Date: 20080730
Docket: IMM-5318-07
Citation: 2008 FC 910
Montréal, Quebec, July 30, 2008
PRESENT:
The Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
RADIK ANANYAN and
SIMA KHACHOYAN
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by the applicants for judicial review under section 72(1) of
the Immigration and Refugee Protection Act (the Act), of a negative
decision dated October 31, 2007, by a pre‑removal risk
assessment officer (PRRA officer).
I. Facts
[2]
The
applicants, both Armenian citizens, say that they fear the Armenian authorities
because the applicant Radik Ananyan acquired knowledge about corruption
in this country while working as an engineer for the Armenian government.
[3]
When
he denounced the corruption, Mr. Ananyan was demoted and lost his
apartment. His family left Armenia to settle in Bulgaria, where he
joined them in 1993. Harassed in Bulgaria, the applicants left in 1999 for
Russia where one of their sons lived.
[4]
Ms. Khachoyan
returned to Armenia in 2003 to
be closer to her father, and the applicant joined her in July 2004. After
receiving threats, the applicants left their country and arrived in Canada on October
25, 2004, with visitors visas; they claimed refugee protection on October 29, 2004.
[5]
That
claim was dismissed on November 25, 2005, because the applicants were found to
be not credible and failed to prove their allegations. On March 15, 2006, the
Court refused to grant leave to apply for judicial review of the negative
decision denying their refugee claim.
[6]
The
applicants subsequently applied for permanent residence based on humanitarian
and compassionate grounds and filed the application in Canada, rather than
abroad. An immigration officer denied this application on October 31, 2007.
[7]
On
November 10, 2006, the applicants also filed an application for a pre-removal
risk assessment (PRRA), and relied on the same risks and events described in
their refugee claim, with the addition, however, of one piece of evidence. The
evidence consisted of a notification addressed to them dated August 14, 2006,
which apparently came from the Internal Security Department of the Ministry of Internal
Affairs of the Republic of Armenia; the notification indicated that this authority
had enough information to initiate criminal proceedings against them for
defaming the Armenian president and his government in their claims for refugee
protection and permanent residence in Canada. The notification reads as follows:
Republic of Armenia
Ministry of Internal Affairs
Internal Security Department
130 Nalbandyan ave.
City of Erevan 377025
14.08.2006
TO: Ananyan, Sima Khachoyan
Residing at 4
Sayat-Nova ave. # 27
City
of Erevan, Republic of Armenia
NOTIFICATION
On August 28, 2006 at 10 am along with
your passports you must present yourself at the Investigation Department of the
Ministry of Internal Affairs of Republic of Armenia for an interview with
colonel Nagapetyan.
We also inform you that the investigation
department gathered all the necessary information in order to initiate a
criminal procedure against you. According to our investigation, you being in
Canada slandered our president, our government in order to become a permanent
resident of Canada as a convention refugee.
At the interview you can confirm or
refuse the evidences, which are being in the possession of our department.
If you failed to appear for the interview
you will be obliged to be present mandatory and criminal charges can be laid
against you.
Colonel: Nagapetyan A.
Signature: signed
Round Seal is applied
(Translated from the Armenian language)
[8]
Despite
accepting this new evidence, the PRRA officer determined that the applicants had
still not discharged their evidentiary burden and had still not established that
they would be personally at risk should they return to Armenia; consequently,
the officer dismissed their PRRA application. This negative PRRA decision is
the subject of this application for judicial review.
II. Issues
[9]
This
case raises two issues:
a. Did the PRRA
officer err by giving no weight to the notice sent by the Armenian authorities
to the applicants?
b. Did the PRRA
officer err by choosing not to hear the applicants despite the existence of new
evidence relating to the factors set out in sections 96 and 97 of the Act?
III. Standard of review
[10]
The
appropriate standard of review for decisions of PRRA officers is correctness for
questions of law outside the tribunal’s jurisdiction and reasonableness for
questions of fact (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] S.C.J. No. 9 (QL)). Procedural fairness and natural justice are subject
to the correctness standard.
IV. Analysis
[11]
The
PRRA officer did not doubt the authenticity of the notification issued by the Armenian
Ministry of Internal Affairs, and if he did, he did not mention it. Although he
wondered very briefly about the circumstances that led to the Armenian
authorities being informed of the applicants’ applications for refugee and
permanent resident status, the PRRA officer did not pursue this thought and did
not try to obtain more information as to how important this evidence was for the
applicants.
[12]
However,
the PRRA officer acknowledged in his decision that this notification was new
evidence within the meaning of the Act. Why did he not assess this new evidence
on its merits? Not by requiring additional evidence about Armenia’s treatment
of other Armenian nationals who have claimed refugee status abroad, but rather
by assessing the applicants’ personal fears about the risks, treatment and
punishment indicated by the Armenian authorities’ notification; it appears prima
facie that the applicants would be subjected to such risks, treatment and
punishment should they be forced to return to their country of origin.
[13]
Without
giving reasons, the PRRA officer assigned very little weight to the new
evidence, despite its obvious importance to the applicants because, to a
certain extent, it corroborated the fear that they were describing.
[14]
It
is not sufficient for the PRRA officer to say that he [translation] “gave very little weight to the notification
that was submitted” and issued by the Armenian authorities. A reason must be
given, especially because this was important new evidence for the applicants,
the only evidence that could really corroborate the applicants’ fear in an
objective manner. Given that the immigration officer did not assess the
authenticity of the document, it must be considered genuine, unless there is
reason to doubt its authenticity, which is not indicated in the decision. This
principle is even more relevant in this case because the document on its face
appears to come from an official source (Sitoo v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1513 at paragraph 12).
[15]
The
applicants are entitled to know why the PRRA officer attached no importance to
this document, presented under the official seal of the Armenian authorities,
which targets them personally. Why would it be more useful and persuasive to
establish that other Armenian nationals in similar circumstances have suffered
the same fate? By diminishing the importance of this new evidence to the point
of assigning it no probative value and without saying why, and by requiring additional
evidence that was irrelevant to the applicants’ personal situation, the PRRA
officer made an unreasonable error warranting the intervention of this Court.
The officer failed to appropriately consider the new evidence about the risks that
the applicants would be personally subjected to, and this failure results in
the decision being set aside.
[16]
The
applicants are asking this Court to re-assess the evidence, but that is not its
role on an application for judicial review.
[17]
Given
the determination on the first issue, the Court sees no need to rule on the
second issue, i.e., whether the PRRA officer was required to hold a hearing as
a result of the new evidence that was related to the factors set out in
sections 96 and 97 of the Act. Could this perhaps be a factor that falls within
section 167, to be considered in deciding whether a hearing is required or not,
to the extent that an applicant’s credibility or the authenticity of evidence
is being challenged?
[18]
It
will be up to another PRRA officer to answer that question and to decide on the
procedure to be followed, that, in his or her view, would be useful. The Court
sees no need to rule on this issue, other than to note that, in general, the
officer dealing with a PRRA application does not generally hold a hearing but
may do so in exceptional circumstances when all the conditions set out in section
167 of the Act are met.
[19]
Given
the error made by the PRRA officer in considering the new evidence, his
decision will be set aside. The parties did not submit a question of general
interest for certification, and the Court itself does not see one.
JUDGMENT
FOR THESE REASONS, THE
COURT:
ALLOWS the application for
judicial review,
SETS ASIDE
the PRRA decision dated October 31, 2007, and
REMITS
the application for redetermination by a different immigration officer.
“Maurice E. Lagacé”
Certified true
translation
Mary Jo Egan, LLB
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