Date: 20100804
Docket: IMM-6111-09
Citation: 2010 FC 800
Ottawa, Ontario, August 4,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
WUDASIE
AMANYOS ZEMO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review concerns a negative PRRA decision where claim of a new risk was
asserted and where a negative credibility finding was made without a hearing
provided for in section 167 of the Immigration and Refugee Protection Regulations.
II. BACKGROUND
[2]
The
Applicant is a 56 year old woman from Eritrea who had not lived in
that country for 25 years. She had lived in the Sudan, Saudi
Arabia and the United States. She came to Canada on December
8, 2003 and made a refugee claim at the Port of Entry.
[3]
The
Refugee Protection Division (RPD) rejected her claim in 2006 concluding that
her risk due to membership in the Eritrean Liberation Front (ELF) was not
credible. Leave for judicial review was dismissed.
[4]
Her
PRRA was rejected in 2007 and the Applicant was deported to the United
States.
She returned in April 2008 and since she could not make another refugee claim,
she filed a new PRRA. That PRRA was denied but upon application for judicial review,
the Respondent conceded that not all the information on this case had been
reviewed by the PRRA office.
[5]
A
new PRRA application was filed. This judicial review relates to that PRRA. The
PRRA application was based on the ELF risk, and her religious affiliation with
a church opposed to the current government – both these grounds had previously
been rejected.
The Applicant
raised a third and new ground of risk – that of a returning asylum seeker. The
claim was supported with documentary evidence of the fate of returning asylum
seekers - detention and torture.
[6]
The
PRRA decision acknowledges the new risk raised which the Applicant asserted
could not have been raised previously. The Officer states that she would
consider all the evidence in light of the new risk.
[7]
The
Officer concluded that in respect of ELF membership, the RPD’s credibility
finding and the first PRRA finding cannot be displaced on the basis of the
existing record. That part of the PRRA decision is not challenged.
[8]
On
the issue of religious belief, the Officer challenges the Applicant’s claim
that she was a member of the Renewal Orthodox Church in Eritrea, that the
Orthodox Church (a registered church which she attended in Toronto) is
affiliated with the unregistered Renewal Orthodox Church and thus her
membership would put her at risk upon return.
[9]
The
Officer did acknowledge the documentary evidence from reliable sources that
members of unregistered churches faced the risk of human rights abuses
including imprisonment. However, the Officer held that the Applicant had not
submitted sufficient documentary evidence to show that she was a member of a
group which faced risk of abuse.
[10]
In
addressing the new risk, the Officer made the following finding:
…[T]he Applicant has provided
insufficient objective evidence to support that she has the profile that is of
interest to the authorities upon return. I also note the evidence that
indicates situations where persons seeking to avoid mandatory conscription are
detained upon their return. The applicant has not indicated (nor does the
objective evidence support) that at the age of 56 and having been out of the
country prior to the independence of Eritrea, that
the applicant faces military service.
III. ANALYSIS
[11]
The
general rule in respect of PRRA decisions is that they are subject to the
standard of review of reasonableness (Aleziri v. Canada (Minister of
Citizenship and Immigration), 2009 FC 38). However, the Applicant
argues that she was entitled to an oral hearing because there was an adverse
credibility finding, and that there was a breach of procedural fairness, issues
assessed on a standard of correctness.
A. Re:
Religious Persecution
[12]
The
decision on this issue is deficient in a number of areas. The first of which is
the failure to address whether the evidence of membership and risk is new. The
Officer failed to consider the criterion established in Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, which in these
circumstances she was obliged to do.
[13]
Despite
not addressing the “newness of evidence” issue, the Officer appears to have
considered it as new and was therefore obliged to consider it reasonably and in
a procedurally fair manner.
[14]
The
new evidence before was that members of unregistered churches were at risk; a
matter not considered by the RPD. Pursuant to s. 113 of the Immigration and
Refugee Protection Act, that new evidence raised the issue of whether a
hearing should be held.
|
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.
|
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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[15]
In
Regulation 167 (being the prescribed factors described in s. 113(b)),
the Minister is required to consider whether to hold a hearing where
there is evidence “that raises a serious issue of the applicant’s credibility”.
|
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.
|
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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[16]
There
is no end of debate surrounding the application of s. 167 of the Regulations
and whether a decision deals with sufficiency of evidence versus believability.
