Date: 20090604
Docket: IMM-5352-08
Citation: 2009 FC 589
Toronto, Ontario, June 4,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
NADIYA
KROHMALNIK
Applicant
and
THE MINISTER OF CITIZENSHIP,
IMMIGRATION
and
MULTICULTURALISM
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Nadiya Krohmalnik seeks judicial review of the negative decision made in
relation to her application for a Pre-removal Risk Assessment.
[2]
For the reasons that follow, I find that the immigration officer erred
in the assessment of Ms. Krohmalnik’s PRRA application. As a consequence, the
application will be allowed.
Background
[3]
Ms. Krohmalnik is a 32-year-old Ukrainian citizen, who arrived in Canada
on a visitor’s visa some 11 years ago. In 2003, Ms. Krohmalnik married Haim
Krohmalnik, a Canadian citizen. The couple had a son, David, that same year.
Unfortunately, Mr. Krohmalnik died the following year.
[4]
Mr. Krohmalnik had attempted to sponsor Ms. Krohmalnik. There is some
disagreement between the parties as to what happened to that application, but
it is common ground that it was not successful.
[5]
After her husband died, Ms. Krohmalnik filed an application for a
Pre-removal Risk Assessment, as well as an application for a humanitarian and
compassionate exemption. Both applications were rejected by the same officer.
Ms. Krohmalnik’s application for judicial review in relation to her negative
H&C decision was heard at the same time as this application, and is the
subject of a separate set of reasons.
[6]
Ms. Krohmalnik’s PRRA application was based upon the risk that Ms.
Krohmalnik says that she and David would face in Ukraine, based upon their Jewish
surname, the perception that she had betrayed her roots by marrying a Jew,
David’s Jewish faith, and her status as the mother of a Jewish child. Ms.
Krohmalnik also says that she would be at risk in Ukraine because she is a
woman who would face discrimination amounting to persecution in the workplace.
[7]
Finally, Ms. Krohmalnik submitted that she would be at risk of extortion
in Ukraine because she had inherited a large sum of money from her late
husband. No issue is taken by Ms. Krohmalnik with respect to the officer’s
negative finding in relation to the last type of alleged risk.
Analysis
[8]
In relation to the risk allegedly posed by anti-Semitism in Ukraine, the
officer referred to a 2006 Immigration and Refugee Board report indicating that
anti-Semitic events in Ukraine had not changed the lives of Jews in a number of
Ukrainian cities. The officer also cited the director of a Jewish organization
in Kiev, who stated that “it would be incorrect to assert that today there
exists a direct threat to the existence of Jews or the Jewish community as a
whole”.
[9]
While noting that there had been an increase in acts of violence against
Jews in 2007, the officer referred to the creation of a special unit within the
Ukrainian Security Service to combat racial hatred. The officer then concluded
that “[D]espite the incidents of anti-Semitism in Ukraine, the sources do not
show that all individuals of [the] Jewish religion or those associated with
them have been subject to discrimination or aggressions systematically and that
they face a risk in that country. Furthermore, the sources show that the
Ukrainian government continues taking steps to fight this problem”.
[10]
There are several difficulties with the officer’s findings in relation
to the issue of anti-Semitism in Ukraine.
[11]
Firstly, the officer’s statement that “the sources do not show that all
individuals of [the] Jewish religion or those associated with them have
been subject to discrimination or aggressions systematically and that they face
a risk in that country” is very troubling. It is clearly not necessary for a
PRRA applicant to demonstrate that every member of the applicant’s religious
group who is living in the country in question has been subject to
persecution. By making the statement cited above, it appears that the PRRA
officer may have placed much too heavy a burden on Ms. Krohmalnik in relation
to the issue of risk.
[12]
The second concern is with the officer’s findings with respect to the
frequency of anti-Semitic attacks, and the steps taken by the Ukrainian
government to fight the problem of anti-Semitism.
[13]
There was recent evidence before the officer in the form of a 2008
Amnesty International report dealing with racial discrimination in Ukraine,
which paints a much gloomier picture of conditions for Jews in Ukraine than the
older country condition information referred to by the officer. This report
documents the alarming rise in violent attacks against religious minorities,
including Jews, over the previous two years. The report also notes that these
attacks were carried out not just by members of the public, but also by public
officials such as police officers.
[14]
Although the officer does not make an explicit finding that state
protection is available to members of the Jewish minority in Ukraine, such a
conclusion is implicit in the officer’s statement that the government is taking
steps to combat the problem of Anti-Semitism in that country. While this
statement may be true, as far as it goes, there was evidence before the officer
which raised serious questions as to whether these steps have resulted in
adequate protection being available to members of the Jewish community in Ukraine.
[15]
That is, the 2008 Amnesty International report concludes by observing
that “The failure to apply existing legislation, combined with the failure of
the police to acknowledge the gravity of racially motivated crimes and to
respond adequately, have led to a situation of virtual impunity for the
perpetrators” [my emphasis]. The report then goes on to state that “The police
must play a positive role in combating racial discrimination, yet in Ukraine
people are at risk of human rights violations at the hands of the police
because of their racial, ethnic or religious identity”.
[16]
It is clearly the role of the PRRA officer to weigh the available
information relating to the issues of risk and the availability of state protection.
However, where, as here, there is important evidence that runs
directly contrary to the officer’s finding on a central issue, there is an
obligation on the officer to analyse that evidence, and to explain why he or
she prefers other evidence on the point in question: Cepeda-Gutierrez v. Canada (M.C.I.) (1998),
157 F.T.R. 35 (F.C.T.D.). The failure of the officer to do so means that the
decision lacks the justification, transparency and
intelligibility required of a reasonable decision.
[17]
Given my conclusion in relation to this issue, it
is not necessary to address Ms. Krohmalnik’s remaining submissions.
Conclusion
[18]
For these reasons, the application for judicial review is allowed.
Certification
[19]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a different officer for re-determination; and
2. No serious
question of general importance is certified.
“Anne Mactavish”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5352-08
STYLE OF
CAUSE: NADIYA KROHMALNIK v. THE MINISTER OF
CITIZENSHIP,
IMMIGRATION and
MULTICULTURALISM
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 2, 2009
REASONS FOR JUDGMENT
AND JUDGMENT: Mactavish J.
DATED: June 4, 2009
APPEARANCES:
Jeremiah
Eastman FOR
THE APPLICANT
Alison
Engel-Yan FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Eastman Law
Office Professional Corporation FOR THE APPLICANT
Barrister &
Solicitor
Toronto,
Ontario
John H. Sims,
Q.C. FOR THE
RESPONDENT
Deputy Attorney
General of Canada
Toronto, Ontario
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