Date: 20070706
Docket: IMM-338-06
Citation: 2007 FC 720
Ottawa, Ontario, July 6,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MARAT
MOUMAEV
Applicant
and
SOLICITOR
GENERAL FOR CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of a Pre-Removal Risk Assessment (PRRA) officer, dated January 17,
2006, which refused the applicant’s PRRA application.
[2]
The
applicant requests that the officer’s decision be quashed and the matter
remitted for redetermination by a different officer.
Background
[3]
The
applicant, Marat Moumaev, and his son, Rouslan Moumaev, are citizens of Russia and claim
to be of Chechen ethnicity. The applicant described his ethnic background and
explained the basis for his fear of returning to Russia in his
affidavit. The applicant’s family was deported from Chechnya in 1944 and
as a result, he was born in Kazakhstan. His family returned to
Chechnya in 1957, where the applicant lived until he moved to Moscow in 1974.
During the Chechen war of 1994 to 1995, Russian citizens of Chechen origin were
being arrested and persecuted. The applicant began receiving threatening phone
calls and was informed that many of his Chechen friends in Moscow had been
beaten by the police, tortured and arrested.
[4]
In
June 1995, the applicant was stopped by the police for a routine document
check. He provided them with his passport, which indicated his Chechen
ethnicity, and was immediately taken into custody. He was asked to sign
documents accusing other imprisoned Chechens of keeping illegal firearms. He
refused to sign the documents, and was beaten by the police. He was warned not
to complain about the incident. The applicant and his family later moved to Cyprus with
temporary visas, where they remained for four years. The applicant returned to Russia a number of
times during this period. He returned in 1998 in order to renew his international
passport, and again in 1999, in order to apply for a Canadian visa.
[5]
After
obtaining a visa, he fled with his son. They arrived in Canada as visitors
on October 13, 1999. Their claim for refugee protection was denied on August 7,
2003, because they had failed to establish their Chechen ethnicity. The
applicant submitted his internal passport and military book in support of his
ethnic identity; however, the original documents were lost by the Immigration
and Refugee Board (the Board) when they were taken for forensic testing. Leave
for judicial review of the Board’s decision was denied on December 17, 2003.
The applicant submitted his first PRRA application in March 2003. The PRRA
application was rejected on November 3, 2004, due to a lack of evidence
establishing the applicant’s ethnicity. Leave for judicial review of the first PRRA
decision was denied on April 13, 2005.
[6]
The
applicant’s second PRRA application was submitted in December 2005. This
application included a newly re-issued birth certificate which had been
obtained from his sister. The applicant claimed that his original birth
certificate had been destroyed when his family home was bombed during the war
in Chechnya. The second
PRRA was refused on January 17, 2006, as insufficient new evidence had been
provided regarding the applicant’s ethnicity. This is the judicial review of
the second PRRA decision.
Officer’s Reasons
[7]
The
applicant’s PRRA application was rejected because the officer determined that
he would not be subjected to a risk of persecution, danger of torture, risk to
life or risk of cruel and unusual punishment if he returned to Russia. It was
noted that the applicant’s previous PRRA had been refused because he had failed
to establish his Chechen ethnicity. The officer noted the applicant’s fear of persecution
in Russia due to his
Chechen ethnicity, and his son’s fear pertaining to the fulfillment of military
service as a Chechen. The officer found that the affidavits submitted with the
application did not establish the applicant’s Chechen ethnicity. The affidavit
of Lema Atagayev indicated that he met the applicant when he first arrived in Canada, but
revealed that he had no independent knowledge of the applicant. Also, the notes
attached to the affidavit were in Chechen and no translation was provided. The
affidavit of Tokaz Edilov was included to establish the applicant’s Chechen
language proficiency and ethnicity, however, he had no independent knowledge of
the applicant. The affidavit of Baoudin Atiev stated that he had known the
applicant for over twenty years. Counsel explained that this affidavit had not
been submitted as part of the refugee claim because he could not have
anticipated the need for it, given the fact that he had an internal passport
identifying him as Chechen. The officer did not find that this explanation was
reasonable and held that the affidavit did not constitute new evidence.
[8]
The
officer concluded that the following documents did not constitute “new
evidence” as required under subsection 113(a) of IRPA, as they had either been
submitted at the refugee hearing or during the first PRRA, or could have been
submitted when the prior applications were made:
-
Copies
of letters that were submitted with his first PRRA application.
-
A
workbook which did not state the applicant’s ethnicity. The officer did not
accept counsel’s submission that the applicant could not have been reasonably
expected to present the workbook at the refugee hearing, since he had legal
representation.
