Docket: IMM-1868-17
Citation:
2017 FC 1082
Ottawa, Ontario, December 1, 2017
PRESENT: The
Honourable Madam Justice Mactavish
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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]
Oxana Sitnikova is a Russian citizen who sought
refugee protection in Canada based upon the risk that she claimed to face in
Russia as a result of her sexual orientation. Ms. Sitnikova claimed to be
at risk from the father of a former lover, who was a powerful police official. Ms. Sitnikova
asserts that this individual continues to seek her out in order to harm her
because of his anger at Ms. Sitnikova having been sexually involved with
his daughter.
[2]
The Refugee Protection Division of the
Immigration and Refugee Board rejected Ms. Sitnikova’s refugee claim,
finding that much of her evidence was not credible and that she had not
established that she was in fact a lesbian.
[3]
Ms. Sitnikova subsequently filed an
application for permanent residence on humanitarian and compassionate grounds,
as well as an application for a Pre-removal Risk Assessment. Both of these
applications were refused. These reasons relate to Ms. Sitnikova’s
application for judicial review of the negative PRRA decision.
[4]
Ms. Sitnikova asserts that the Officer
erred in refusing to consider evidence adduced in relation to her PRRA
application on the basis that it did not satisfy the test for new evidence. The
Officer further erred, Ms. Sitnikova says, in making veiled credibility
findings without affording her an oral hearing
[5]
For the reasons that follow, I have concluded
that the Officer’s treatment of the evidence adduced by Ms. Sitnikova in support
of her PRRA application was unreasonable, and that the Officer erred in making
what were veiled credibility findings without affording Ms. Sitnikova an
oral hearing. Consequently, her application for judicial review will be
granted.
I.
Background
[6]
This is the third time that Ms. Sitnikova’s
PRRA application has been considered. Her application for judicial review of
the first refusal of her PRRA application was settled out of court, and the
second refusal was quashed on judicial review by Justice Zinn: Sitnikova v.
Canada (Citizenship and Immigration), 2016 FC 464, 45 Imm. L.R. (4th) 298 (Sitnikova
#1).
[7]
The only documentary evidence that Ms. Sitnikova
provided to the Refugee Protection Division to confirm her sexual orientation
was a letter from a woman she claimed to have dated in Canada, a photograph of
the couple eating dinner, and a letter from the 519 Church Street Community
Centre confirming that Ms. Sitnikova attended an LGBTQ refugee support
group. The RPD was not satisfied that this evidence was sufficient to overcome
its concerns with respect to her credibility.
[8]
Ms. Sitnikova produced a number of
additional documents in support of her PRRA application in an effort to
establish that she was a lesbian. These included two letters from a different
woman with whom Ms. Sitnikova had been involved in a two-year, live-in
relationship in Canada, as well as letters from two former girlfriends and a
gay male friend, all of whom were still living in Russia. Ms. Sitnikova
also provided statements from her mother, sister and neighbours of her mother’s
in Russia, all of whom confirmed incidents of police harassment, allegedly at
the behest of the father of Ms. Sitnikova’s former girlfriend.
[9]
In addition, Ms. Sitnikova submitted dental
x-rays that she says corroborate her claim that her tooth was broken during a
beating that she suffered in Russia on account of her sexual orientation.
Finally, Ms. Sitnikova provided the Officer with medical evidence relating
to her current mental health.
[10]
The Officer considering Ms. Sitnikova’s
PRRA found that some of the evidence adduced by her in an attempt to establish
her sexual orientation did not meet the statutory test for new evidence, and
that the remaining evidence was insufficient to overcome the negative
credibility finding made by the Refugee Protection Division. Consequently, the
PRRA application was refused.
II.
Standard of Review
[11]
The determinative issue in this application
involves a finding by the Officer as to whether the evidence that was provided
by Ms. Sitnikova in support of her PRRA application was “new evidence”, and whether it was materially
different to the evidence adduced by Ms. Sitnikova before the Refugee
Protection Division. These are factually-intensive questions that are
reviewable against the reasonableness standard: Nwabueze v. Canada
(Citizenship and Immigration), 2017 FC 323 at para. 7, [2017] F.C.J. No.
354; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53, [2008] 1 S.C.R.
190.
[12]
In reviewing a decision against the
reasonableness standard, the Court must consider the justification,
transparency and intelligibility of the decision-making process, and whether
the decision falls within a range of possible acceptable outcomes which are
defensible in light of the facts and the law: see Dunsmuir, above, at
para. 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at
para. 59, [2009] 1 S.C.R. 339.
III.
Analysis
[13]
The Immigration Officer considering Ms. Sitnikova’s
PRRA application accepted that members of the LGBTQ community are currently at
risk of persecution in Russia. The Officer was not, however, satisfied that Ms. Sitnikova
was a lesbian.
[14]
In coming to this conclusion, the Officer noted
that Ms. Sitnikova had provided documents which the Officer characterized
as being “similar or identical to the documents
provided to the RPD” [my emphasis]. According to the Officer, the fact
that Ms. Sitnikova had identified a different person as a partner in
Canada did not require the Officer to revisit the credibility findings of the
RPD.