The term “credibility” itself is loosely used to mean weight, plausibility and/or
believability. It is, in the final analysis, the Court’s task to sort out what
is the real basis of the decision whenever the term credibility is used and
whether the decision turns on credibility or sufficiency.
[17]
In
the present circumstances and reading the decision as a whole, the Officer’s
decision could only stand if the Applicant’s evidence of membership was not
believed. There was more than sufficient evidence as to the risk to members of unregistered
churches and there was sufficient evidence, if believed, to establish the
Applicant’s membership in that type of church.
[18]
Therefore,
the Officer, having decided the issue on credibility, failed to consider
whether a hearing should be held. The Applicant is not entitled per se
to a hearing but the Minister is required to consider whether to have a
hearing. In that respect there was an error of law because the Officer never
turned her mind to that issue.
Alternatively,
if this decision was based on lack of sufficiency, it was unreasonable given
the evidence, both objective and subjective.
[19]
The
issues in this case are similar to the decision in Tekie v. Canada (Minister of
Citizenship and Immigration), 2005 FC 27:
16 In my
view, section 167 becomes operative where credibility is an issue which could
result in a negative PRRA decision. The intent of the provision is to allow an
Applicant to face any credibility concern which may be put in issue.
17 The
record in this case shows that the Officer had credibility concerns. Although
the case was decided principally on the basis of "objective fear", if
the Applicant's contentions had been accepted, a positive PRRA would have
resulted. The fact that, in the end, the PRRA decision is based on other than
credibility does not lessen the right to an oral hearing.
B. Re:
Returning Asylum Seekers
[20]
In
addressing this issue, the reasons are plainly deficient. The risk of returning
asylum seekers was not raised before the RPD. Indeed the evidence of the
existence of that risk suggests that while instances of detention and abuse may
have occurred before the RPD hearing, those incidents did not become known
broadly until after the RPD decision.
[21]
The
failure to address the Raza test underscores the problem of determining
the “newness” of the evidence.
[22]
I
adopt Justice Mosley’s conclusion in Wa Kabongo v. Canada (Minister of
Citizenship and Immigration), 2008 FC 348 at paragraph 13 where he
held:
The applicant asserts that he is precluded from raising his
alternative claim in a PRRA as he did not raise it before the Panel. I
disagree. PRRA officers may assess risks to claimants on return to their
countries of origin where the claimed grounds have not previously been raised: Zenunaj
v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1715, [2005] F.C.J. No. 2133. Indeed, as the PRRA officer in that
situation would be the first decision maker to assess the newly claimed risk,
he or she would be required to review all relevant evidence, not merely that
which fits the parameters set out in paragraph 113(a) of the IRPA: Cupid
v. Canada (Minister of Citizenship and Immigration), 2007 FC 176, [2007]
F.C.J. No. 244.
Justice Mosley’s comments were more than
mere obiter or judicial musings as argued by the Respondent.
[23]
Aside
from failing to consider Raza, above, and seeming to act inconsistently
with Wa Kabongo, above, the PRRA decision is unreasonable in finding the
Applicant not likely to be of interest to the government because she did not
“fit the profile” in that she would not face military service.
[24]
The
issue of military service is not determinative of the new risk. The risk is to
returning asylum seekers per se not because of their avoidance of
military service. The injection of military service raises an irrelevant matter
which was determinative of the Applicant’s case. To do so in this instance was
unreasonable and engaged the Officer in an irrelevant consideration.
IV. CONCLUSION
[25]
For
these reasons, the application for judicial review will be granted, the PRRA
decision quashed and the matter returned to the Respondent for a new
determination by a different official. Given the result, there is no question
for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted, the PRRA decision is quashed and
the matter is to be returned to the Respondent for a new determination by a
different official.
“Michael
L. Phelan”
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