Date:
20060925
Docket:
IMM-289-06
Citation:
2006 FC 1113
BETWEEN:
DIENE
KABA and
FATOUMATA
KABA
Applicants
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PINARD J.
[1] This is an application for judicial
review of a decision of Citizenship and Immigration Canada (CIC), dated
December 16, 2005, denying the applicants’ application for protection pursuant
to a pre-removal risk assessment (PRRA).
I. The facts
[2] The principal applicant, Diene Kaba
(the applicant), and her daughter, likewise an applicant in this proceeding,
are citizens of Guinea. The applicant alleges that she has been in fear of her
husband, for herself and her daughter, for many years, since 1993 and more
particularly since February 20, 2001.
[3] In January 1992, the applicant
married Karou Kaba, the father of her daughter. All three left to live in Gabon
in March 1992.
[4] While she was living in Gabon, the
applicant made numerous trips to African countries and she also stayed in the
United States from November 23 to December 1, 1996.
[5] On February 20, 2001, the applicant
alleges, her husband made arrangements to carry out an excision of their
daughter. However, the applicant managed to return in time and to flee with her
daughter.
[6] In February 2001, the applicant
travelled to France without her daughter, although she was already in
possession of the necessary documents to leave Gabon with her.
[7] Following this stay in France, the
applicant returned to Gabon to rejoin her husband and her daughter, who had
stayed with her father.
[8] On April 2, 2001, the applicant
obtained a Canadian visa issued in Libreville.
[9] On May 25, 2001, she left Gabon
together with her daughter. They arrived in Canada on May 27, 2001, after
travelling via Morocco and France.
[10] Upon her arrival in Canada, the
applicant filed a refugee claim for her and her daughter of minor age, alleging
that she feared her polygamous husband who was mistreating her and who wanted
the excision of his daughter.
[11] On September 17, 2002, the Refugee
Protection Division (the RPD) delivered a negative decision, denying the
applicants status as refugees and as persons in need of protection. The RPD
found a lack of credibility in the story as alleged, and a lack of subjective
fear.
[12] In October 2002, an application for
leave and for judicial review of this negative decision of the RPD was filed in
this Court. This application for leave and for judicial review was dismissed on
February 3, 2003.
[13] On March 3, 2003, the Case
Processing Centre in Vegreville received the applicants’ application for a visa
waiver on humanitarian and compassionate grounds (HC).
[14] On December 16, 2005, the HC
application was denied. The applicant filed an application for leave and for judicial
review of this decision (IMM-290-06).
[15] However, on December 16, 2005, after
the date for removal of the applicants from Canada had been set for February
28, 2006, the officer rejected the PRRA application that is the subject of this
application for leave and for judicial review.
[16] On February 22, 2006, the applicants
served a motion for a stay of their removal from Canada. This motion was joined
with the two applications for leave and for judicial review filed by the
applicants in opposition to the decisions concerning their PRRA application and
their HC application.
[17] On February 27, 2006, a hearing was
held on the motion to stay. After hearing from both parties, Blais J. dismissed
the motion to stay. He found that the applicants had failed to demonstrate that
they would suffer irreparable harm should they be returned to their country of
origin.
II. Analysis
A. Violation of natural justice
[18] According to the applicant, the
letters of Mr. Karou Kaba and the uncle Kabine were determinative of the
application for protection since they confirmed a number of things she was
arguing. The letter from her husband, Karou Kaba, demands that their daughter
Fatoumata become a [Translation] “true Muslim” (i.e. excised), and confirms that the applicant
runs the risk of serious and even deadly reprisals should he see her again. The
letter from the uncle Kabine confirms both Mr. Karou Kaba’s threats against the
applicant and the fact that the applicant was beaten previously by her husband,
as well as Mr. Karou Kaba’s intention to excise his daughter.
[19] The applicant
argues that by relying on questions of credibility, the officer decided not to
assign any probative force to these two important documents, to the detriment
of the applicant’s right to a hearing.
[20] Also according
to the applicant, the PRRA officer, in her HC decision, repeats the reasons
given by the IRB for finding that she lacked credibility and refusing her
refugee claim. In doing so, the officer questions the credibility of the applicant’s
entire story without even receiving her for an interview to clarify the
so-called contradictions or inconsistencies that are alleged.
