Date: 20101215
Docket: IMM-1331-10
2010 FC 1290
Ottawa, Ontario, December 15, 2010
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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FAROUK MATANO
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
In the
present matter, the Court must address the applicant’s application for judicial
review of the Pre-Removal Risk Assessment Officer’s decision to maintain the
Removal order enforceable against the applicant. This decision was rendered on
January 28, 2010 by V. Spence, Pre-Removal Risk Assessment (“PRRA”) Officer. The
removal order was stayed by Order of Justice Campbell on June 3, 2010, pending determination
of the present judicial review. At issue is the applicant’s contention that the
PRRA Officer erred by not granting him an oral hearing. The applicant seeks to
have this decision quashed and the matter sent to another PRRA Officer for
determination.
[2]
The applicant,
Farouk Matano, fled from his native Kenya
and arrived in Canada on July 18, 1989. He
subsequently filed a claim for refugee protection, as he feared persecution
based on his religious beliefs and political activities in Kenya. This claim was heard by the Convention
Refugee Determination Division (“CRDD”) on October 22, 1991. The Applicant’s
refugee claim was refused on February 24, 1992, on the basis that he was not a
Convention refugee. The CRDD ruled that the applicant was not credible in his
assertion that he supported Mwakenya, a political movement in Kenya. The CRDD found that he demonstrated a
lack of knowledge in Mwakenya and that his credibility was such that he could
not be believed in his claim of fearing persecution. Other facts, such as the
ease with which he obtained a Kenyan passport and the fact that an expert
witness provided evidence conflicting with the applicant’s submissions further
convinced the CRDD that his refugee claim was not based on a well-founded fear
of persecution. His application for leave with the Federal Court for his
refugee claim was denied.
[3]
The
applicant then proceeded to file two ultimately unsuccessful permanent
residence claims in 1997 and 2001. While he was accepted on principle for
permanent residence on humanitarian grounds, a condition sentence for fraud
over $5,000.00 derailed his claim. He has stayed in Canada on temporary
resident permits and work permits with his wife, a landed Canadian citizen, and
three Canadian born children until December 2009, when he was given a PRRA
application in order for him to be removed to his native Kenya.
The PRRA Officer’s Decision
[4]
The PRRA
Officer rejected the application on the basis that the applicant would not be
subject to risk of persecution, danger of torture, risk to life or risk of
cruel and unusual treatment or punishment if returned to Kenya. The PRRA Officer’s decision highlights
the past proceedings in the applicant’s case and considered evidence adduced with
his PRRA application.
[5]
The
adduced evidence is at the heart of the present Reasons for Judgment and Judgment.
It is important to report this evidence as the PRRA Officer analyzed it. The
applicant’s affidavit and claims were analyzed, insomuch as they diverged from
what is related in the 1991 CRDD decision in his case:
a. The CRDD decision relates that
the Applicant fled Kenya with the help of his uncle.
In his PRRA application, the applicant states that his father was the one who
helped him.
b. The CRDD decision is to the
effect that the applicant was detained for three days in 1987 by the police in
relation to his activities with Ansarr Muslim Youth, a community organisation.
In his PRRA application, the applicant claims to have been detained and beaten
in 1989 for a period of one month.
c. The applicant submitted photos
of marks on his leg, allegedly the result of beatings received while detained.
The PRRA Officer assigned no weight to this evidence.
d. The PRRA Officer did not find
that the applicant’s documents relating that he was still wanted by the Kenyan
authorities to be believable.
[6]
The PRRA
Officer also considered the documentary evidence submitted by the applicant in
regards to the state of human rights in Kenya, the treatment of Muslims and reports
relating to political violence in Kenya.
The PRRA Officer decided that, while not ideal, the conditions in Kenya are
such that the Officer was not convinced that “the applicant would face a
systemic and sustained denial of his fundamental human rights if he is required
to return to Kenya”. The applicant did not
demonstrate a mere possibility of persecution and that he would be in danger of
torture and the like.
Position of the Parties
[7]
The
applicant contends that the PRRA Officer’s decision failed to observe a
principle of natural justice and procedural fairness. This principle is such
that the applicant should have been allowed an oral hearing. It is his
contention that the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (“IRPA”) and the Immigration and Refugee Protection Rules,
SOR/2002-227 (“the Rules”) are such that an oral hearing should have been
granted, as credibility was a core element of the PRRA Officer’s decision. The
applicant contends that credibility was central, even if the PRRA Officer did
not state openly that credibility was at issue.
[8]
The
Minister contends that a valid and enforceable removal order is in effect and
that the applicant has no right to stay in Canada. Further, the Minister submits that the
PRRA Officer did not rule on credibility, but on the basis of the totality of
the evidence submitted. It is argued that the applicant is attempting a revaluation
of the evidence presented to the CRDD. However, this is not something case law has
recognized as being the role of the PRRA Officer. Generally, the Minister
claims that the PRRA Officer’s decision was reasonable.
