on the application of paragraph 113(a) of IRPA:
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. Paragraph 113(a) asks a number of questions, some expressly and some by
necessary implication, about the proposed new evidence. I summarize those
questions as follows:
1. Credibility: Is the evidence
credible, considering its source and the circumstances in which it came into
existence? If not, the evidence need not be considered.
2. Relevance: Is the evidence
relevant to the PRRA application, in the sense that it is capable of proving or
disproving a fact that is relevant to the claim for protection? If not, the
evidence need not be considered.
3. Newness: Is the evidence new in
the sense that it is capable of:
a. proving the current state of affairs in the country of
removal or an event that occurred or a circumstance that arose after the hearing
in the RPD, or
b. proving a fact that was unknown to the refugee claimant
at the time of the RPD hearing, or
c. contradicting a finding of fact by the RPD (including
a credibility finding)?
If not, the evidence need not be considered.
4. Materiality: Is the evidence
material, in the sense that the refugee claim probably would have succeeded if
the evidence had been made available to the RPD? If not, the evidence need not
be considered.
5. Express statutory conditions:
a. If the evidence is capable of proving only an event that
occurred or circumstances that arose prior to the RPD hearing, then has the
applicant established either that the evidence was not reasonably available to
him or her for presentation at the RPD hearing, or that he or she could not reasonably
have been expected in the circumstances to have presented the evidence at the
RPD hearing? If not, the evidence need not be considered.
b. If the evidence is capable of proving an event that
occurred or circumstances that arose after the RPD hearing, then the evidence
must be considered (unless it is rejected because it is not credible, not
relevant, not new or not material).
The first four questions, relating to
credibility, relevance, newness and materiality, are necessarily implied from
the purpose of paragraph 113(a) within the statutory scheme of the IRPA
relating to refugee claims and pre removal risk assessments. The remaining
questions are asked expressly by paragraph 113(a).
I do not suggest that the questions
listed above must be asked in any particular order, or that in every case the
PRRA officer must ask each question. What is important is that the PRRA
officer must consider all evidence that is presented, unless it is excluded on
one of the grounds stated in paragraph [13] above.
[emphasis added]
[19]
The applicant’s submission that some of the
excluded evidence contradicts a finding of fact by the RPD, and is therefore “new” evidence, according to paragraph 3(c) of the
test in Raza is not accepted. The applicant ignores the other parts of
the test in Raza. In particular, she ignores paragraph 5(a), which
states that an applicant may only adduce evidence that was not reasonably
available, or could not reasonably have been presented, at the RPD hearing.
This is the criterion that the officer invoked when she stated that “[p]ortions of the letters from family and friends that refer
to the applicant’s past experiences will not be considered as I find that it
could have reasonably been obtained and presented for consideration at her
refugee hearing.” Having found that portions of the applicant’s
evidence were inadmissible under paragraph 5(a) of the Raza test, there
was no need for the officer to consider whether that evidence was “new” within the meaning of paragraph 3(c). It was
excluded evidence under paragraph 5(a).
[20]
The applicant cites this Court’s decision Elezi
v Canada (Minister of Citizenship and Immigration), 2007 FC 240, [2008] 1
FCR 365 [Elezi] which contains a statement that PRRA officers have
jurisdiction to admit evidence notwithstanding that it reasonably could have
been adduced before the RPD.
[21]
Relying on Elezi, the applicant says that
the officer erred in failing to consider whether the evidence she adduced
should be admitted, even if it reasonably could have been adduced before the
RPD. However, Elezi pre-dates Raza, and Raza is clearly
now binding on this Court. Moreover, the broad approach to admissibility expressed
in Elezi has not been followed in subsequent jurisprudence: see, for
example Deri v Canada (Minister of Citizenship and Immigration), 2015 FC
1042, 256 ACWS (3d) 902, at para 61 and Rodriguez Torres v
Canada (Minister of Citizenship and Immigration), 2015 FC 888, 256 ACWS (3d) 397, at para 31.
