Date: 20100106
Docket: IMM-1024-09
Citation: 2010 FC 14
Ottawa, Ontario,
January 6, 2010
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
Sandrine
Teclaire Simo Massudom
and
Ange Harold Talla
Sando
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a negative
decision regarding a pre-removal risk assessment (PRRA), issued under
sections 112 et seq. of the Immigration and Refugee Protection Act,
S.C. (2001), c. 27, (the Act), and a negative decision in regard to
humanitarian and compassionate considerations (H&C), issued under section
25 of the Act. Both decisions were signed by the same immigration
officer, Jeff Gullickson.
[2]
The
Refugee Protection Division (RPD) rejected the refugee protection claim of Ms.
Sandrine Teclaire Simo Massudom (the female applicant) on March 10, 2008, on
grounds of a serious lack of credibility. The claim was based on allegations of
conjugal violence and fear of her former spouse’s family. The application for
judicial review of that decision was dismissed on July 25, 2008. The female
applicant filed an H & C application on November 10, 2008, and a PRRA
application on December 4, 2008. Legal custody of Ange Harold Talla Sando, the
female applicant’s son, was granted to her last March 17. This child’s claim,
as co-applicant, is based entirely on the allegations of his mother, the female
applicant.
[3]
The
female applicant requested a stay of her removal order on March 30, 2009, but
this motion was dismissed by the Court on April 2, 2009. The female applicant
did not report for her removal on April 6, 2009. She and her son were arrested
at the end of July and placed in detention until August 3, 2009.
[4]
The
female applicant was born on November 15, 1978. She is a citizen of Cameroon and mother
of a son, Ange Harold Talla Sando, who was born on January 10, 2003. Before
coming to Canada, the female
applicant lived in Germany. Ouafeu Yves Talla Sando is Ange Harold’s
father and the female applicant’s former spouse. He did not accompany them when
they came to Canada. The
applicants have been in Canada since August 3, 2006.
[5]
Ms.
Simo Massudom allegedly fled Cameroon claiming fear of being
persecuted by her former spouse or by his family and friends. She further
claims that her medical condition requires monitoring in Canada.
* * * * * * *
*
[6]
The
two decisions that are the subject of this application for judicial review were
made based on the same claims made by the female applicant as well as the same
documents submitted in evidence. Both decisions were issued within a few days
of each other (on January 30, 2009, and on February 3, 2009). They are based on
the same findings of fact.
[7]
The
RPD found that the female applicant was not a credible witness and that she had
not provided credible evidence of the conjugal and domestic violence she
claimed to have suffered. The panel concluded that the female applicant had
‘‘fabricated this story’’ and did not attach any probative value to the
‘‘corroborating’’ documents. The PRRA officer did not conduct an interview
because the female applicant had not submitted any new evidence that might have
corroborated an important element in her testimony.
* * * * * * *
*
[8]
It
is settled law that when a PRRA decision is examined in its entirety, the
applicable standard of review is reasonableness (Figurado v. Canada (Solicitor
General),
[2005] 4 F.C.R. 387).
[9]
As
Justice Yves de Montigny wrote in Lai v. Canada (Minister of
Citizenship and Immigration), [2008] 2 F.C.R. 3, at paragraph 55:
‘‘Nevertheless, the standard must be adjusted in accordance with the particular
issue that is being considered.’’
[10] In the
judicial review of PRRA decisions, when it comes to questions of fact, it is
not within the jurisdiction of a reviewing court to reassess every piece of
evidence and thus substitute itself for the PRRA officer. Nonetheless, if it
has been demonstrated that the officer’s findings were made in a perverse or
capricious manner or without regard for the material before him or her, this
Court will intervene (paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. (1985), c. F-7). The applicable standard of review for questions of
mixed law and fact is reasonableness, and the applicable standard of review for
questions of law is correctness.
[11]
Furthermore,
it is well established that the purpose of a PRRA is not to serve as an appeal
of a decision of the RPD (Yousef v. The Minister of
Citizenship and Immigration, 2006 FC 864, at paragraphs 20 and 21). The
RPD’s decision must be considered to be definitive regarding the question of
protection under sections 96 and 97 of the Act. Justice Robert Barnes wrote as follows in Yousef, at paragraph 20:
. . . It is not the role of the PRRA officer
to re-examine evidence assessed by the Board, and it is not open to the officer
to revisit the Board’s factual and credibility conclusions. It is also not the
duty of the PRRA officer to consider evidence that could have been put to the
Board, but was not. The role of the PRRA officer, as defined by section 113
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA),
is to examine ‘‘only new evidence that arose after the rejection or was not
readily available, or that the applicant could not reasonably have been
expected in the circumstances to have presented’’.
[Emphasis
added.]
[12] The female
applicant argued first that, in this case, the fact that no hearing was held
was a breach of procedural fairness. Section 167 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations), lists the
factors to be taken into consideration in order to decide whether or not an
interview should be held. In order for the female applicant to have the right
to an interview in her PRRA application, she had to have submitted new
evidence. This new evidence must meet the three criteria set out in section
167.
[13] Moreover, the
case law recognizes that the officer may apply the same findings of fact to
both of the decisions that are the subject of applications for judicial review.
However, it is imperative that the officer’s findings be subject to the
criterion applicable to each decision.
