Docket: IMM-14908-23
Citation: 2024 FC 1882
Ottawa, Ontario, November 25, 2024
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN: |
OLEG STOLIAROV |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] Mr. Stoliarov [the applicant] seeks judicial review of a Review Appeal Division [RAD] decision, confirming the Refugee Protection Division’s [RPD] determination that he is not a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27.
[2] The applicant is a Russian citizen fearing persecution from the Russian police due to a “personal vendetta”
that its officers hold against him. This vendetta is said to stem from a criminal plot having taken place against the applicant in 2013, when the Russian police attempted to frame him by planting drugs in his car and charge him with possession. The plot was foiled and his charges expunged once video evidence proved the applicant’s version of events. In turn, the police officers involved in the conspiracy were sentenced to prison. The applicant alleges that the Russian police are now targeting him in retaliation for what happened to their fellow officers.
[3] No longer feeling safe in his country, the applicant obtained a Canadian visitor visa in November 2016 and arrived in Canada in January 2017, extending his visa twice thereafter. Upon returning to Canada from a vacation in July 2018, his request for another extension to his visitor visa was denied. He therefore made a refugee claim. This claim has experienced some delay due to the several criminal offences and convictions against the applicant in the interim in Canada.
[4] The RPD denied the applicant’s claim on the determinative issue of credibility, finding there to be no forward-facing risk of harm if he were to return to Russia. The RAD dismissed his claim on similar grounds, which included drawing a negative credibility inference based on the lack of documents and a charge pertaining to his possession of an identity document that was not in his own name without a lawful excuse. It concluded further that the applicant could not reasonably explain his failure to claim refugee status earlier, namely sometime in the year and a half during which he resided in Canada on a visitor visa. Moreover, he unreasonably failed to provide documents to support his claim, despite his father having visited him twice in Canada before his refugee hearing. This was particularly relevant given the applicant’s allegation that his father was also being targeted by the police. In light of these findings, the RAD ultimately concluded that the applicant did not face a forward-facing risk of harm upon his prospective return to Russia.
[5] The applicant challenges the RAD decision on four grounds. First, it was unfair for the RAD to have drawn a negative conclusion from the applicant’s conviction for possession of an identity document that was not in his own name without a lawful excuse, without holding an oral hearing. Second, the RAD failed to consider relevant country conditions evidence in its assessment of forward-facing risk. Third, the RAD did not properly consider the applicant’s delay in claiming refugee status. Fourth, the RAD drew an unreasonable conclusion with regard to the applicant’s documents or lack thereof to corroborate his claim. Altogether, he alleges that these errors render the RAD’s decision unreasonable. I disagree. For the reasons set out below, this application for judicial review is dismissed.
[6] This application requires the Court to determine whether the decision under review was procedurally fair and reasonable.
[7] Procedural review is a form of analysis that “focuses on the nature of the rights involved and the consequences for affected parties”
(Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 55 [Canadian Pacific Railway]). When dealing with matters of procedural fairness, the role of a reviewing court is to determine whether “the applicant knew the case to meet and had a full and fair chance to respond”
(Canadian Pacific Railway at para 56). The Court thus conducts a “reviewing exercise… ‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied”
(Canadian Pacific Railway at para 54). Concretely speaking, this requires the Court to “assess the procedures and safeguards”
that are necessary to protect the rights of a party appearing before the administrative decision maker, and determine whether they have been followed in the applicant’s case. If they have not been followed, it is then incumbent on the Court to intervene. Such intervention is an essential part of safeguarding the fairness of the administrative process and holding administrative decision makers to account (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 13 [Vavilov]).
[8] In turn, substantive review is a form of analysis that “focuses on the relationship between the court and the administrative decision maker”
(Canadian Pacific Railway at para 55). The applicable standard of review in this case is that of reasonableness (Vavilov at paras 10, 25; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7, 39–44 [Mason]). To avoid judicial intervention, the decision must bear the hallmarks of reasonableness—justification, transparency and intelligibility (Vavilov at para 99; Mason at para 59). A decision may be unreasonable if the decision maker misapprehended the evidence before it (Vavilov at paras 125–126; Mason at para 73). Reasonableness review is not a “rubber-stamping”
exercise, it is a robust form of review (Vavilov at para 13; Mason at para 63). The onus of demonstrating that the decision is unreasonable lies with the applicant (Vavilov at para 100).
[9] With respect to the issue of procedural fairness and the RAD’s failure to hold a hearing, the record shows that the RAD simply respected the applicant’s wishes: the applicant specifically requested that a hearing not be held, and stated that he did not wish to file any more evidence (Applicant’s Record at 119) (Canada (Citizenship and Immigration) v RK, 2016 FCA 272 at para 6).