-
Photocopies
of both the applicant’s birth certificate and restored birth certificate.
Counsel had submitted that the restored birth certificate had not been
reasonably available at the refugee hearing or during the first PRRA. The
applicant re-established contact with his sister and discovered that his
original birth certificate had been destroyed in his family home during the
war. The officer noted that he had not provided evidence of the home’s
destruction. There was no information as to when he had contacted his sister,
which led to the conclusion that she was contacted after his first PRRA was
denied.
-
A
photocopy of his military record book and his internal passport.
-
A
photocopy of his son’s birth certificate (without an explanation as to why the
original had not been submitted). The officer did not accept counsel’s
submission that the applicant had not been informed that the Board wanted his
birth certificate or that of his son.
-
Photocopies
of the international passports of the applicant and his son, which did not indicate
their ethnicity.
[9]
After
reviewing the evidence, the officer concluded that there was insufficient
objective evidence to confirm that the applicant was Chechen.
[10]
The
officer considered the country condition documents submitted by the applicant
and found that they were general in nature and did not relate to the specific
applicants. The officer was not satisfied that country conditions in Russia had changed
to the extent that the applicant would be at risk since the first PRRA decision.
The applicant had identified a risk faced by his son, namely, that he would be
required to perform military service if returned to Russia. The officer
noted that this information was known to the applicant when the first PRRA was
made, and did not constitute evidence of a new risk development which arose
since the rejection of the first claim. The application was therefore rejected.
Issues
[11]
The
applicant submitted the following issue for consideration:
Did the officer err by
misinterpreting the test for new evidence under subsection 113(a) of IRPA?
Applicant’s Submissions
[12]
The
applicant submitted that he could now provide substantial evidence in support
of his identity. It was submitted that in dismissing evidence on the grounds
that it was not new, the officer misinterpreted subsection 113(a) of IRPA. The
applicant submitted that this error constituted a denial of natural justice.
The applicant noted that with respect to the rejection of new identity
evidence, the Court has held in favour of the applicant when he could not have
anticipated that identity would be a major issue at the hearing.
[13]
The
applicant submitted a re-issued birth certificate with his second PRRA, as the
original document had been destroyed when his family home was bombed. The
applicant attempted to obtain the document following his refugee hearing, but
it was only issued after his first PRRA was denied, and thus constituted new
evidence. The applicant noted that Chechnya was a war zone and that
requiring evidence of the home’s destruction was unreasonable and irrelevant to
determining whether the document constituted new evidence.
[14]
The
applicant submitted that he could not have anticipated that his birth
certificate would be a critical document at his refugee hearing since he had
provided the Board with his original internal passport, which identified him as
Chechen. Since the Board lost the passport before it was forensically tested,
it was unreasonable for the applicant to have anticipated the need for his
birth certificate. It was submitted that the applicant could not have foreseen
that the Board would lose his passport, thereby precluding him from testing it
in order to refute the assertion that it was not genuine. The applicant
submitted that he rectified the identity issue in the second PRRA, but that his
proof was ignored.
[15]
The
applicant submitted that the officer erred in dismissing the affidavit of Mr.
Edilov. It was submitted that the officer erred in ignoring that the affiant
was an accredited interpreter and used his expertise to objectively assess the
applicant’s language proficiency. The applicant submitted that the officer
erred in attributing minimal probative value to Mr. Atagayev’s affidavit. It
was submitted that Mr. Atagayev extensively interviewed the applicant and
concluded that he was Chechen. It was submitted that the officer was under a
duty to state why he rejected this evidence.
[16]
The
applicant submitted that the language of subsection 113(a) of IRPA directed
officers to look at the individual circumstances of the case before them in
deciding whether to accept new evidence. It was submitted that: (1) the
applicant’s reasonable explanations about his documents; (2) the unique
circumstances of this case involving the Board’s loss of his internal passport
and military record book; (3) the Board’s misinterpretation of the internal
passport which resulted in the increased importance of the birth certificates;
and (4) the highly probative and credible nature of the new evidence,
demonstrate that the officer erred in refusing to accept it as new evidence under
the third prong of subsection 113(a) of IRPA.
[17]
It
was submitted that the scope of subsection 113(a) of IRPA should not be unduly
narrowed, given the importance of the PRRA to individuals facing serious risks
if removed from Canada (see Mendez v. Canada (Minister of
Citizenship and Immigration) (2005), 42 Imm.L.R. (3d) 130, 2005 FC
111).
