Date: 20081031
Docket: IMM-966-08
Citation: 2008 FC 1202
Montréal,
Quebec, October 31, 2008
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
IRINA
VOLOSHINA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The applicant is seeking the judicial
review of the decision of a pre-removal risk assessment officer (PRRA officer),
dated January 16, 2008, to the effect that the applicant would have no serious
reason to fear a danger
of torture or a risk to life or cruel or unusual treatment or punishment
if she were to return to her country.
[2]
The applicant’s son, Vyacheslav Voloshin, abandoned
a similar application on October 9, 2008,
filed in docket IMM-967-08 against a decision
of the same PRRA officer, dated January 16, 2008, with the same
determination as the decision on his mother’s PRRA application.
II The facts
[3]
A
citizen of Kazakhstan, the applicant
arrived in Canada on May 10, 1997, with her
son Vyacheslav, and both claimed refugee status.
[4]
The
applicant’s story is quite long and complex. She claims that she wanted to flee
with her son from the persecution of Kazakh nationalists in Kazakhstan based on
their Russian nationality. They claim that they were beaten and threatened.
[5]
Their
refugee claim was refused on December 1, 1997, when the panel (IRB) determined
that the threats against them came from people involved in organized crime and
that their nationality was not at issue. An application for leave and for
judicial review of this decision was refused.
[6]
The
applicant and her son then filed an application for admission in the
Post-Determination Refugee Claimants in Canada Class (PDRCC). This application
was not decided but rather led to the PRRA application dated March 7, 2005.
[7]
In
the interim, in 1998 the applicant married Ghislain Ouellette, a Canadian
citizen, and on March 27, 1998, her husband filed a sponsorship application
for the applicant and her son. This application was reviewed as an application
by an immigrant in Canada based on humanitarian and compassionate
considerations, in accordance with subsection 114(2) of the Immigration
Act, 1978, and section 2.1 of the Immigration Regulations, 1978 (former Act).
In 1999, the applicant was granted a ministerial exemption from her obligation
to obtain her visa from outside Canada.
[8]
However,
on September
8, 2000,
in accordance with section 27 of the former Act, an inadmissibility report
was made against the applicant on
the grounds of serious criminality
in
Kazakhstan. This report
indicates that in Kazakhstan an arrest warrant was issued against the applicant
on July 9, 1997, for fraud
involving $500,000 US, an act which would be punishable by a maximum term of 10
years in prison had it been committed in Canada.
[9]
The
applicant impugned this report and the review of her case based on humanitarian
and compassionate considerations (HC application) continued pursuant to
subsection 25(1) of the Immigration and Refugee Protection Act (IRPA)
which came into force in 2002. On February 28, 2003, an
immigration officer dismissed the HC application on the grounds that the
applicant was inadmissible for serious criminality under paragraph 36(1)(b)
of the IRPA.
[10]
The
applicant appealed this decision before the Immigration Appeal Division (IAD), but
the respondent challenged the IAD’s jurisdiction to hear this appeal. Finally,
on October 17, 2003, the
IAD dismissed the applicant’s appeal of the refusal of her application based on
humanitarian and compassionate considerations.
[11]
The
IAD’s decision was not the subject of any application for judicial review and
was followed by the PRRA application refusing the decision, which is
contemplated in this judicial review proceeding.
III PRRA decision
[12]
The
PRRA officer summarizes the applicant’s story and notes the absence of new information
on the situation in Kazakhstan since the IRB’s negative determination on the
same risks. After that he determined that the applicant had not established
that there were serious grounds to suggest that she would be personally
subjected to torture within the meaning of article 1 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Convention against Torture) or to a risk of cruel or unusual treatment or
punishment as described in section 97 of the IRPA.
[13]
The
PRRA officer points out that the PRRA must not be used to appeal the decision
on an HC application such that [translation] “despite
the existence of police certificates” raised by the applicant in support of her
innocence of the crimes of which she was accused, he could also not disregard
the fact that there was [translation] “also
probative evidence … referring to a criminal charge and the refusal of the HC
application referring to a criminal conviction in Kazakhstan, contradicting the
applicant’s evidence.”
[14]
From
there, the PRRA officer considered two possibilities:
a.
In the
event that there were no charge or conviction against the applicant in Kazakhstan
this would not [translation] “subject
her to imprisonment or detention in Kazakhstan and she would not be subject to
a risk to her life or a danger of torture or a risk of cruel and unusual
treatment or punishment”
b.
