Date: 20100430
Dockets: IMM-2672-09
Citation: 2010 FC 475
Ottawa, Ontario, April 30, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ANNA
VALERIEVNA KLOCHEK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms. Anna Valerievna Klochek arrived in Canada from Belarus in 2004. She sought refugee protection on the basis that she had
been forced into prostitution and was sought by criminal elements at home.
Given the close association between criminals and the police in Belarus, she also feared being falsely
charged with an offence. A panel of the Immigration and Refugee Board dismissed
her claim, finding that her account of events was not believable.
[2]
When Ms. Klochek tried to obtain permanent
residence in Canada, she
learned that she was inadmissible due to an outstanding Interpol warrant
against her for larceny. She then filed an application for a pre-removal risk
assessment (PRRA) and an application for humanitarian and compassionate relief
(H&C). Both applications were denied in 2009 by the same officer. This
judicial review relates to her H & C. In a separate application
(IMM-2670-09), I allowed her application for judicial review of her PRRA.
[3]
Ms. Klochek argues that the H&C officer
erred in a number of respects, including by failing to consider whether her
potential imprisonment in Belarus would amount to unusual, undeserved or disproportionate hardship. I
will grant her application for judicial review as I agree with Ms. Klochek that
the officer overlooked an important part of her application, resulting in an
unreasonable decision.
II.
The Officer’s Decision
[4]
The officer considered three aspects of Ms.
Klochek’s application – her family ties in Canada, her establishment here, and
the risk she would face on return to Belarus. It is only the latter aspect of the officer’s decision that I have
considered on this application for judicial review.
[5]
The officer noted two aspects of the risk Ms.
Klochek might face. The first related to her fear of persons who had forced her
into prostitution. The second involved her fear of prosecution in Belarus on an allegedly false charge and
the nature of the punishment she might have to endure. In respect of the latter,
the officer claimed to have considered the judicial process in Belarus and the prison conditions Ms.
Klochek might face.
[6]
The officer’s decision involves a discussion of
the country conditions in Belarus, in terms of its political, constitutional, and legal apparatus.
The officer concluded that while Belarus has a problem with authoritarian rule and suppresses the
opposition, the media, and non-governmental organizations, these issues would
not affect Ms. Klochek. Further, according to the officer, there was
insufficient evidence that it would be a hardship for Ms. Klochek “to obtain
fair treatment from the judicial process in Belarus”.
III.
Did the Officer Overlook an Important Issue?
[7]
While the officer purported to do so, in fact,
he did not consider whether any punishment Ms. Klochek might have to endure in Belarus, based on the outstanding charge
against her, would amount to unusual, undeserved or disproportionate hardship.
To his credit, he considered many aspects of the circumstances Ms. Klochek
might face in Belarus. However,
notwithstanding his undertaking to do so, the officer did not analyze the
hardship that could result from Ms. Klochek’s potential prosecution, conviction
and imprisonment in Belarus.
[8]
In my view, the officer overlooked an important
part of Ms. Klochek’s application. He did not consider whether being prosecuted
and punished in Belarus, even
on a valid charge, might amount to unusual, undeserved or disproportionate
hardship. The officer assumed that prosecution, conviction and sentencing would
result in “fair treatment from the judicial process in Belarus”. That conclusion was not based on the evidence before the officer.
IV.
Conclusion and Disposition
[9]
The officer failed to consider whether the
potential prosecution, conviction and punishment of Ms. Klochek would cause her
hardship. Accordingly, I find that the officer’s decision was unreasonable.
Therefore, I must order a reconsideration by another officer. Neither party
proposed a question of general importance for me to consider, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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