Date: 20101104
Docket: IMM-5225-09
Citation: 2010 FC 1091
Ottawa, Ontario, November
4, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALEKSANDR
KUNIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board) dated September 23, 2009, wherein the applicant was
determined not to be a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act. This conclusion was based on the Board’s
finding that the applicant lacked a well-founded fear of persecution.
[2]
The
applicant requests that the decision of the Board be quashed and the claim
remitted for reconsideration by a differently constituted panel of the Board.
Background
[3]
The
applicant is a citizen of Azerbaijan and claims a fear of
persecution on the basis of his Jewish religion and nationality.
[4]
The
applicant’s Personal Information Form (PIF) describes the death of his parents
at a young age and his childhood in an orphanage where other children harassed
him and called him insulting names such as derogatory terms for someone who is
Jewish. At age 18, the applicant joined the military for a period of compulsory
service. During his time in the military, the insults, due to his Jewish
nationality, continued and he also felt he was discriminated against for a
promotion. After the military, he moved to the town of Baku and began a
real estate business. The discrimination escalated and the applicant’s house
was burnt down but the police told him they would not help. He was also beaten
badly on another occasion.
[5]
Eventually,
the applicant paid a smuggler to help him leave the country. A ship took the
applicant to the United States. He made a claim for protection in the U.S. but it was
never approved as he experienced difficulty getting his documents verified. He
spent a long period of time in a homeless shelter in New York City and claims
that several documents including his passport, birth certificate and the
forensic report from the fire were stolen. U.S. authorities
indicated a belief that his claim may be fraudulent, denied his claim, issued a
deportation order and incarcerated the applicant for a brief period. The
applicant sought an appeal of the asylum determination for which no final
decision has been made.
[6]
The
applicant came to Canada in September of 2007 and made another claim for
protection. His case or appeal in the U.S. appears to have been
closed.
The Board’s Decision
[7]
The
Board’s reasons were short and read in relevant part:
Analysis:
[4] Between the time he entered the U.S. and made an asylum claim in late 2000,
and his entry to Canada in September 2007, he enjoyed international protection
afforded by the government of the United States of America.
[5] Out of personal frustration, he relinquished
that protection and entered Canada making a second refugee
claim.
[6] The purpose of the refugee system in Canada is not to satisfy personal
frustration or to provide a more desirable place to live, but rather to give
protection to those who need it.
[7] Mr. Kunin, whatever fear he may have
expressed regarding returning to Azerbaijan
voluntarily, relinquished the protection offered by the United States and
sought to relocate to Canada. The desirability of
immigrating to Canada clearly outweighed any
alleged fear.
[8] If Mr. Kunin had a well-founded fear
of harm should he return to Azerbaijan, he would not have given up
the very protection he now asks Canada
to afford him.
Conclusion:
[9] For the aforementioned reason,
Aleksandr Kunin is neither a Convention refugee nor a person described in
Section 97 of the Immigration and Refugee Protection Act.
Issues
[8]
The
issues are as follows:
1. What is the standard
of review?
2. Did the Board err in
failing to perform a separate analysis under section 97 of the Act?
3. Was the Board’s
ultimate conclusion unreasonable?
Applicant’s Written Submissions
[9]
The
applicant submits that the Board was required to consider the applicant’s risk
upon returning to Azerbaijan under section 97 of the
Act, even if it had concluded that the applicant lacked a subjective fear of
returning. The nature of the evidence presented in the case warranted a
separate section 97 analysis and there was no finding that the applicant’s
story or identity lacked credibility. The Board’s failure to engage this issue
is a reviewable error.
[10]
In
addition, the applicant submits that the Board’s ultimate conclusion that the
applicant lacked a subjective fear of persecution was unreasonable. The Board’s
determination was entirely predicated on the mistaken belief that the applicant
enjoyed international protection in the U.S. but relinquished that protection. In fact, the
applicant was not receiving protection in the U.S. He had been incarcerated there and had no
reasonable hope of obtaining protection. This error of fact vitiates the
Board’s decision and constitutes a reviewable error.