[18]
While
subsection 113(a) limits the acceptance of new evidence to that arising after
the previous rejection, the applicant submitted that the officer’s focus upon
timing, in isolation of other factors, should not unduly fetter the broader
discretion given to him under the third prong of the provision. It was
submitted that the officer did not consider the applicant’s circumstances, such
as the Board’s actions and mistakes, which severely prejudiced his ability to
respond to the allegation that he was not Chechen. Finally, it was submitted
that the officer erred in holding that the risk to Rouslan regarding military
service was not new, since the documentary evidence in support of this risk
post-dated the first PRRA refusal. Thus, it was submitted that this risk should
have been considered by the officer.
Respondent’s Submissions
[19]
The
respondent noted that subsection 161(2) of the Immigration and Refugee
Protection Regulations, S.O.R./2002-227 (the Regulations) placed the burden
upon the applicant to demonstrate that the evidence presented was new evidence
within the meaning of subsection 113(a) of IRPA. The respondent submitted that
the second PRRA was not another refugee hearing, but was held in order to
determine whether new risks had developed since the applicant’s refugee claim was
refused. It was submitted that the applicant failed to show that there were
changes in his personal situation or in country conditions which now placed him
at risk (see Kaybaki v. Canada (Solicitor General of Canada),
2004 FC 32).
[20]
The
respondent submitted that the applicant was trying to cure the deficiencies in
the evidence presented to the Board and PRRA officer which was not the purpose
of the second PRRA (see Kaybaki, above). It was submitted that the
applicant was specifically put on notice by the Board that his Chechen identity
was at issue. He was also asked to provide his original birth certificate. It
was submitted that the applicant failed to provide a satisfactory explanation
for why this information had not been provided earlier. The respondent
submitted that the evidence therefore did not constitute new evidence that: (1)
arose after the previous rejection; (2) was not reasonably available; or (3)
could not have reasonably been anticipated in the circumstances.
[21]
The
respondent submitted that the officer’s PRRA decision should be accorded
deference as it involved findings of fact (see Kaybaki, above). It was
submitted that the applicant failed to demonstrate that the officer’s decision
was unreasonable or that the officer had committed an error in law.
Applicant’s Reply
[22]
The
applicant submitted that the respondent misinterpreted the decision in Kaybaki.
In that case, the applicant submitted a letter confirming his arrest in Turkey and the
Court held that the document could have been available and presented in the
context of the refugee hearing, therefore the officer should not have
considered it. The applicant acknowledged that the PRRA process could not be
used to present a case in piece-meal fashion; however, he was specifically
chastised by the Board for failing to obtain his birth certificate, and had
since procured it with a reasonable explanation as to why it was not available
earlier. In addition, in Mendez above, the Court held that in a PRRA,
the applicant may try to rectify a Board finding through the production of new
evidence. Therefore, it was proper for the applicant to attempt to cure the
deficiency.
[23]
The
applicant took issue with the respondent’s statement that he was asked to
submit his original birth certificate. It was submitted that the respondent was
casting aspersions regarding the applicant’s credibility without any
foundation. The applicant submitted that his affidavit made it clear that the
Board’s expectation that he was aware of the request was unreasonable.
[24]
The
applicant submitted that this application for judicial review dealt with an
issue of law, being the proper interpretation and application of new evidence
in subsection 113(a) of IRPA, and should be reviewed on a correctness standard
(see Kim v. Canada (Minister of Citizenship and Immigration)
(2005), 272 F.T.R. 62, 2005 FC 437).
Analysis and Decision
Standard of Review
[25]
In
Kim above, Justice Mosley applied the pragmatic and functional approach
to the determination of the appropriate standard of review applicable to the
decision of a PRRA officer. Justice Mosely stated the following at paragraph 19
of Kim:
Combining and balancing all of these factors,
I conclude that in the judicial review of PRRA decisions the appropriate
standard of review for questions of fact should generally be patent
unreasonableness, for questions of mixed law and fact, reasonableness simpliciter,
and for questions of law, correctness. I am fortified in my conclusions by the
positions taken by my colleagues in other recent PRRA decisions.
[26]
Issue
Did the officer err by
misinterpreting the test for new evidence under subsection 113(a) of IRPA?
The central issue in this case
was the applicant’s ethnic identity. His refugee claim and first PRRA were
clearly rejected on the basis that he had not established his Chechen ethnicity.
The applicant was therefore aware that establishing his Chechen ethnicity would
be central to his second PRRA application.