[21] The applicant
argues that the necessity that refugee claimants be given a hearing by the
decision-maker on questions of credibility and findings of fact was determined
earlier by the Supreme Court of Canada in Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177, at page 231:
There are
additional reasons why the appellants ought to have been given an oral hearing.
They are mentioned in the following submission with which I agree:
The Appellants submit that although “fundamental
justice” will not require an oral hearing in every case, where life or liberty
may depend on findings of fact and credibility, and it may in these cases, the
opportunity to make written submissions, even if coupled with an opportunity to
reply in writing to allegations of fact and law against interest, would be
insufficient.
[22] According to the
applicant, the failure to grant a hearing to the claimant conflicts with the
principles of fundamental justice set down in section 7 of the Canadian
Charter of Rights and Freedoms. Paragraph 113(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) states that a
hearing may be held if the Minister, on the basis of prescribed factors, is of
the opinion that a hearing is required, and section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations) states
that the factors used for the purpose of determining whether a hearing is
required are:
(a) whether there
is evidence that raises a serious issue of the applicant’s credibility and is
related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence
is central to the decision with respect to the application for protection; and
(c) whether the
evidence, if accepted, would justify allowing the application for protection.
[23] The applicant
argues, therefore, that this violation of the right to be heard is unwarranted
in light of the fact that the removal decision and the denial of the PRRA and
HC applications have serious consequences on the security, integrity and life
of the applicants.
[24] In my opinion,
the reasons given for the PRRA decision are consistent with the requirements of
the Act and the Regulations. In accordance with the requirements of paragraph
113(a) of the Act, the officer did analyze the “fresh” evidence
submitted by the applicant in support of the PRRA application, but she concluded
that the applicant, following the RPD’s rejection of the refugee claim, had not
adduced any new credible evidence supporting the allegations of personal risk
and capable of overriding the negative conclusion drawn by the RPD.
[25] The duty of fairness
on the officer is determined by paragraph 113(b) of the Act and section
167 of the Regulations. The tests in section 167 are conjunctive, so if the
applicant’s situation fails to meet one test, no hearing will be held. As it
was stated in Bhallu v. Solicitor General of Canada, 2004 FC 1324:
. . . Hearings
within the context of PRRA applications are held only in exceptional cases,
when all the circumstances listed in section 167 of the Regulations are met.
[26] Furthermore, the
officer did not simply discredit these documents owing to the applicant’s lack
of credibility, as she contends.
[27] It is worth
noting, at this point, some salient and undisputed facts that emerge from the
applicant’s file:
·
The applicant alleges that
her daughter will necessarily be a victim of excision, although the facts in
evidence show that she herself, aged 29, lived in Guinea during her youth and
did not undergo excision in her country because her mother always objected to
it.
·
The applicant, who had lived
in Gabon with her husband and daughter since 1992, made a number of trips to
various countries without her daughter accompanying her, notwithstanding the
alleged fear of her husband.
[28] In
this case the applicant failed to fulfill the conditions set out in section 167
of the Regulations and consequently the PRRA officer had no need to summon her
to an interview (see Abdou
v. Solicitor General of Canada, 2004 FC 752; Kim v. Minister of Citizenship and Immigration,
2003 FCTD 321; Allel v. Minister of Citizenship and Immigration, 2003
FCTD 533 and Sylla v. Minister of Citizenship and Immigration, 2004 FC
475).
[29] In these
circumstances, the applicant’s allegation that the officer erred in not
granting her a hearing because of the doubts about her credibility is erroneous.
Even if the officer made findings of credibility, her decision is based
primarily on the insufficiency of the evidence submitted by the applicant to
discharge her onus of establishing that she and/or her daughter personally
incurred any risks of return such as those covered in sections 96 and 97 of the
Act should they return to Guinea.
[30] Moreover, the
right to a hearing is not absolute: a process for reviewing an application that
does not entail any physical encounter between the decision-maker and the
litigant is nevertheless consistent with the principles of natural justice if
the applicant is able to present all of his or her arguments (see, inter
alia, Knight v. Indian
Head School Division No. 19, [1990] 1 S.C.R. 653; Charkaoui v. Minister of Citizenship and
Immigration, 2005 FC 1670; Younis v. Solicitor General of Canada,
2004 FC 266; and Sylla v. Minister of Citizenship and Immigration, supra).
B. Apprehension
of bias
[31] The
applicant maintains that the HC decision and the PRRA decision were made by the
same officer, Hélène Dostie, on December 16, 2005. Thus, the applicant argues,
there is a reasonable apprehension of bias in regard to the HC and PRRA
decisions. This very question of law was recently certified as follows in Oshurova
v. Minister of Citizenship and Immigration, 2005 FC 1321:
Is there an
appearance of bias in this case because the same officer decided the
application for visa exemption on humanitarian and compassionate grounds as
well as the PRRA application?