Respondent’s Written Submissions
[11]
The
respondent submits that the Board’s decision was reasonable. While the
applicant’s claim for asylum in the U.S. took many years, there
is no evidence that his claim failed. The mere fact that a claim takes many
years does not explain his abandonment of the process. Therefore, the Board
made no error in making a negative inference from the applicant’s failure to
see his U.S. claim
through. A finding of no subjective fear can be determinative of a claim under
section 96 and seriously damages an applicant’s credibility even if the Board
does not say so expressly.
[12]
In
response to the applicant’s first allegation, the respondent submits that there
was insufficient objective evidence on the record to base a section 97
analysis. The documentary evidence submitted did not establish that the
applicant faces a personalized risk to his life. Therefore, the Board did not
err by failing to conduct a section 97 analysis.
Analysis and Decision
[13]
Issue
1
What is the
standard of review?
Findings of fact made by the
Board may only be interfered with by a reviewing court if the finding was made
in a perverse or capricious manner or without regard for the material before it
(see the Federal Courts Act, R.S.C. 1985, c. F-7s. 18.1(4)(d)).
[14]
As
I have stated earlier, ultimate refugee determinations of the Board are
reviewable against the standard of reasonableness (see Kaleja v. Canada
(Minister of Citizenship and Immigration), 2010 FC 252, at paragraph 19, Sagharichi
v. Canada (Minister of
Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.), [1993] F.C.J.
No. 796 at paragraph 3). Questions of pure law, should one arise, must be
handled correctly by the Board (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[15]
The
Board’s implicit determination that the applicant’s claim did not warrant a
separate section 97 analysis was a question of mixed fact and law, reviewable
on the reasonableness standard. The Board’s determination that the applicant
lacked a well-founded fear was the essence of the Board’s ultimate
determination and was a question of mixed fact and law. It is also to be
reviewed against the reasonableness standard.
[16]
Issue
2
Did the Board
err in failing to perform a separate analysis under section 97 of the Act?
The well-founded fear component
of a claim to be a Convention refugee under section 96 of the Act has both
objective and subjective components. This is not the case for a claim for
protection under subsection 97(1). This subsection only requires that the
claimant establish that it is more likely than not that the claimant will be
persecuted in accordance with the specific terms of paragraphs 97(1)(a) or (b).
[17]
As
stated in Odetoyinbo v. Canada (Minister of
Citizenship and Immigration), 2009 FC 501, [2009] F.C.J. No. 614:
7 It is well settled that an adverse
credibility finding, though it may be conclusive of a refugee claim under
section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (the Act), is not necessarily conclusive of a claim under subsection 97(1).
The reason for this is that the evidence necessary to establish a claim under
section 97 differs from that required under section 96 (Jarada v. Canada (Minister of Citizenship and
Immigration),
2005 FC 409, [2005] F.C. J. No. 506). When considering section 97, the Board
must decide whether the claimant's removal would subject him personally to the
dangers and risks stipulated in paragraphs 97(1)(a) and (b) of the Act (Bouaouni
v. Canada (Minister of Citizenship and Immigration), 2003 FC 1211, [2003]
F.C.J. No. 1540). Further, there are objective and subjective components to
section 96, which is not the case for paragraph 97(1)(a): a person relying on
this paragraph must show on a balance of probabilities that he or she is more
likely than not to be persecuted (Chan v. Canada (Minister of Employment and
Immigration), [1995] 3 S.C.R. 593, [1995] S.C.J. No. 78; Li v. Canada
(Minister of Citizenship and Immigration), 2005 FCA 1, [2005] F.C.J. No.
1).
[18]
In
the present case, the Board focused on the applicant’s decision to relinquish
the protection the Board claimed was being offered to him in the U.S. The Board
then concluded:
If Mr. Kunin had a well-founded fear of
harm should he return to Azerbaijan, he would not have given up
the very protection he now asks Canada
to afford him.
