Date:
20120815
Docket:
IMM-9647-11
Citation:
2012 FC 990
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, August 15, 2012
Present: The Honourable Madam Justice Gagné
BETWEEN:
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MARIE GISÈLE
BADOBREY
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application for judicial review of a decision of the Canada Border
Services Agency (the Agency) made under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) by Marie Gisèle
Badobrey (the applicant). The Agency rejected the applicant’s pre-removal risk
assessment (PRRA) application.
FACTS
[2]
The
applicant was born in Côte d’Ivoire in 1987 and arrived in Canada in 1997 with
diplomatic status, her father being an employee of the Embassy of Côte d’Ivoire
in Canada. She therefore completed her education in Canada.
[3]
On
June 30, 2008, the applicant was arrested for obstructing justice and
assaulting a peace officer. When a check was done with the Agency, it was
discovered that the applicant no longer had status in Canada, her diplomatic
status having ended on December 30, 2005, when her father’s term ended. On
July 3, 2008, the applicant was released on conditions.
[4]
On
July 22, 2008, she applied for refugee protection, and a departure order
was issued to her on that date. On September 28, 2010, her refugee
protection claim was rejected by the Refugee Protection Division of the
Immigration and Refugee Board (the Board), on the ground that she had an
internal flight alternative (IFA) in Gagnoa, where her grandmother lives, and
that she was not subject to any personalized risk. The applicant had stated
that she feared returning to Côte d’Ivoire because she had been sexually
assaulted by her half-brother before 1997 and from 2002 to 2005, and because of
the unsafe situation following the contested elections in Côte d’Ivoire in
2009. That decision was never appealed.
[5]
In
October 2010, the applicant ceased to comply with the conditions of her
release, and a warrant for her arrest was issued on December 17, 2010. She
was arrested on January 15, 2011, and was detained by the Agency. The
applicant was released on January 26, 2011. Her PRRA application was filed on
February 4, 2011, and her additional representations were received by the
Agency on February 18.
[6]
The
applicant’s PRRA application is based on her fear of being sexually abused by
her half-brother if she were to return to Côte d’Ivoire. She also claims that
her father might be targeted by the government, and adds that she has not lived
in Côte d’Ivoire since she was 14 years old, and thus does not know where
she could settle (her parents did not return to Côte d’Ivoire after her
father’s diplomatic term in Canada ended).
[7]
In
her memorandum, the applicant argued that she would be at risk if she were to
return to Côte d’Ivoire, as a single woman of [TRANSLATION]
“Canadian culture” who has lost her connection with her country of origin.
[8]
On
August 19, 2011, the Agency rejected her PRRA application, concluding that
the applicant would not be subject to a danger of torture or persecution or to
a risk of cruel and unusual treatment, or to a threat to her life if she were
to be sent back to Côte d’Ivoire. The applicant became aware of that decision only
on December 7, 2011, and filed this application for judicial review on
December 22, 2011.
DECISION UNDER
APPEAL
[9]
The
Agency analyzed the documentary evidence provided by the applicant, which
describes the violence surrounding the elections held in Côte d’Ivoire in 2009.
Those documents include recommendations by the Canadian government for
travelers wishing to go to Côte d’Ivoire and an article about the
demonstrations in response to the restrictions imposed by the government on cocoa
exports.
[10]
The
Agency considered each of the documents submitted by the applicant and
concluded that this evidence did not establish that the applicant was at risk
of persecution if she were to return to Côte d’Ivoire or that she was subject
to any personalized risk within the meaning of sections 96 and 97 of
the Act. The Agency concluded that the applicant would face the same risks as
the other citizens of Côte d’Ivoire in the present political context in that
country, and that she was facing only a possibility of risk: [TRANSLATION]
“the situation in the country presents no risk to a person whose profile is
similar to the [applicant’s], and there is little evidence that there is a risk
for persons who supported the former regime” (from translation of reasons of
the Agency, page 6).
