2014 FC, 2014 FC 1106

Date: 20141121 Docket: IMM-1975-13 Citation: 2014 FC 1106 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, November 21, 2014 PRESENT: The Honourable Mr. Justice Shore BETWEEN: VITALY SAVIN ARTEM GARANIN Applicants and MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Introduction [ 1 ] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 (IRPA), for judicial review of a decision of the Refugee Protection Division (RPD), dated February 6, 2013, according to which the applicants are not “Convention refugees” or “persons in need of protection” under sections 96 and 97 of the IRPA. II. Facts and

summary of proceedings [ 2 ] The applicants, Mr. Savin and Mr. Garanin, are homosexual males and citizens of Russia, and are 32 and 26 years of age respectively. They claim that they have been persecuted in Russia because of their sexual orientation. The applicants contend that homosexuals are discriminated against and persecuted by the civilian population and by the authorities, and that the situation has deteriorated in recent years, namely by the enactment of laws directed at [ translation ] “gay propaganda” in Russia. In addition, Mr.

Garanin claims that because if his sexual orientation, he risks not having access to adequate medical care regarding his HIV-positive status. [ 3 ] The applicants allege that they have been victims of numerous discriminatory acts in terms of, among other things, employment, family, education and social activities. In particular, the applicants allege that they were attacked by a homophobic group in September 2011, which caused Mr.

Savin to become depressed and which prevented him from working for a few weeks. [ 4 ] The applicants decided to leave Russia for Canada on November 6, 2011, and claimed refugee protection on November 24 of the same year. [ 5 ] Following a hearing that took place before the Immigration and Refugee Board (IRB) on January 23, 2013, the RPD found that the discriminatory acts experienced by the applicants in Russia do not constitute persecution. The RPD also acknowledged the existence of an internal flight alternative in St. Petersburg.

As a result, the RPD found that the applicants are not “Convention refugees” or “persons in need of protection” within the meaning of sections 96 and 97 of the IRPA . [ 6 ] On March 14, 2013, the applicants filed an application for judicial review of the RPD’s decision with the Court. On November 21, 2013, an order was issued, requiring the parties to file supplementary memoranda concerning the developments in Russia regarding the situation of sexual minorities. [ 7 ] As such, on September 2, 2014, the applicants filed supplementary memoranda and new evidence, as ordered by the Court on November 21, 2013. III.

Relevant statutory provisions [ 8 ] The following sections state the criteria to be established in support of a claim for protection under the IRPA : Convention refugee Définition de « réfugié »

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, 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) 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

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) 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.

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. Person in need of protection Personne à protéger 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 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) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the Convention Against Torture; or

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) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (

i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (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, (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) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (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) the risk is not caused by the inability of that country to provide adequate health or medical care. (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 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.

(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. Exclusion – Refugee Convention Exclusion par application de la Convention sur les réfugiés 98 . A person referred to in

section E or F of

Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 98 . La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. IV. Issues [ 9 ] The following issues are put to the Court: (

a) Do the circumstances justify granting an extension of time for filing the application for judicial review? (

b) Can the new evidence submitted by the applicants, in accordance with the directions issued by the Court, be considered? (

c) Is the RPD’s decision based on unreasonable findings or errors of law that would enable the Court to allow the application? V. Analysis

a. Extension of time to hear the application for judicial review [10] The application for judicial review was filed after the 15 days set out in paragraph 72(2)(

b) of the IRPA. The Court mustassess whether the applicable criteria, as set out in Canada (Attorney General) v Hennelly, (1999) (FCA), 244 NR 399(FCA) at paragraph 3, justify an extension of time being granted. The burden is on the applicant to demonstrate the following: (

a) a continuing intention to pursue his or her application; (

b) that the application has some merit; (

c) that no prejudice to the respondent arises from the delay; and (

d) that a reasonable explanation for the delay exists. [11] The Court finds that those conjunctive tests justify granting an extension of time, in order to do justice between the parties(Khalife v Canada (Minister of Citizenship and Immigration), 2006 FC 221 at paragraph 15). The Court finds that the applicants’explanation regarding the delay is reasonable and founded. By filing an application for judicial review the day after being informed bythe IRB that they were unable to appeal to the RAD, the applicants demonstrated a continuing intention to pursue their application. b.