[22]
Second, the applicant submits that the officer
erred by assessing evidence based on what it does not say, rather than on what
it says. For example, the officer discounted letters describing the police
harassment of the applicant’s family because “[n]one of
the writers indicate that they sought to bring formal complaints against the
harassing officers and if not, why not.”
[23]
I agree. In Belek v Canada (Minister of
Citizenship and Immigration), 2016 FC 205 at para 21, I held that:
...documents that corroborate some aspects
of an applicant’s story cannot be discounted merely because they do not
corroborate other aspects of his story: Mahmud v Canada (Minister of
Citizenship & Immigration), 167 FTR 309 at paras 8-12 [Mahmud].
Here the RAD assigns little weight to a letter that corroborates some of the
applicant’s story simply because it fails to provide details that would further
corroborate his story. The RAD fails to explain why it would be reasonable to
expect these further details to have been provided, such that a negative
inference can be drawn from their absence: See Taha v Canada (Minister of
Citizenship & Immigration), 2004 FC 1675 at para 9. Absent such
justification, the RAD’s treatment of this document is unreasonable.
[24]
This reasoning applies in the present case. If
the letter writers had mentioned that they had complained about police
harassment and no action was taken, then this might have corroborated the
applicant’s claim that the police are, at best, indifferent to her
persecution. However, the mere fact that the letter writers did not mention
this is no reason to discount the evidence that they did provide.
[25]
The applicant also complains that the officer
erred when she dismissed letters and emails from the applicant’s family and
friends on the basis that they were “self-serving.”
The applicant submits that evidence should not be discounted simply because it
comes from individuals who are inclined to support the applicant. This is
especially true when the evidence is of a personal nature, and so cannot be
expected to come from disinterested strangers.
[26]
If this was the only basis on which the letters
were given little weight, then I would agree with the applicant. However, the
officer did not discount the applicant’s evidence solely because it came from
individuals who support the applicant. The officer also cited credibility
concerns about the applicant, as well as weaknesses in the letters themselves,
including their lack of detail and the fact that they were not sworn
statements. After considering all of these factors, the officer concluded that
the letters had been engineered to support the applicant’s claim. I cannot say
that this assessment was unreasonable.
[27]
Third, the applicant submits that the officer
erred in holding that she will not be persecuted in Russia because, although
openly LGBT people are persecuted, the applicant was not openly lesbian or
bisexual when she was in Russia (and presumably will not be openly lesbian or
bisexual if she returns). The applicant claims that, by expecting her to
conceal her sexual orientation in order to avoid persecution, the officer has
simply replaced one persecutory consequence (violence and discrimination) with
another (enforced suppression of an innate characteristic). This has
previously been found to be a reviewable error by this Court: see for example, Fosu
v Canada (Minister of Citizenship and Immigration), 2008 FC 1135 , [2008] FCJ No. 1418, at para 17, and Antoine v
Canada (Minister of Citizenship and Immigration), 2015 FC 795, 258 ACWS (3d) 153, at para 23).
[28]
The respondent takes issue with the applicant’s
characterization of the officer’s reasoning on this point. According to the
respondent, the officer did not imply that the applicant could avoid
persecution by concealing her sexual orientation. To the contrary, the officer
found that, even if the applicant was open about her sexual orientation, she
would not face persecution. The respondent points to the officer’s ultimate
conclusion that the applicant may face some discriminatory or negative social
attitudes as a result of her associations with LGBT people, but that this will
not amount to persecution.
[29]
The applicant says that when the officer
referred to her facing discrimination as a result of her associations with members
of the LGBT community, the officer was talking about discrimination that would
arise merely from the applicant associating with openly LGBT people, rather
than the more serious discrimination that would result if she herself was
openly as lesbian or bisexual. The applicant denies that the officer found
that she could avoid persecution while being openly lesbian or bisexual.
[30]
The officer’s reasoning on this point is
ambiguous. On one reading, the officer found that the applicant will avoid
persecution only if she is not openly lesbian or bisexual. On the other
reading, the officer found that the applicant will avoid persecution even if
she is openly a member of the LGBT community. If pressed, I would conclude
that the officer likely meant to say that applicant will avoid persecution only
if she is not openly lesbian or bisexual. As noted, that manner of examining
risk based on sexual orientation has been rejected and the officer’s decision would
be in error.