[11]
In
addition, the allegations of sexual abuse are the same as were considered by
the Board in the applicant’s refugee protection claim. Since the applicant did
not offer new evidence in support of her allegations, she still has an IFA in
Gagnoa: the applicant failed to establish that she would be at risk of
persecution or that it would be unreasonable for her to relocate there.
[12]
The
burden of proof was on the applicant, and given that there was no new evidence
of persecution or risk within the meaning of sections 96 and 97 of the
Act, the Agency rejected the applicant’s PRRA application.
ISSUES
[13]
This
application for judicial review raises the following issues:
(1) Was
the Agency’s decision unreasonable, and in particular, did the Agency fail to
have regard to the applicant’s specific situation and the evidence in the
record?
(2) Did
the Agency violate the principles of natural justice, given that several months
elapsed between its decision and when the decision was communicated to the
applicant?
[14]
The
standard of review applicable to the first question is reasonableness (Hurtado
v Canada (Minister of Citizenship and Immigration), 2008 FC 634 at
paragraph 7, [2008] FCJ 807 (Hurtado); Pareja v Canada (Minister
of Citizenship and Immigration), 2008 FC 1333 at paragraph 12, [2008]
FCJ 1705 (Pareja)). This question addresses the assessment of the
evidence by the Agency, falls within its area of expertise and calls for a high
degree of deference from this Court (Hurtado, above, at paragraph 8;
Pareja, above, at paragraphs 12 and 19). In applying the
reasonableness standard, the Court must determine whether the decision and
conclusions of the Board are justified, transparent and intelligible, and fall
“within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47
(Dunsmuir)).
[15]
However,
the standard of review applicable to the second question, relating to the
principles of natural justice, is correctness (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339
at paragraph 43).
ANALYSIS
(1) Did
the Agency violate the principles of natural justice, given that several months
elapsed between its decision and when the decision was communicated to the
applicant?
Position
of the applicant
[16]
The
applicant contends that the Agency’s decision is unreasonable and asserts that
the Agency failed to have regard to the particular facts of her case. If she
were to return to Côte d’Ivoire, she says, she would be at risk of sexual
abuse. She is a single woman, of “Canadian culture”, and has lost all
connection with and attachment to Côte d’Ivoire. She adds that she could not
work in the field in which she studied in Canada if she were to return to Côte
d’Ivoire and would therefore have no means of subsistence. The Agency’s
conclusion regarding the absence of personalized risk is therefore incorrect.
[17]
She
added that the Agency’s decision is also unreasonable because it erred in
concluding that there is an internal flight alternative (IFA) for the applicant.
Position
of the respondent
[18]
The
Respondent submits that the burden of proof was on the applicant: she had to
establish that she was a refugee or a person in need of protection within the
meaning of the Act. The purpose of a PRRA application is to assess any new
evidence that was not available at the time of the hearing before the Board
(sections 112 and 113 of the Act). The applicant, however, relied on
the same facts as those in her refugee protection claim and did not submit any
new evidence concerning the alleged risks or concerning the existence of an
IFA. The applicant instead relied on documents about the general situation in Côte
d’Ivoire, without connecting it to her personal situation.
[19]
The
respondent added that the Agency had regard to the applicant’s personal
situation and concluded that she did not have a profile that put her
particularly at risk of persecution in Côte d’Ivoire. The Agency addressed the
sexual abuse committed against women in Côte d’Ivoire as reported in the
documentation, but was of the view that it described a generalized situation in
the country.
[20]
Regarding
the existence of an IFA, the respondent submitted that the applicant did not
offer any new evidence and this issue was disposed of by the Board. The purpose
of a PRRA application is not to review the decision of the Board. The applicant
failed to show why it would be unreasonable for her to settle in Gagnoa where
her grandmother lives.
[21]
The
applicant’s contention that she would be at risk because of her Canadian
culture and her absence from Côte d’Ivoire for 14 years is not supported
by the evidence in the record. The applicant’s subjective fear does not in
itself, in the respondent’s submission, justify intervention by this Court.