[27]
Pursuant
to subsection 113(a) of IPRA, an applicant whose claim to refugee protection
has been rejected may present only new evidence that: (1) arose after the
rejection; (2) was not reasonably available, or (3) could not reasonably have
been expected in the circumstances to have been presented at the time of the
rejection. Under section 161 of the Regulations, an applicant may make written
submissions in support of their application. These submissions must show that
the evidence presented meets the requirements of subsection 113(a) of IRPA.
[28]
I
have reviewed the evidence provided by the applicant in support of his second
PRRA application, as well as his explanations for their admissibility under
subsection 113(a) of IRPA. Having also considered the officer’s reasons for
rejecting the applicant’s evidence, in my opinion, there were portions of the
evidence which met the requirements for new evidence.
[29]
The
applicant provided the PRRA officer with a birth certificate which was re-issued
on November 26, 2004, and lists his nationality as “Chechen”. The officer
considered the document as follows:
The applicant submitted a photocopy of
his birth certificate and a photocopy of a “restored” birth certificate which I
have reviewed. I find these documents are not new evidence and do not meet the
requirements of Section 113(a) of the Immigration and Refugee Protection Act
as the photocopy of the birth certificate was submitted with the first PRRA
application and the “restored” birth certificate, which is a photocopy and
contains the same information, does not constitute new evidence.
[30]
I
would first note that the applicant was never in possession of his original
birth certificate while in Canada, nor a photocopy of it, therefore I
believe that the officer is mistaken on this point. The photocopy of the
restored birth certificate therefore would have contained new information which
was relevant to establishing the applicant’s identity. The officer noted that
the applicant had obtained his restored birth certificate from his sister, and
since there was no information as to when he had contacted her, this led to the
conclusion that he had contacted her after his first PRRA application was
rejected. However, the applicant submitted an affidavit to the PRRA officer
which stated the following:
When I found out at the hearing that they
wanted my birth certificate, I started to make efforts to get it. At the time I
did not have contact with my brother and sister so I could not ask them to get
it for me. Once I re-established contact, I discovered that my original birth
certificate had been destroyed when my family’s home was bombed during the war
in Chechnya. To re-establish contact with
them, I had called my mother’s sister’s daughter (my first cousin), Tamara
Kantaeva, who was living in Moscow. She contacted my sister who
then went to the archives to have the document re-issued. My birth certificate
was re-issued on November 26, 2004. My sister then sent it to me here in Canada.
[31]
The
applicant’s refugee claim was refused in August 2003 and his first PRRA was
rejected on November 3, 2004. As noted above, the applicant indicated that he
had attempted to re-establish contact with his sister after his refugee hearing
in order to obtain his birth certificate. Since his original birth certificate
had been destroyed, he had to obtain a re-issued copy. The officer found that
the applicant had provided insufficient objective evidence that his family home
had been destroyed. In my view, it was unreasonable to penalize the applicant
for having failed to obtain objective evidence pertaining to the destruction of
a single home during a bombing.
[32]
It
is important to consider the circumstances of this case in determining whether
the re-issued birth certificate can be considered new evidence. The Board lost
his original internal passport and military work book. The internal passport indicated
that the applicant was of Chechen ethnicity. The applicant stated that his
original birth certificate was destroyed when his family home was bombed during
the war. When the Board failed to accept that he was of Chechen ethnicity, he
tried to re-establish contact with his sister. His affidavit evidence stated
that he started this process after his failed refugee hearing, but was only
able to get the birth certificate re-issued on November 26, 2004 at which time
his sister mailed it to him in Canada. The applicant’s first PRRA was refused on
November 3, 2004. The re-issued birth certificate was not available until after
the first PRRA application was rejected.
[33]
I
am of the view that based on these facts, the re-issued birth certificate is
new evidence within the meaning of subsection 113(a) of IRPA, and should have
been considered by the officer. The officer’s finding that the re-issued birth
certificate did not constitute new evidence was patently unreasonable and must
be set aside.
[34]
The
decision of the officer is therefore set aside and the matter is referred to a
different officer for redetermination.
[35]
The
applicant submitted the following proposed serious questions of general
importance for my consideration for certification:
Given the potential importance a PRRA
decision can have and the serious ramifications that can result from a negative
assessment; what interpretation should PRRA officers apply to section 113(a) in
deciding what constitutes “new evidence” that the applicant “could not
reasonably have been expected in the circumstances to have presented, at the
time of the rejection”?