The applicable law and standard of review
[9]
The core
issue here is the following: did the PRRA Officer err in not giving the
Applicant an oral hearing? It is important to cite the relevant passages of the
IRPA and of the Rules as they were when the PRRA Officer made his decision.
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Immigration
and Refugee Protection Act, S.C. 2001, c. 27, s. 112
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Loi
sur l’Immigration et la protection des réfugiés, L.C.
2001,
ch. 27, art. 112
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113.
Consideration of an application for protection shall be as follows:
(a)
an applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
(b)
a hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
(c)
in the case of an applicant not described in subsection 112(3), consideration
shall be on the basis of sections 96 to 98;
(d)
in the case of an applicant described in subsection 112(3), consideration
shall be on the basis of the factors set out in section 97 and
(i)
in the case of an applicant for protection who is inadmissible on grounds of
serious criminality, whether they are a danger to the public in Canada, or
(ii)
in the case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of Canada.
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113.
Il est disposé de la demande comme il suit :
a) le
demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part :
(i)
soit du fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii)
soit, dans le cas de tout autre demandeur, du fait que la demande devrait être
rejetée en raison de la nature et de la gravité de ses actes passés ou du
danger qu’il constitue pour la sécurité du Canada.
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Immigration
and Refugee Protection Rules, SOR/2002-227, s. 167
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Règlement
sur l’ immigration et la protection des réfugiés, DORS/2002-227, art. 167
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167. For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
(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.
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167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent
à décider si la tenue d’une audience est requise :
a)
l’existence d’éléments de preuve relatifs aux éléments mentionnés aux
articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui
concerne la crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative à
la demande de protection;
c) la
question de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
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[10]
The applicable
standard of review when evaluating the PRRA Officer’s decision to allow an oral
hearing based on the facts in a case is that of reasonableness, as it is a core
element of the Officer’s competence and legislative mandate. It is related to
the exercise of the Officer’s discretion and should be awarded deference (Matute
Andrade c. Canada (Citoyenneté et Immigration), 2010 CF 1074; Lopez Puerta v. Canada (Citizenship and Immigration), 2010 FC 464). In light of the language
of subsection 113(b), the availability of the oral hearing is a matter of the
Officer’s discretion, not a matter of right (Perez Arias v. Canada
(Citizenship and Immigration), 2009 FC 1207; Begashaw v. Canada (Citizenship and Immigration), 2009 FC 1167). As such, the Court may
not substitute its own judgment to that of the PRRA Officer. So long as the
decision falls within the realm of reasonable and justifiable outcomes, the
Court may not intervene (Dunsmuir c. Nouveau-Brunswick, 2008 CSC 9).
[11]
However, the fairness
of the procedure must be reviewed on the standard of correctness (Latifi v. Canada (Citizenship and Immigration), 2006 FC 1388, at para. 31; Hurtado
Prieto v. Canada (Citizenship and Immigration), 2010 FC 253, at para. 24; Ventura v. Canada
(Citizenship and Immigration),
2010 FC 871, at para. 15).
[12]
Further, as noted by
s.167 of the Rules, the PRRA Officer must consider three relevant criteria
while assessing if a hearing is required: (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. These criteria have been interpreted by this Court as requiring 1)
a question of the applicant’s credibility and 2) that this credibility finding
is determinative to the case (Matute Andrade c. Canada (Citoyenneté et
Immigration), 2010 CF 1074). The criteria set out by s. 167 of the Rules
are seen to be cumulative (Tran v. Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 175; Ventura
v. Canada (Citizenship and Immigration), 2010 FC 871).
The PRRA Officer’s decision in regards to holding a hearing
[13]
The PRRA Officer
generally stated that the factors of s. 167 of the Rules were assessed, and
that a hearing was not found to be necessary. It is however important to
highlight that the reviewing Court must address the nature of the decision and
its reasoning, rather than analyze at face value solely the language used. In
other words, credibility findings may be disguised in language and the Court
must go beyond the sole language used by the PRRA Officer (Hurtado Prieto c.
Canada (Citoyenneté et Immigration), 2010 CF 253; Ferguson v. Canada
(Citizenship and Immigration),
2008 FC 1067). The reviewing Court must not re-weigh the evidence before the
PRRA Officer, it must address if this evidence was evaluated reasonably, as per
the principles of judicial review.