[10] In this particular case, the RAD exercised its duty to review the RPD’s decision and consider the entire evidentiary record (Huruglica v Canada (Citizenship and Immigration), 2016 FCA 93 at para 103). The applicant’s criminal convictions, including for possession of an identity document that was not in his own name without a lawful excuse, was clearly before the RAD for its consideration. The RAD reasonably explained, in its reasons, why it rejected the RPD’s conclusions in relation to other criminal convictions, but also why one specific conviction undermined the applicant’s credibility. The applicant was aware that it was open for the RAD to reconsider the entirety of the evidence and come to its own independent conclusions (including on all the convictions), he was able to provide his submissions to the RAD, but made no new submission nor presented any new evidence in relation to the convictions. Instead, the applicant specifically stated that he had no new evidence to submit and did not request a hearing. It was therefore reasonable for the RAD to consider the record as filed and come to its own conclusion on the applicant’s credibility on the basis of any criminal conviction.
[11] With respect to the second issue, the applicant argues that, in light of the RAD accepting that the 2013 events had occurred, it should have considered Russian country conditions documents linking criminality in modern-day Russia, corruption in its law enforcement, the crime of desertion, and prison conditions if he is somehow convicted of dodging conscription into the Russo-Ukrainian war upon his return. However, none of these materials were argued and specifically referred to before the RPD or the RAD. In particular, the argument relating to the RPD’s negative decision on his sur place claim of risk because of his objection to conscription in the military was not raised before the RAD. In response, the applicant claims that these documents were nonetheless available to the RPD and the RAD, and that it erred by failing to consider them in its analysis of forward-racing risk. This argument is untenable. The RAD cannot be faulted for not ruling on specific elements of the objective evidence that were not identified or argued by the applicant (Islam v Canada (Citizenship and Immigration), 2024 FC 320 at para 26). There is no basis for the Court to intervene on these points.
[12] With respect to the third issue, on the applicant’s delay in seeking protection, the applicant “[acknowledges] that the RAD is free to come to a different conclusion on this point, given that they explain their reasoning”
(Applicant’s Memorandum at para 37). The applicant’s argument is solely that this factor should not on its own be determinative and that he gave a reasonable explanation. However, in my view, the applicant’s argument essentially requires the Court to reassess and reweigh the evidence, which the Court cannot do absent specific circumstances that do not exist in this case (Vavilov at para 125). There is therefore no basis for the Court’s intervention on this ground.
[13] With respect to the fourth issue, the applicant’s lack of documents to establish his claim, he argues that the RAD came to an unreasonable finding regarding his failure to corroborate two key parts of his claim, namely the events of 2013 and the threats allegedly made against his father. The applicant largely supports this argument by pointing to his circumstances before the RPD, more specifically his lack of counsel. Yet this was explicitly considered by the RAD in its reasons (see e.g., RAD decision at para 41), and the applicant has not shown how this directly relates to his failure to provide corroborating documentation. Furthermore, the RAD based its findings on several other considerations that were not disputed by the applicant. The RAD observed, for example, that a decade had passed since the events of 2013, and that there was no evidence of recent threats against his father (RAD decision at para 43). The applicant responds that he could have procured some relevant documents for the RAD’s consideration had he been given more time to do so. In advancing this claim, he notes that he only had thirty days to perfect his appeal. However, the applicant also had fifteen days to file his appeal, and the possibility to secure an extension via a request pursuant to Rule 6 of the Refugee Appeal Division Rules, SOR/2012-257. The applicant could also provide additional documents as new evidence if he met the applicable legal test to do so. He did not seize these opportunities, and the RAD’s decision in the circumstances is not unreasonable.
[14] The applicant argues that, while the RAD was correct to observe that his father visited him twice prior to the refugee hearing, he had no reason to ask him for documents before these visits and when the documents became relevant, his father did not visit thereafter. This explanation is not supported by the record. The applicant’s father did indeed visit him once after the applicant filed his claim. In response, the applicant pleads that the lack of a third visit by his father prior to his RAD appeal robbed him of his only means of gathering more documentation. However, the applicant did not specify what evidence he could have adduced had he been able to ask his father, in order to support his claim. The applicant’s argument in this regard is speculative and cannot be accepted by the Court.
[15] A similar lack of evidence assails the applicant’s final claim, in which he relies on Magonza v Canada (Citizenship and Immigration), 2019 FC 14 to caution the Court against the RAD’s “disguised”
credibility findings. Yet it is again unclear where such findings occur. The RAD expressly agreed with the RPD’s finding of a lack of corroboration impugning the credibility of his claimed threats against him and his father (RAD Decision at 36–43). This agreement was hardly veiled, and it was plainly open for the RAD to make that finding in light of the evidence (or lack thereof) before it. The Court sees no reason for intervention.
[16] For the reasons set out above, this application for judicial review is dismissed. Neither party proposed a question for certification, nor does any such question arise here.
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