[15]
The Officer determined that some of the evidence
produced by Ms. Sitnikova that referred to incidents that occurred prior
to the RPD decision could have been available to her at the time of her RPD
hearing with reasonable diligence, and therefore should be excluded on the
basis that it was not “new evidence” within the
meaning of section 113 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27. This included evidence from Ms. Sitnikova’s former
partners in Russia, and her dental records. The Officer also concluded that the
portions of letters and emails from Ms. Sitnikova’s family and friends
that referred to experiences that pre-dated her refugee hearing could have been
obtained for her refugee hearing and would therefore not be considered.
[16]
These findings were reasonably open to the
Officer in light of the record before him and need not be addressed further.
[17]
The Officer was, however, prepared to consider
evidence that related to incidents of harassment and threats to Ms. Sitnikova’s
family in Russia that occurred after her refugee hearing as “new evidence”. That said, the Officer stated that “little weight” would be given to the email
correspondence purportedly from several different individuals describing these
incidents on the basis that these documents were not sworn, and “an email address can be created by anyone”.
[18]
This Court has expressed concerns regarding
cases where PRRA Officers have endeavoured to avoid the use of the word “credibility” in the hopes of avoiding a hearing: Uddin
v. Canada (Citizenship and Immigration), 2011 FC 1289 at para. 3, [2011]
F.C.J. No. 1572 . As Justice Hughes observed in Uddin, the intent of the
Immigration and Refugee Protection Act, its Regulations and the
attendant jurisprudence is clear: if credibility is a central issue and is
likely to lead to a result unfavourable to the applicant, a hearing should be
held. As Justice Hughes observed, “[i]t is not for a
PRRA Officer to finesse these requirements by endeavouring to couch what are,
in reality, credibility concerns, in language suggesting lack of evidence or
contradictory evidence”: Uddin, above, at para. 3.
[19]
The documents in question in this case were
attached to an affidavit sworn by Ms. Sitnikova, who stated under oath
that the documents were obtained from the individuals identified as the authors
of the emails and letters. She was, therefore, attesting to their authenticity
as documents emanating from the sources identified in the documents themselves.
In choosing to give the documents “little weight”,
the Officer was implicitly finding Ms. Sitnikova’s sworn statement
regarding the provenance of the documents not to be credible. In such
circumstances, the Officer was obliged to provide Ms. Sitnikova with an
oral hearing: Uddin, above; Rajagopal v. Canada (Citizenship and
Immigration), 2011 FC 1277, 6 Imm. L.R. (4th) 130.
[20]
This Court has, moreover, previously commented
on the practice of decision-makers giving “little
weight” to documents without making an explicit finding as to their
authenticity: see, for example, Marshall v. Canada (Citizenship and
Immigration), 2009 FC 622 at paras. 1-3, [2009] F.C.J. No. 799 and Warsame
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1202,
at para. 10. If a decision-maker is not convinced of the authenticity of a
document, then they should say so and give the document no weight whatsoever.
Decision‑makers should not cast aspersions on the authenticity of a
document, and then endeavour to hedge their bets by giving the document “little weight”. As Justice Nadon observed in Warsame,
“[i]t is all or nothing”: at para. 10.
[21]
That said, it is, of course open to a
decision-maker to explain why he or she is not satisfied that a document that
has been accepted as genuine should be given much weight: Marshall,
above at para. 3.
[22]
In this case, the Officer explained that little
weight would be given to evidence that related to incidents of harassment and
threats to Ms. Sitnikova’s family in Russia that occurred after her
refugee hearing because all of the writers were close family or friends of Ms. Sitnikova’s.
While the handwritten letter from the three neighbours confirms that they had
known Ms. Sitnikova’s family for some time, there is nothing in the record
to suggest that Ms. Sitnikova’s mother’s neighbours were close friends of
either Ms. Sitnikova or her family.
[23]
Further, as I discuss in the companion decision Sitnikova
v. Canada (Citizenship and Immigration), 2017 FC 1081, it is clear from the
jurisprudence that evidence should not be ignored solely because it
comes from individuals who are connected to the person concerned.
[24]
Ms. Sitnikova also provided the Officer
with numerous documents from various individuals in Canada including her former
long-term partner that confirmed her involvement in same-sex relationships. She
also provided the Officer with numerous photographs of her and her former
partner in a variety of locations. Some of these photos were quite intimate in
nature.
[25]
The Officer described this evidence as “similar or identical” to the documents that Ms. Sitnikova
had provided to the RPD. This led the Officer to conclude that “[t]he fact that [Ms. Sitnikova] has identified a different
person as a partner in Canada did not demonstrate that [the Officer] need[ed]
to revisit the findings of the RPD”.
[26]
I agree with Ms. Sitnikova that while the
evidence may have been similar in form, in that it included letters and
photographs, it was materially different in substance to the evidence that was
before the RPD, and should therefore have been addressed.
[27]
Finally, I am also satisfied that the Officer
erred by discounting some of the evidence provided by Ms. Sitnikova in
support of her PRRA, based on what the evidence did not say, rather than on
what it says. For example, the Officer discounted letters describing the police
harassment of the applicant’s family in Russia because there was “no record of formal complaints against the police officers”.
However, as Justice Zinn observed in Sitnikova #1, “documents that corroborate some aspects of an applicant’s
story cannot be discounted merely because they do not corroborate other aspects
of his story”: at para. 23, citing Belek v Canada (Minister of
Citizenship and Immigration), 2016 FC 205 at para. 21, [2016] F.C.J. No.
205.
IV.
Conclusion
[28]
For these reasons, the application for judicial
review is allowed. I agree with the parties that the case is fact-specific and
does not raise a question that is suitable for certification.
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