[32] The applicant
cites paragraph 2(e) of the Canadian Bill of Rights, which provides that
everyone has the right to a fair hearing. The principles of fundamental justice
in section 7 of the Canadian Charter of Rights and Freedoms likewise
guarantee respect of impartiality.
[33] The applicant
argues that Gibson J., in Say v. Solicitor General, 2005 FC 739, held
that the question of independence of the PRRA officer is a serious question of
law and he certified the following question:
Did the Pre-Removal
Risk Assessment Unit, under the Canada Border Services Agency, possess the
requisite degree of institutional independence such that natural justice and
fundamental justice were respected?
[34] However, in Uzkar
v. Minister of Citizenship and Immigration, 2005 FC 1734, the same argument
was raised in a motion to stay attacking two decisions, an HC and a PRRA. My
colleague Rouleau J. rejected this argument and stated that the judges of this
Court have consistently held that decisions made by the same officer do not
create an appearance of bias:
[18] With respect
to the applicant’s claim regarding the lack of objectivity on the part of the
officer responsible for assessing the exemption on humanitarian grounds and
also responsible for the pre-removal risk assessment, the Court has ruled on
this subject on numerous occasions.
[19] The principle
stated in Monemi v. Canada (Minister of Citizenship and Immigration
[2004] F.C.J. No. 2004 was confirmed in Malekzai v. Canada (Minister of
Citizenship and Immigration) (2004), 256 F.T.R. 199, where O’Keefe J.
stated the following:
Furthermore, the respondent contends that immigration
officers can and do perform various statutory obligations under IRPA. This
Court, in Zolotareva v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 1596 (QL), 2003 FC 1274, held that enforcement officers have
the authority to make H & C determinations and in Haddad v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 579 (QL), 2003
FCT 405, that exercising one type of function does not disqualify an
immigration officer from exercising another function. These cases, according to
the respondent, undermine the applicant’s argument that strict barriers or
separation must be maintained between various statutory decision-makers and
that a failure to do so in the War Crimes Unit raises the spectre of
unfairness.
[35] In each of these
cases, Oshurova and Say, supra, this Court held that there
was no appearance of bias because the same officer had dealt with the HC
application and the PRRA application. It is true that the Court certified a
question in this regard in each of these cases, but that was because the cases
were dealing with special circumstances. In Oshurova, it appears from
reading the decision that the impugned PRRA decision had been made on September
28, 2004. The Court was concerned by the allegations of institutional bias
pertaining to the time when the PRRA program was governed by the Canada Border
Services Agency. The same observation applies to the decision of Gibson J. in Say,
where the impugned decision had been made on January 22, 2004.
[36] I agree with the
respondent, therefore, that Oshurova and Say addressed special
circumstances and are inapplicable to this case.
[37] In my opinion,
this Court has already clearly determined that there is no apprehension of bias
in the fact that the HC decision and the PRRA decision were made by the same
officer.
C. Failure to assess the alleged
apprehension in regard to the particular situation of the applicant
[38] The applicant
argues that her apprehension of persecution was reasonable owing to the
combined effect of the fact that she is a female victim of violence and abuse
by her husband, the lack of state protection in Guinea, the lack of family
support in Guinea and the fact that she refuses to have her daughter excised,
contrary to tradition and the orders of her husband. The applicant argues that
the PRRA officer failed to examine the cumulative impact of all these factors,
which put the applicant at risk in her country of citizenship.
[39] In my opinion,
the applicant’s allegations in this regard concerning the lack of state
protection and family support are general in nature; she does not refer to any
significant evidence in this regard. Moreover, the documents in the file show
that the principal applicant has several brothers and sisters who are still
living in Guinea.