Admissibility of the new evidence submitted by the applicants inaccordance with the directions issued by the Court [12] According to the applicants, the documentation they submitted following the directions issued by the Court establishes thefollowing: (

a) The application of the Russian statute prohibiting [TRANSLATION] “gay propaganda” has significantly and alarminglyincreased the violation of gay rights in Russia; (

b) The Russian authorities take steps with non-governmental organizations that are allegedly [translation] “foreign agents” toattack groups that advocate for the rights of sexual minorities; (

c) The situation exists on a national scale. (Applicants’ supplementary memorandum, at paragraph 21). [13] On the one hand, the applicants contend that the oral direction issued on November 21, 2013, by the Court is consistent withthe principles of the rule of law and

section 7 of the Canadian Charter of Rights and Freedoms (Charter). In particular, the applicantsraise the lack of an available recourse to argue their rights as well as the Court’s corresponding obligation to allow parties to submit newevidence, where the circumstances so warrant (see Aden v Canada (Minister of Employment and Immigration), (FCA), [1994] 1 FC 625). [14] On the other hand, the respondent maintains that the Court cannot consider new evidence that was not part of the recordcreated before the RPD.

The respondent argues that that the evidence should instead be assessed by an immigration officer responsiblefor pre-removal risk assessments (PRRA). The Court noted the substantial significance of Canada (Minister of Public Safety andEmergency Preparedness) v J.P., 2013 FCA 262—the Court is reminded that an inadmissibility finding does not breach the rightsprotected by

section 7 of the Charter because the case is not at the removal stage; and, the essential judgments of the Federal Court ofAppeal summarized in its previously cited decisions reach the same conclusion (see, in particular, paragraphs 116, 120, 123, 124 and 125of the decision itself). The Court also notes Arduengo v Canada (Minister of Citizenship and Immigration), (FC),[1997] 3 FC 468. [15] In a decision with similar circumstances, Justice Yvon Pinard asked the parties to make further submissions following theearthquake in Haiti, which occurred after a PRRA decision had been rendered.

Justice Pinard found that he could not consider the eventsthat occurred in the country subsequent to the impugned decision, even if they were determinative in that decision (Nicholas v Canada(Minister of Citizenship and Immigration), 2010 FC 452). The following excerpt from Justice Pinard’s decision is instructive: [42] In conducting a judicial review of the PRRA decision, the Court itself also may not have regard to that later event.

It is settledlaw that it is not the role of the Court in that situation to assess fresh evidence and substitute its decision for the decision of the PRRAofficer. [43] In Isomi, above, my colleague Justice Simon Noël stated: [10] I do not see how the factual situation described by the applicant or the argument submitted could call into question the case lawof this Court. Under

section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, an application for judicial review of a decision isconsidered on the basis of the evidence submitted to the decision-maker. Any addition to this evidence would change the role of thejudge hearing such cases. The judge would be able to make a determination by taking new evidence into consideration, which wouldeffectively remove the judge from his or her role as a judge hearing an application for judicial review. Moreover, the applicant has analternative at his disposition, namely

section 165 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations),which allows the filing of a new PRRA application and the use of “new” evidence in support of this application. Accordingly, I do notsee how the Charter may be of any use, given the situation in this case. [Emphasis in original.]

[16] The Court is bound by the record submitted before the RPD. The possibility for the Court to admit extrinsic evidence to therecord submitted before the RPD is limited “to those circumstances in which the only way to get at the want of jurisdiction is by thebringing of such new evidence before the reviewing Court” (Gitxsan Treaty Society v Hospital Employees’ Union, (FCA), [1999] F.C.J. No 1192 at paragraph 13).

The role of the Court, as a forum for judicial review, is not to engage in a de novoassessment of the record that was submitted before the RPD. [17] However, the applicants could raise the new recognized evidence in a PRRA, so that an officer could do an in-depthassessment of the documentation prepared by the applicants concerning sexual minorities in Russia, namely the situation stemming fromthe enactment of the law prohibiting [TRANSLATION] “gay propaganda”. c.

The reasonableness of the RPD’s decision [18] Based on the testimony of the applicants and the documentary evidence in support of their claim, the RPD recognized both theapplicants’ credibility regarding their homosexuality and the existence of discrimination against members of the lesbian, gay, bisexualand transgender (LGBT) community in Russia. Nevertheless, the RPD found that the discrimination and violence experienced by theapplicants do not constitute persecution.

