A senior Canadian immigration officer who unreasonably concluded that deporting a Russian would not land him in prison for refusing the draft, and would not listen to his arguments about not wanting to kill Ukrainians, has seen the decision overturned in Federal Court.
Ruslan Valeev — who already did two years in the Russian military — turned to the court after an immigration officer concluded he’d only face a minimal fine if he returned to Russia and refused to comply with a military summons he received in October 2022.
“I am aware that if I return to Russia, then there is a real threat that I will be forcibly sent to war and forced to kill Ukrainians,” Valeev told the court.
“I don’t want to take any part in these war crimes. In general, I am against the war unleashed by the Putin regime. And if I refuse to join the army, they will find a way to set up a criminal prosecution and sentence me to a long prison term.”
Valeev applied for a judicial review of the immigration officer’s refusal of his pre-removal risk assessment — his last-ditch plea to stay in Canada.
“The applicant, a citizen of Russia, invoked the risk he fears for not responding to a military mobilization summons issued in October 2022,” Justice Anne M. Turley said in a recent decision.
“He also claimed a fear of religious persecution based on his Tartar ethnicity. The officer rejected both grounds, finding that the punishment for refusing to comply with a military summons does not amount to cruel or unusual treatment or punishment and that there was little objective evidence adduced regarding the persecution of Tartars in Russia.”
The judge allowed the application because “the officer’s decision regarding (Valeev’s) fear of military conscription is unreasonable in two ways.
“First, the officer failed to consider contradictory objective evidence in concluding that (Valeev) would only be subject to a minimal fine if he fails to comply with the military summons,” Turley said in a written decision dated Nov. 13.
“Second, the officer failed to engage with (Valeev’s) reason for not wanting to serve in the Russian military.”
Valeev “served in the Russian military for two years, between May 1999 and May 2001,” said the judge.
The immigration officer accepted his “evidence about receiving a military summons in October 2022. However, based on objective evidence in the national documentation package, the officer concluded that the penalty for not responding to a summons is an administrative fine of 500–3,000 rubles (equivalent to approximately 7–42 Canadian dollars). The officer held that this does not amount to cruel or unusual treatment or punishment requiring protection.”
According to Canada’s Immigration and Refugee Board, national documentation packages “are lists of public documents that provide information on country conditions” that are updated on a “regular basis” and “support the refugee determination process.”
Valeev argued “that there was contradictory evidence in the same” national documentation package that the immigration officer failed to consider.
“I agree,” Turley said.
“According to that evidence, Russia’s Criminal Code was amended in September 2022 such that if reservists, like (Valeev), refuse to participate in military or combat actions, they face two to three years of imprisonment. Further, if the consequences of refusal are deemed serious, the prison term can be three to 10 years. Based on this evidence, (Valeev) is at risk of criminal sanction, including imprisonment, for non-compliance with the military summons.”
The immigration officer’s “failure to consider and engage with the above-noted evidence renders their decision unreasonable,” said the judge.
She also agreed that the immigration officer “erred in failing to engage with (Valeev’s) explanation of why he did not want to serve in the Russian military.”
The immigration officer’s “failure to mention let alone grapple with (Valeev’s) evidence that he does not want to participate in war crimes renders the officer’s decision unreasonable,” said the judge.
“For these reasons, the application for judicial review is granted.”
She set aside the immigration officer’s Nov. 21, 2023, decision and sent Valeev’s case back “to a different officer for redetermination.”
In an interview Friday, Valeev’s lawyer said her client, who is about 40 and living in Ontario, is hoping to get permanent residency status in Canada.
“He’s a religious person,” said Anna Davtyan, who practices immigration law in Toronto.
When Valeev asked the immigration officer to allow him to stay in Canada, she said, “he mentioned, ‘I’m religious. I don’t want to go to the war. I don’t want to kill people. It’s against my religion.’”
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