[40] Concerning the
RPD’s guidelines, the applicant herself rightly emphasized that these
guidelines do not have force of law and were conceived for the particular
context of refugee claims and the hearing of such claims by the RPD. The
guidelines are issued by the chairperson of the RPD under section 159 of the
Act and apply only to the RPD. So the applicant cannot correctly argue that the
officer conducting the examination of the PRRA application should have applied
these RPD guidelines and so indicated in her reasons.
[41] Incidentally, a
reading of the RPD reasons indicates that the Division did in fact consider
these guidelines in the context of the applicant’s hearing on her refugee claim
before concluding that her account had no credibility whatsoever.
D. Personalized risk
[42] According to the
applicant, the officer erred in law in finding that the applicants had to prove
they were personally targeted irrespective of the reasonableness of their fear
based on the risks to members of a particular social group, namely women.
[43] However,
contrary to the applicant’s submissions, the documentary evidence on a country
is insufficient in itself to warrant an assessment of the risks of positive
return since the risk must be personal (Jarada v. Minister of Citizenship and Immigration,
2005 FC 409, Rizkallah v. Canada (M.E.I.), 156 N.R. 1 and Sedarat v.
Minister of Citizenship and Immigration, 2006 FC 805). According to Moussaoui
v. Minister of Citizenship and Immigration, 2004 FC 133, at paragraph 33:
. . . Section 97
provides that the applicant must be subject personally “. . . to a risk to
[his] life or to a risk of cruel and unusual treatment or punishment if . . .
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 . . . “.
[44] As the officer
noted in her reasons, although the practice of excision is common in Guinea,
this in itself is not sufficient to produce a favourable determination. The
applicant had to establish a connection between the present situation in her
country and her own and/or her daughter’s personal situation. The PRRA officer
was simply not satisfied that the applicant had established that connection and
was not persuaded that the child would personally be at risk in Guinea.
E. The best interest
of the minor child Fatoumata
[45] The applicant
argues that the Court’s intervention in this case is warranted because the PRRA
and HC decisions overlook the special situation of the young Fatoumata, who is
said to be at risk of being subjected to excision in Guinea. Furthermore, it is
argued, the officer did not give the necessary attention and sensitivity to
Fatoumata’s interest in remaining in Canada, a country in which she has become
integrated and where she is sheltered from excision (Ek v. Minister of
Citizenship and Immigration, 2003 FCTD 526).
[46] The applicant
argues that it is also in the best interest of the child Fatoumata not to
return to an unhealthy family environment in which her polygamous father would
sexually abuse and assault her mother as in the past.
[47] In my opinion,
it is clear from the PRRA decision that the officer considered the best
interest of Fatoumata. Indeed, the main reason alleged in support of the PRRA
application was precisely the risk of Fatoumata’s excision and the officer
analyzed this in a full and detailed way in light of all the factors and the
evidence as a whole that was submitted.
[48] It was clear
from the evidence submitted to the officer that the applicant, who is 29 years
old and lived in Guinea during her youth, did not suffer excision in her
country because her mother consistently objected to it. Moreover, the evidence
showed that the applicant, who had lived in Gabon with her husband and her
daughter since 1992, had made a number of trips to various countries without
her daughter accompanying her, notwithstanding the alleged fear of her husband.
[49] In the context
of the analysis of the PRRA application, the officer had to determine whether
the applicant had discharged her onus to establish that she and her daughter
personally incurred risks such as those contemplated in sections 96 and 97 of
the Act should they return to Guinea, and that is what she did.
[50] In my opinion,
the officer made no error and adequately considered the best interest of
Fatoumata.
F. Failure to
consider a new aspect of the fear of return
[51] The applicant
argues, lastly, that the letter from her sister, Kankou Kaba, added a new
element of risk, namely, her fear of persecution as a member of the Kaba family
and as a person charged by the authorities with financing the overthrow of the
president from outside the country. This aspect of the fear of return is
entirely new and was not cited at the IRB-RPD hearing, so the officer
completely ignored it.
[52] The applicant
cannot criticize the officer, of course, for failing to consider and analyze an
element of risk that she had not even alleged in her PRRA application. In this
regard, too, the officer did not err.
III. Conclusion
[53] For all of these
reasons, no reviewable error has been demonstrated and the application for
judicial review is dismissed.
Judge
Ottawa, Ontario
September 25, 2006
Certified true
translation
Brian McCordick,
Translator
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