In reaching that finding, the RPD did an in-depth review of the applicants’ record, of therelevant case law, as well as of the principles of the Handbook on Procedures and Criteria for Determining Refugee Status under the1951 Convention and the 1967 Protocol relating to the Status of Refugees.

In addition, the RPD carried out an analysis to determinewhether those discriminatory acts, taken on a cumulative basis, may create fear of persecution (RPD Decision, at paragraphs 44-48). [19] The RPD concluded the following at paragraphs 35-36: [35] The panel understands the desires of the claimants to be recognized as a couple, to have the power to make legal decisions foreach other and even to be able to open a joint bank account as a couple.

While no doubt discrimination against homosexuals exists inRussia, the situation would appear to be slowly changing, as evidenced by the recent Supreme Court decision concerning the propagandaban.

Members of the claimant’s families, friends, Vitaly’s employer and the choir director in which Artem sang, were just some of thepeople who accepted the claimant’s homosexuality, even though these may not be the views of the majority of Russians. [36] The panel does not find, however, that there was persuasive evidence before it to suggest that the claimants experiencedwidespread or systematic mistreatment rising to the level of persecution. [20] In its reasons, the RPD analyzed the discrimination suffered by the applicants, the efforts undertaken by the applicants toreport those discriminatory acts to the Russian authorities, the applicants’ trips to Sweden and Italy in 2011 and their opportunity to claimrefugee protection in those countries, the existence of groups advocating for the rights of members of the LGBT community in Russiaand their activities, the applicants’ involvement in that same community and the impact of the laws created in Russia limiting the rightsof members of the LGBT community.

The RPD raised doubts regarding the credibility of the applicants concerning certain alleged facts,namely with respect to the dismissal of Mr. Savin in 2009 because of his sexual orientation. [21] Furthermore, regarding an internal flight alternative, the RPD assessed the opportunity for the applicants to settle in St.Petersburg. In particular, the RPD found that before arriving in Canada, the applicants spent one month in St. Petersburg and did notexperience any particular problems.

The RPD also raised some deficiencies with respect to the applicants’ credibility, in particularregarding their alleged fear and an internal flight alternative: [54] The panel does not accept that the claimants have a well-founded fear of persecution in Russia for the reasons mentioned above.St-Petersburg has a thriving gay community. While the claimants stated some of their friends have attempted to go live there and werequickly disillusioned, this would depend on the ability of a person to find employment in the city. The claimants are both educatedpersons with solid work experience.

They spent a month in that city before coming to Canada and were not harmed.

The inter-regionalRussian LGBT Network, formed in 2006, provides legal and psychological assistance, monitors violations of human rights, and aims ateliminating discriminations based on sexual orientation and gender identity and it has regional offices in St-Petersburg. “Coming out”, aLGBT organization in St-Petersburg, was officially registered by the Russian government; it was reportedly the first time anorganization which openly declared its goal of advocating for the LGBT community was registered on the first attempt without courtintervention (ILGA Europe 16 Feb. 2009).

The panel finds that, should they not wish to return to Samara, the claimants would have aviable internal flight alternative in St-Petersburg. (RPD Decision, at paragraph 54). [22] The Court is of the opinion that the RPD did not commit any error that could warrant the intervention of the Court. Instead,the RPD’s analysis shows an in-depth review of the applicants’ record and of the documentation submitted by the parties in order toreject the applicants’ claim for refugee status. VI. Conclusion [23] The Court is of the view that in light of the above-mentioned reasons, the Court’s intervention is not warranted.

Theapplication for judicial review is dismissed. JUDGMENT THE COURT ORDERS AND ADJUDGES that 1. The application for judicial review is dismissed;

2. There is no question for certification. “Michel M.J. Shore” Judge Certified true translation Janine Anderson, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1975-13 STYLE OF CAUSE: VITALY SAVIN AND ARTEM GARANIN v MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: november 19, 2014 JUdGMENT and reasons: SHORE J. DATED: november 21, 2014 APPEARANCES : Noël Saint-Pierre FOR THE APPLICANTS Alain Langlois FOR THE RESPONDENT SOLICITORS OF RECORD : Saint-Pierre Perron Leroux Avocats Inc. Montréal, Quebec FOR THE APPLICANTS William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE RESPONDENT