[31]
Regardless, the ambiguity of the reasoning is,
in itself, a problem. As the Supreme Court observed in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 “reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process.” The officer’s
reasoning on this point lacks the intelligibility that the reasonableness
standard demands.
[32]
In summary, the officer’s PRRA decision is
unreasonable because she improperly assessed the evidence based on what it does
not say, arguably required the applicant to remain closeted in order to avoid a
risk of persecution, and in any event, provided unintelligible reasoning on the
applicant’s risk. It will be set aside.
The H&C Decision
[33]
As noted above, the officer’s analysis of the
applicant’s risk in the H&C decision is virtually identical to her analysis
of the applicant’s risk in the PRRA decision. This analysis is therefore
unreasonable for the reasons outline above.
[34]
Although the officer’s H&C decision must be
quashed as unreasonable based on the risk analysis alone, given that the
application will be reconsidered by another officer I will briefly comment on the
applicant’s other submissions that the H&C decision is unreasonable for the
sake of completeness.
[35]
The applicant submits that the officer erred in
discounting Dr. Thirlwell’s report on the basis that the applicant had not
sought the required treatment mentioned in the report. The applicant also
submits that the officer ignored Dr. Thirlwell’s evidence that the applicant
would suffer irreversible psychological and emotional damage if she were
returned to Russia. In support of these arguments, the applicant cites the
Supreme Court’s decision in Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2015 SCC 61, [2015] SCJ No 61 at paras 47-48 [Kanthasamy],
where the Court held that:
Having accepted the psychological diagnosis,
it is unclear why the Officer would nonetheless have required Jeyakannan
Kanthasamy to adduce additional evidence about whether he did or did not seek
treatment, whether any was even available, or what treatment was or was not
available in Sri Lanka. Once she accepted that he had post-traumatic stress
disorder, adjustment disorder, and depression based on his experiences in Sri
Lanka, requiring further evidence of the availability of treatment, either in
Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect
of making it a conditional rather than a significant factor.
Moreover, in her exclusive focus on whether
treatment was available in Sri Lanka, the Officer ignored what the effect of
removal from Canada would be on his mental health. As the Guidelines indicate,
health considerations in addition to medical inadequacies in the country of
origin, may be relevant: Inland Processing, s. 5.11. As a result, the very
fact that Jeyakannan Kanthasamy’s mental health would likely worsen if he were
to be removed to Sri Lanka is a relevant consideration that must be identified
and weighed regardless of whether there is treatment available in Sri Lanka to
help treat his condition: Davis v. Canada (Minister of Citizenship and
Immigration), 2011 FC 97 (CanLII), 96 Imm. L.R. (3rd) 267 (F.C.); Martinez
v. Canada (Minister of Citizenship and Immigration), 2012 FC 1295 (CanLII),
14 Imm. L.R. (4th) 66 (F.C.). As previously noted, Jeyakannan Kanthasamy was
arrested, detained and beaten by the Sri Lankan police which left psychological
scars. Yet despite the clear and uncontradicted evidence of such harm in the
psychological report, in applying the “unusual and undeserved or
disproportionate hardship” standard to the individual factor of the
availability of medical care in Sri Lanka — and finding that seeking such care
would not meet that threshold — the Officer discounted Jeyakannan Kanthasamy’s
health problems in her analysis [emphasis added].
[36]
The present case is distinguishable from Kanthasamy
in that, unlike the officer in that case, the officer in the case at bar did
not appear to accept the psychological diagnosis.
[37]
In other words, the officer did not impugn Dr.
Thirlwell’s clinical judgment; she simply found that the story upon which her
diagnosis was based not to be credible, and that the applicant’s subsequent
behaviour was not that of one who is seriously ill and in need of the treatment
that Dr. Thirlwell claimed is “required.” This
is not an unreasonable assessment of the report’s evidentiary value.
