Docket: IMM-698-24
Citation: 2024 FC 1803
Toronto, Ontario, November 13, 2024
PRESENT: The Honourable Madam Justice Turley
BETWEEN: |
RUSLAN VALEEV |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
(Delivered orally from the Bench in Toronto, Ontario, on November 13, 2024)
[1] This judicial review application arises out of a Senior Immigration Officer’s [Officer] refusal of the Applicant’s Pre-Removal Risk Assessment [PRRA] under section 96, and subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27. The Applicant, a citizen of Russia, invoked the risk he fears for not responding to a military mobilization summons issued in October 2022. He also claimed a fear of religious persecution based on his Tartar ethnicity. The Officer rejected both grounds, finding that the punishment for refusing to comply with a military summons does not amount to cruel or unusual treatment or punishment and that there was little objective evidence adduced regarding the persecution of Tartars in Russia.
[2] I am allowing the application because the Officer’s decision regarding the Applicant’s fear of military conscription is unreasonable in two ways. First, the Officer failed to consider contradictory objective evidence in concluding that the Applicant would only be subject to a minimal fine if he fails to comply with the military summons. Second, the Officer failed to engage with the Applicant’s reason for not wanting to serve in the Russian military. There is no need for me to consider the Applicant’s other ground of review.
[3] The Applicant served in the Russian military for two years, between May 1999 and May 2001. The Officer accepted the Applicant’s evidence about receiving a military summons in October 2022. However, based on objective evidence in the National Documentation Package [NDP], the Officer concluded that the penalty for not responding to a summons is an administrative fine of 500–3000 rubles (equivalent to approximately 7–42 Canadian dollars). The Officer held that this does not amount to cruel or unusual treatment or punishment requiring protection.
[4] The Applicant argues that there was contradictory evidence in the same NDP item that the Officer failed to consider. I agree. According to that evidence, Russia’s Criminal Code was amended in September 2022 such that if reservists, like the Applicant, refuse to participate in military or combat actions, they face two to three years of imprisonment. Further, if the consequences of refusal are deemed serious, the prison term can be three to 10 years. Based on this evidence, the Applicant is at risk of criminal sanction, including imprisonment, for non-compliance with the military summons. The Officer’s failure to consider and engage with the above-noted evidence renders their decision unreasonable: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 126 [Vavilov].
[5] I also agree that the Officer erred in failing to engage with the Applicant’s explanation of why he did not want to serve in the Russian military. In a letter supporting his PRRA application, the Applicant expressly stated that he did not want to participate in war crimes:
I am aware that if I return to Russia, then there is a real threat that I will be forcibly sent to war and forced to kill Ukrainians. I don't want to take any part in these war crimes. In general, I am against the war unleashed by the Putin regime. And if I refuse to join the army, they will find a way to set up a criminal prosecution and sentence me to a long prison term.
[6] The Respondent relies on paragraph 167 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees [UNHCR Handbook] for the proposition that “[f]ear of persecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution”
. However, as noted by the Federal Court Appeal, paragraph 171 of the UNHCR Handbook provides that where the type of military action with which an individual does not want to be associated is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in light of all other requirements of the definition, be regarded as persecution: Zolfagharkhani v Canada (Minister of Employment and Immigration) (CA), 1993 CanLII 2971 (FCA), [1993] 3 FC 540.
[7] In a recent decision, Justice Strickland allowed a judicial review application because the PRRA officer ignored the applicant’s opposition to war crimes allegedly committed by the Russian army in Ukraine: Nazhmetdinov v Canada (Citizenship and Immigration), 2024 FC 389 at paras 30–36 [Nazhmetdinov]. I wholly adopt Justice Strickland’s reasons in this regard. Here, as in Nazhmetdinov, the Officer’s failure to mention let alone grapple with the Applicant’s evidence that he does not want to participate in war crimes renders the Officer’s decision unreasonable: Vavilov at para 128.
[8] For these reasons, the application for judicial review is granted. The Officer’s PRRA decision dated November 21, 2023, is set aside and the matter is remitted to a different officer for redetermination. No question of general importance was proposed by the parties for certification, and I find that none arises in this case.
Email this Content