In the
event where the warrant referred to in the HC decision involved [translation] “the same
fraud for which the applicant had been convicted in Kazakhstan in 2002 … even
if the information and evidence do not indicate that it is necessarily likely
that the applicant will be imprisoned or detained in Kazakhstan based on the
old arrest warrant,” but considering nevertheless the possibility of detention
or imprisonment in Kazakhstan for this charge, it is unlikely that [translation] “she will
be subjected to persecution pursuant to the Convention … or … to a risk to her
life, a danger of torture or a risk of cruel and unusual treatment or
punishment.”
IV Issue
[15]
Was
the PRRA officer’s decision based on erroneous findings of fact, perverse or
capricious, disregarding the evidence?
V Analysis
[16]
The
risk determination
of the PRRA officer is essentially based on an assessment of the facts and for
this reason, his decision must be afforded great deference so that the
appropriate standard of review is that of “unreasonableness” (Dunsmuir v. New Brunswick, 2008 SCC 9).
Unreasonable
decision
The applicant
[17]
The
applicant insists that there is an undue risk that she will be incarcerated and
mistreated if she returns to Kazakhstan and insists on the fact that despite
her many requests, she was never informed of the source of the information on
which the Minister’s decision was based to the effect that she was the subject
of a charge and conviction for a serious criminal act in Kazakhstan. Accordingly,
she does not have any available means to counter the charge or refute its
existence.
[18]
The
officer allegedly required from the applicant incontrovertible evidence to
establish the consequences of her removal, while accepting questionable evidence
to justify her removal, failing to consider that the applicant denied that she
had been charged in Kazakhstan, even though he acknowledged the uncertainty of
these criminal charges.
The
respondent
[19]
The
applicant never challenged the HC decision through an application for judicial
review and cannot use the PRRA application to appeal this decision or to avail
herself after it is too late of evidence tending to establish that natural
justice was not respected because certain documents were not disclosed to her. The
principle of res judicata must be applied in this case.
[20]
The
applicant did not establish the unreasonableness of the inferences made by the
PRRA officer from the documentary evidence, even if she does not agree with
them. It is not this Court’s responsibility to assess the evidence that the PRRA
officer had to assess within his power and with the benefit of his expertise.
VI Analysis
[21]
The
applicant alleges that the PRRA officer breached the principle of natural justice
because the evidence on which her inadmissibility to Canada was based
was not disclosed to her. This is a serious allegation that should have been
raised at the first opportunity, failing which it must be presumed that the individual
making the allegation has waived this recourse (Yassine v. Canada (Minister
of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.)).
[22]
In
failing to file an application for leave and for judicial review of the HC decision
refusing her application on humanitarian and compassionate considerations, the applicant
waived her right to make a timely challenge of the alleged breach of procedural
fairness now alleged against the PRRA officer to impugn his decision.
[23]
The
PRRA must not be used as an appeal of the HC application which now has the
effect of res judicata. As the applicant did not use this recourse in a
timely fashion or give reasons for her delay in so doing, her arguments on this
point are inadmissible (Singh v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 1572).
[24]
Indeed,
the PRRA officer’s findings on the condition of women in Kazakhstan do not seem
unreasonable given the evidence analysed by him, including the general reports
on the detention conditions in Kazakhstan and the measures taken by government
authorities to improve conditions for prisoners.
[25]
It
is not enough that the applicant indicated her disagreement with the inferences
made from the documentary evidence by the PRRA officer, it also had to be
established how these inferences were unreasonable and she failed to persuade
the Court of this.
[26]
It
is the PRRA officer’s responsibility to assess and weigh the evidence, not the
Court’s responsibility when it is sitting in judicial review (Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1; Ahani
v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 2). Yet, through her
arguments, the applicant is asking this Court to do no less than substitute its
assessment of the evidence for that of the PRRA officer, which is not the role
of the Court (Oduro v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 560; Mohimani v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 564 (F.C.A.)).
[27]
The
applicant complicated matters by the tardy submission of a ground that she
could have raised against the HC decision, but before this decision became res
judicata. A large part of the applicant’s challenge before the PRRA officer
involved the HC decision, which she never stopped challenging. Unfortunately
for the applicant, the PRRA officer was entitled to point out to her that the PRRA
must not be used to appeal the HC decision, and that the PRRA must only be used
to assess the risks that the applicant alleges she would be subject to if she
were to her native country, and not to contradict the Department’s observation
of the fact that she was guilty of fraud. The PRRA officer’s decision is far
from being unreasonable.
[28]
In
his decision, the PRRA officer contemplated the potential consequences of the applicant’s
removal to her country, while the applicant did not establish before this Court
how the findings of this decision were unreasonable. Indeed, the Court notes
that the impugned decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law. It is therefore a
reasonable decision, resulting in the dismissal of the application for review.
[29]
As
no serious question of general importance was proposed, no question will be
certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice E. Lagacé”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
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