[19]
Although
the Board did not analyze the required components of a refugee claim and
highlight the area where the claim failed, it is evident that the Board
concluded that the applicant had failed to establish the subjective component
of having a well-founded fear of persecution.
[20]
A
finding that a claimant lacks a subjective fear of persecution necessarily
impugns any claimant’s credibility. However, it may only impugn one aspect of
the claimant’s credibility and certainly does not equate to a Board finding
that the claimant is less than credible in all aspects of his claim.
[21]
In
Sellan v. Canada (Minister of Citizenship and Immigration), 2008 FCA
381, 76 Imm. L.R. (3d) 6, the Federal Court of Appeal held at paragraph 3 that:
…where the Board makes a general finding
that the claimant lacks credibility, that determination is sufficient to
dispose of the claim unless there is independent and credible documentary
evidence in the record capable of supporting a positive disposition of the
claim. The claimant bears the onus of demonstrating there was such evidence.
[22]
The
Board made no such general finding in the present case and in fact expressed no
concern with the applicant’s credibility or the truth of his story at any point
in the decision. If the Board accepted his identity as a Jewish person, which
it seems the Board did, the documentary evidence alone would be enough to require
an analysis of risk.
[23]
The
particular facts of this case lead me to the firm belief that the Board could
not lawfully dispose of the applicant’s claim under subsection 97(1) without
some consideration of the objective evidence related to risks facing the
applicant upon return to Azerbaijan. The decision to do so
was unreasonable.
[24]
Issue
3
Was the Board’s ultimate
conclusion unreasonable?
I am also convinced that the
Board’s conclusion that the applicant lacked a subjective fear of returning to Azerbaijan was deeply
flawed and was unreasonable in the circumstances.
[25]
I
reject the respondent’s explanation that the Board’s determination was no
different than previous cases which provide that the Board may conclude that an
individual lacks subjective fear if that individual fails to seek asylum while
living or transiting through another country before reaching Canada.
[26]
The
applicant did not merely transit through the U.S., then choose Canada because
he thought his chances of a successful asylum application would be greater, as
was the case in Remedios v. Canada (Minister of Citizenship and Immigration)
2003 FCT 437. Nor did the applicant delay making a claim at any time. Rather, the
applicant sought asylum immediately in the U.S. and it
appears fought vigorously for the success of his claim.
[27]
In
the Board’s view, Canada’s refugee system is not to be used for the
purpose of providing fast immigration services to a refugee already enjoying
the protection of another country. I agree completely. However, that does not
appear to accord with the applicant’s situation. He had not been accepted as a
refugee in the U.S. If the Board was under the impression he had
been granted protection, this would have been a capricious error of fact. In
fact, the applicant had been refused protection and was even incarcerated.
Moreover, he was under a deportation order which on the face of the record,
could have been enforced in short order.
[28]
Abandoning
the refugee process in one country in favour of another will, in many cases,
properly lead the Board to draw a negative inference regarding that
individual’s true motives and subjective fear (see Bains v. Canada (Minister
of Citizenship and Immigration), [1999] F.C.J. No. 536). However, the
record in the present case reveals good reasons and explanations supporting the
applicant’s actions. There was a complete failure on the part of the Board to
engage in an analysis of whether the applicant’s seven year experience in the U.S. and eventual
abandonment was nonetheless consistent with a continuing subjective fear of
returning.
[29]
Other
than the abandonment itself, which appears to been more formal than
substantive, I see nothing on the record to support a finding that the
applicant’s actions were indicative of a person without a subjective fear of
returning. This is especially the case in light of the extensive and
uncontradicted evidence of mistreatment the applicant suffered in Azerbaijan as a Jewish
person. The Board’s decision in this case was unreasonable and cannot stand.
[30]
The
application for judicial review is therefore allowed and the matter is referred
to a different officer for redetermination.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[32]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
|
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97.(1) A person in need of protection is a
person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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