[38]
The applicant also submits that the officer
erred in assessing her evidence based on what it does not say, rather than on
what it says. I agree that the officer sometimes committed this error. For
example, the officer discounted a letter from the applicant’s former
girlfriend, in part because the letter does not attach “objective
evidence” that her father is a police officer. In doing so, the
officer appeared to ignore what the letter did say, which is that he is a
powerful and connected police officer who blames the applicant for his
daughter’s sexual orientation, and who regularly sends police officers to
search for the applicant and harass her family.
[39]
Other examples of this error are alleged by the
applicant; however, I am not convinced that they are such. For example, the
officer assigned low weight to an email from another former girlfriend partly
because she did not actually witness an alleged homophobic assault of the
applicant that she recounts in the email. In doing so, it could be said that the
officer erred by discounting the email based on what it does not say, while
ignoring what it does say, which is that writer witnessed the applicant’s
injuries after the assault, and that the assault occurred because the writer,
who was an experienced boxer, was not around to protect the applicant.
However, it could also be said that the officer was simply noting a limitation
on the probative value of the email; that the writer could not directly
corroborate that the assault occurred or that it was motivated by homophobia.
[40]
After reviewing the various examples of this
error alleged by the applicant, I conclude that, although the officer’s
assessment of the evidence is questionable in some respects, her decision would
not merit intervention on this ground alone.
[41]
Finally, the applicant submits that the officer
erred by requiring the applicant to meet the “unusual
and undeserved or disproportionate” hardship test for H&C relief.
The applicant cites Kanthasamy at paras 33 and 45, in which the Supreme
Court held that:
The words “unusual and undeserved or
disproportionate hardship” should therefore be treated as descriptive, not as
creating three new thresholds for relief separate and apart from the
humanitarian purpose of s. 25(1). As a result, what officers should not do, is
look at s. 25(1) through the lens of the three adjectives as discrete and high
thresholds, and use the language of “unusual and undeserved or disproportionate
hardship” in a way that limits their ability to consider and give weight to all
relevant humanitarian and compassionate considerations in a particular case.
The three adjectives should be seen as instructive but not determinative,
allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.
…
Applying [the reasonableness] standard, in
my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’s
circumstances as a whole, and took an unduly narrow approach to the assessment
of the circumstances raised in the application. She failed to give
sufficiently serious consideration to his youth, his mental health and the
evidence that he would suffer discrimination if he were returned to Sri Lanka.
Instead, she took a segmented approach, assessed each factor to see whether it
represented hardship that was “unusual and undeserved or disproportionate”,
then appeared to discount each from her final conclusion because it failed to
satisfy that threshold. Her literal obedience to those adjectives, which do
not appear anywhere in s. 25(1), rather than looking at his circumstances as a
whole, led her to see each of them as a distinct legal test, rather than as
words designed to help reify the equitable purpose of the provision. This had
the effect of improperly restricting her discretion and rendering her decision
unreasonable.
[42]
I am not persuaded that the officer in the
present case committed the same error as the officer in Kanthasamy.
[43]
It is true that the officer concludes her
decision by stating that:
…overall I find that individually and
cumulatively, the elements presented in this case are insufficient to establish
that the applicant would suffer unusual and undeserved or disproportionate
hardship if she applies for permanent residence from outside Canada.
[44]
However, the applicant has not convinced me that
the officer uses this test to unduly fetter her discretion, either by creating a
high threshold for relief or by failing to consider and give weight to all
relevant humanitarian and compassionate factors. Therefore, while the impugned
test was certainly cited, there is no indication that it was applied in an
impermissible way. The officer’s reference to this test does not render her
decision unreasonable.
[45]
In summary, the officer’s H&C decision is
unreasonable because she improperly assessed some of the evidence based on what
it does not say, arguably required the applicant to remain closeted in order to
avoid a risk of persecution, and in any event, provided unintelligible
reasoning on the applicant’s risk. It will be set aside.
[46]
No question was proposed to be certified in
either matter.
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