[14]
Granting a hearing in
PRRA proceedings is the exception, not the rule, as can be seen from the PRRA
Officer’s manual. Furthermore, this manual states in all clarity at section
14.2 the following:
Where
the applicant has had a claim for refugee protection that was considered by the
IRB and the IRB has made a determination on the credibility of the applicant,
the officer will not, in normal circumstances, need to conduct a separate
hearing with respect to credibility. However, a hearing may be contemplated
where the IRB has either determined that the applicant was credible, or did not
make any conclusion on the credibility of the applicant, but the officer is
confronted with evidence that leads the officer to believe the applicant is not
credible; equally, the officer may require an oral hearing if new evidence
would appear to contradict the IRB’s finding that the applicant was not
credible.
[15]
In the case at bar, one
must analyze what was adduced as evidence before the PRRA Officer. There was
documentary evidence, as well as an affidavit from the applicant. Pictures of
the applicant’s scars on his leg were submitted, under the pretense that these
were caused by the applicant’s mistreatment in Kenya.
The evidence that was presented was linked to the reasons of the applicant’s
departure from Kenya as well as the current country conditions in Kenya and how they relate to the applicant. However, the PRRA
Officer’s mandate is not to reevaluate a refugee claim, but to assess new
evidence that was not reasonably available at the time of the refugee hearing (Kaybaki
v. Canada (Minister of Citizenship and Immigration), 2004 FC 32 ; Rodriguez
Quiroga v. Canada (Minister of Citizenship and Immigration), 2006 FC 1306).
A new version of the underlying facts of the refugee claim cannot reasonably be
considered “new evidence” for the purpose of the PRRA Officer’s findings. The
pictures of the applicant’s leg were analyzed, but given no weight by the PRRA
Officer, as no objective evidence was adduced to support the applicant’s claims
that it resulted from his alleged detention and mistreatment in Kenya. Furthermore, no objective evidence attesting that the
applicant was still sought by the authorities. The PRRA Officer considered the
evidence and gave it no weight. It was reasonable for the PRRA Officer to do
so.
[16]
In any event, even if
the Court was to consider the Officer’s findings in regards to the applicant’s
version of the events as credibility findings, these would not be considered
central and determinative to the application for protection, in keeping with s.
167 of the Rules’ language and cumulative conditions. The applicant’s
allegations that credibility findings were couched in plausibility findings
does not hold true when the PRRA Officer’s decision is analyzed. The evidence
relates the underlying facts to his failed refugee claim. The PRRA Officer must
assess the present risks relating to sections 96 and 97 of IPRA: who helped the
applicant escape, how long he was detained and if his scar results from
detention are matters that were or should have been dealt with by the CRDD. The
Applicant had the burden to present to the CRDD all relevant facts to justify
his claim for refugee protection.
[17]
As stated above, the
PRRA Officer’s mandate is to evaluate new evidence in regards to the risks the
applicant would face if he was to be deported to Kenya. The
Officer’s reasons clearly show that he evaluated this evidence. He considered
that the applicant’s statements regarding the fact that he was still actively
sought by the authorities in Kenya and found they lacked specificity and
were not supported by evidence. The Officer decided that the applicant did not
present any objective evidence to rebut the CRDD’s findings.
[18]
More importantly, the
Officer assessed the current country conditions in Kenya. In this respect, he concluded that while not ideal, that
the conditions were not such that the applicant, as a Muslim, would face more
than a mere possibility of persecution. The Officer’s conclusions are drawn from
several reports and the documentary evidence and cannot be considered arbitrary.
The Officer concluded that the applicant did not demonstrate more than a mere
possibility that he will be at risk of persecution, and he has not
demonstrated, on a balance of probabilities, that he would be in danger of
torture, or at risk of cruel and unusual treatment or punishment or at risk to
life should he return to Kenya.
[19]
As
noted above, the procedural fairness of the procedure is to be reviewed on the
standard of correctness. In analyzing the decision and the evidence before the
PRRA Officer, no finding of a breach of procedural fairness can be made. The
decision in this respect is correct.
[20]
The PRRA
Officer’s decision is reasonable and falls within the justifiable outcomes
within the applicable facts and law. It was in the PRRA Officer’s discretion to
conduct an oral hearing, should the conditions by s. 167 of the Rules be found.
The PRRA Officer did not have to conduct an oral hearing: the adduced evidence
cannot be considered as “new evidence” and the decision did not depend on
credibility findings. In any event, the evidence does not fall within the scope
of s. 167 of the Rules and the extraordinary nature of oral hearings at the
PRRA stage. The PRRA Officer’s decision carefully considered the documentary
evidence in regards to the country conditions and fear of persecution. This
Court cannot find any reviewable error in the PRRA Officer’s decision.
[21]
No
question of general importance for certification was proposed by the Parties.
JUDGMENT
THIS COURT’S JUDGMENT is:
- this application for
judicial review is dismissed and no question is certified.
“Simon
Noël”
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