What is the meaning of the third prong of
the definition of “new evidence” found in s. 113(a) of IRPA, namely that the
applicant “could not reasonably have been expected in the circumstances to have
presented, at the time of the rejection”?
[36]
I
have reviewed the submissions of counsel and I accept the position put forward
by the respondent. Thus, I am not prepared to certify either question.
JUDGMENT
[37]
IT
IS ORDERED that the decision of the PRRA officer is set aside and the matter
is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
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112.(1)
A person in Canada, other than a person referred to in subsection 115(1),
may, in accordance with the regulations, apply to the Minister for protection
if they are subject to a removal order that is in force or are named in a
certificate described in subsection 77(1).
(2) Despite subsection (1), a person
may not apply for protection if
(a) they are
the subject of an authority to proceed issued under section 15 of the
Extradition Act;
(b) they have
made a claim to refugee protection that has been determined under paragraph
101(1)(e) to be ineligible;
(c) in the
case of a person who has not left Canada since the application for protection
was rejected, the prescribed period has not expired; or
(d) in the
case of a person who has left Canada since the removal order came into force,
less than six months have passed since they left Canada after their claim to refugee protection was determined to
be ineligible, abandoned, withdrawn or rejected, or their application for
protection was rejected.
(3) Refugee
protection may not result from an application for protection if the person
(a) is
determined to be inadmissible on grounds of security, violating human or
international rights or organized criminality;
(b) is
determined to be inadmissible on grounds of serious criminality with respect
to a conviction in Canada punished by a term of imprisonment of at least two
years or with respect to a conviction outside Canada for an offence that, if
committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years;
(c) made a
claim to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention; or
(d) is named
in a certificate referred to in subsection 77(1).
113. Consideration of an application for
protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection;
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
(c) in the
case of an applicant not described in subsection 112(3), consideration shall
be on the basis of sections 96 to 98;
(d) in the
case of an applicant described in subsection 112(3), consideration shall be
on the basis of the factors set out in section 97 and
(i) in the
case of an applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii) in the
case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of Canada.
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112.(1)
La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1)
peut, conformément aux règlements, demander la protection au ministre si elle
est visée par une mesure de renvoi ayant pris effet ou nommée au certificat
visé au paragraphe 77(1).
(2)
Elle n’est pas admise à demander la protection dans les cas suivants:
a)
elle est visée par un arrêté introductif d’instance pris au titre de l’article
15 de la Loi sur l’extradition;
b)
sa demande d’asile a été jugée irrecevable au titre de l’alinéa 101(1)e);
c)
si elle n’a pas quitté le Canada après le rejet de sa demande de protection,
le délai prévu par règlement n’a pas expiré;
d)
dans le cas contraire, six mois ne se sont pas écoulés depuis son départ
consécutif soit au rejet de sa demande d’asile ou de protection, soit à un
prononcé d’irrecevabilité, de désistement ou de retrait de sa demande
d’asile.
(3) L’asile ne peut être
conféré au demandeur dans les cas suivants:
a)
il est interdit de territoire pour raison de sécurité ou pour atteinte aux
droits humains ou internationaux ou criminalité organisée;
b)
il est interdit de territoire pour grande criminalité pour déclaration de
culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour
toute déclaration de culpabilité à l’extérieur du Canada pour une infraction
qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c)
il a été débouté de sa demande d’asile au titre de la section F de l’article
premier de la Convention sur les réfugiés;
d)
il est nommé au certificat visé au paragraphe 77(1).
113.
Il est disposé de la demande comme il suit:
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
b)
une audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part:
(i)
soit du fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii)
soit, dans le cas de tout autre demandeur, du fait que la demande devrait
être rejetée en raison de la nature et de la gravité de ses actes passés ou
du danger qu’il constitue pour la sécurité du Canada.
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The Immigration
and Refugee Protection Regulations, S.O.R./2002-227.:
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161.(1)
A person applying for protection may make written submissions in support of
their application and for that purpose may be assisted, at their own expense,
by a barrister or solicitor or other counsel.
(2) A person
who makes written submissions must identify the evidence presented that meets
the requirements of paragraph 113(a) of the Act and indicate how that
evidence relates to them.
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161.(1)
Le demandeur peut présenter des observations écrites pour étayer sa demande
de protection et peut, à cette fin, être assisté, à ses frais, par un avocat
ou un autre conseil.
(2)
Il désigne, dans ses observations écrites, les éléments de preuve qui
satisfont aux exigences prévues à l’alinéa 113a) de la Loi et indique dans
quelle mesure ils s’appliquent dans son cas.
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