[14] The
respondent alleges that the female applicant restated the same arguments before
the PRRA officer that she had presented to the RPD and that she had submitted
no new evidence. He cited the Federal Court of Appeal in Raza v. The
Minister of Citizenship and Immigration and The Minister of Public Safety and
Emergency Preparedness, 2007 FCA 385, where the Court concluded that a PRRA
application is not an appeal of a decision rejecting a claim for refugee
protection.
[15] Given the
importance which must be assigned to the question of credibility in this case,
the female applicant is arguing that the officer should have met with Ms. Simo
Massudom so that he could have personally ascertained that she was a victim of
conjugal violence. She is specifically criticizing the officer for having
disregarded two reports by independent professionals, one by a social worker
and another by a psychologist.
[16] The female
applicant asserts that she had a legitimate expectation of having an interview
and maintains that the officer breached her right to procedural fairness. She
is relying on the reasons of Justice Elizabeth Heneghan in Vu v. The
Minister of Citizenship and Immigration, 2006 FC 1339, which explain that
the doctrine of legitimate expectations is an aspect of procedural fairness.
[17] After
reviewing the circumstances in which a hearing must be held, I do not believe
that an interview was necessary in the case at bar. In fact, psychologist
Sylvie Laurion found that the female applicant had been the victim of physical
violence that caused chronic post-traumatic stress with symptoms of depression.
This document was submitted to the RPD, which found that the report did not
have probative value to establish that the post-traumatic stress had been
caused by the incidents of conjugal violence allegedly suffered by the female
applicant, or indeed if the incidents had even taken place.
[18] The female
applicant submitted a new report from the same psychologist that was written on
November 3, 2008. The PRRA officer found that since this evaluation was the
same as the one that had already been assessed by the RPD, it did not have any
probative value in the PRRA application. The female applicant also submitted a
psychosocial assessment from a CLSC in LaSalle, dated November 3, 2008. The
author of that report also surmised that the female applicant had been a victim
of conjugal violence. Under the circumstances, the PRRA officer did not
consider the document to be a probative piece of evidence supporting the
allegations of conjugal violence.
[19] In my view,
the last two reports, while not assessed by the RPD, were given reasonable
consideration by the PRRA officer. The Federal Court of Appeal held, in Raza,
above, that even if evidence postdates the RPD’s decision, it is not
necessarily new evidence according to the criteria under section 167.
[20] In fact, the
contents of these last reports merely reflect the contents of the first
psychological assessment which was before the RPD. There was nothing new with
respect to the allegations of conjugal violence. The PRRA officer could
therefore reasonably conclude that these reports had no probative value in this
application since the RPD had already found that the female applicant had not
proven that she had been a victim of conjugal violence.
[21] The female
applicant then claimed that the officer should have assessed the violence or
discrimination she would be subjected to once she was back in Cameroon. The
respondent replied that the female applicant had submitted no probative
evidence showing that she would be subjected to violence or discrimination if
she were to return to Cameroon.
[22] In Jarada
v. The Minister of Citizenship and Immigration, 2005 FC 409, at paragraph
28, Justice Yves de Montigny wrote:
. . . the assessment of the applicant’s
potential risk of being persecuted if he were sent back to his country must be
individualized. The fact that the documentary evidence shows that the human
rights situation in a country is problematic does not necessarily mean there is
a risk to a given individual . . .
[Emphasis
added.]
[23] Relevant
extracts from general documentation on the situation regarding violence against
women in Cameroon do not show
a personalized risk to the female applicant, and the officer carefully
considered this lack of evidence of a personalized risk.
[24] Finally, the
female applicant maintained that the officer had failed take into account the
risk of reprisals by the father’s family in his assessment of the best
interests of the child. The female applicant alleges that she could be
separated from her son in Cameroon, because her former
spouse could kidnap him.
[25] Yet the
officer found no probative evidence that the former spouse or even his family
in Cameroon would
persecute the applicants in that country. Furthermore, the child’s father is a
permanent resident in Canada who has never shown any real interest in
his son in this country. It has not been demonstrated that he has left or would
leave Canada to go to Cameroon and demand custody of
his son. Even if he were to leave Canada, the documentary
evidence shows that the female applicant would be able to bring any such matter
before a court of first instance in Cameroon.
[26] In both the
PRRA and H & C decisions, the officer carefully considered the best
interests of the child. While the psychosocial assessment indicated that the
child would have a better life in Canada, its considerations are too vague to
conclude that the child’s integration is such that he would experience undue
hardship if he were to return to Cameroon. The female applicant’s
claim that the PRRA officer failed to provide any reasons showing that the best
interests of the child, of whom she had been granted custody by the Quebec
Superior Court on March 17, 2009, had been considered in the PRRA decision is
therefore without merit. It seems rather that the officer did not treat the
matter of the child’s custody in Cameroon with indifference.
* * * * * * *
*
[27] For all these
reasons, the Court’s intervention is not warranted and the application for
judicial review is dismissed.
JUDGMENT
The
application for judicial review of a negative decision regarding a pre-removal
risk assessment and a negative decision in regard to humanitarian and
compassionate considerations, dated January 30, 2009, and February 3, 2009,
respectively, is dismissed.
‘‘Yvon
Pinard’’
Certified true translation
Sebastian Desbarats, Translator
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