Analysis
[22]
Having
reviewed all of the evidence in the record and considered the arguments of both
parties, the Court concludes that the Agency’s decision rejecting the
applicant’s PRRA application is reasonable. The Agency had regard to the
particular facts of this case, in particular the applicant’s allegations of
risk and the documentary evidence she submitted to it. It was up to the
applicant to show, in light of new evidence or new facts, that she now
qualified as a refugee or a person in need of protection within the meaning of
the Act (Bayavuge v Canada (Minister of Citizenship and Immigration),
2007 FC 65 at paragraph. 43, [2007] FCJ 111; Pareja, above, at
paragraph 23), and she did not do so.
[23]
It
is settled that the purpose of a PRRA application is to consider the new
circumstances and changes that have occurred since the applicant’s refugee
protection claim was rejected: a PRRA application is not a reconsideration of
the decision of the Board (Raza v Canada (Minister of Citizenship and
Immigration), 2007 FCA 385 at paragraph 12, [2007] FCJ 1632 (Raza)).
Rather, as explained by Madam Justice Sharlow in Raza, above, at
paragraph 13: “a negative refugee determination by the [Board] must be
respected by the PRRA officer, unless there is new evidence of facts that might
have affected the outcome of the ROD hearing if the evidence had been presented
to the RPD.”
[24]
The
applicant’s PRRA application was largely based on the same facts as alleged in
her refugee protection claim, which was rejected by the Board in
September 2010. That decision has never been challenged. It was therefore
reasonable for the Agency to conclude there was no risk of persecution: there
was no evidence in the record that showed that the applicant would be subject
to a personalized risk if she were to return to Côte d’Ivoire. It was also
reasonable for the Agency to conclude that the applicant had an IFA in Gagnoa: that
conclusion by the Board was never challenged and the applicant did not offer
any evidence to show that the situation had changed in Gagnoa so that it had
become unreasonable or put her at risk for her to relocate there.
[25]
The
analysis of risk and of the existence of an IFA is within the jurisdiction and
expertise of the Agency (Pareja, above, at paragraph 19). Given
that it clearly considered all of the evidence in the record and referred to
the applicant’s particular circumstances, it is not for this Court to
intervene. Accordingly, the conclusions of the agency are justified,
transparent and intelligible, and fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir, above,
at paragraph 47).
(2) Did
the Agency violate the principles of natural justice, given that several months
elapsed between its decision and when the decision was communicated to the
applicant?
Position of the applicant
[26]
The
applicant contends that the Agency violated the principles of natural justice
because of the time that elapsed between its decision and when the decision was
communicated to the applicant. Although the decision is dated August 19,
2011, the applicant was only informed that her PRRA application had been
rejected in December 2011. She contends that the Agency’s decision did not
take into account facts that occurred between August and December 2011. The
applicant therefore did not receive a decision that took her situation at the
time into account.
Position of the
respondent
[27]
The
respondent submits that there was no violation of the principles of natural
justice on the part of the Agency. Although there was a delay between the
Agency’s decision and when it was communicated to the applicant, the applicant
has not shown how the situation in Côte d’Ivoire or her personal situations had
changed in the interim. The applicant has not alleged any actual prejudice
arising from the delay or offered any evidence to show that the time that
elapsed was unreasonable. She had the benefit of four additional months in
Canada and could have updated her PRRA application or made a new application if
she thought it necessary.
Analysis
[28]
To
establish a violation of the principles of natural justice, the applicant had
to show that the time gap was unreasonable and how it caused her actual
prejudice (Gelaw v Canada (Minister of Citizenship and Immigration),
2010 FC 1120 at paragraph 16, [2010] FCJ 1398; Qazi v Canada (Minister
of Citizenship and Immigration), 2005 FC 1667 at paragraph 16, [2005]
FCJ 2069 (Qazi)). The applicant, on the contrary, has not explained how
her situation or the situation in Côte d’Ivoire changed during that period. I
agree with the respondent that the applicant could have used that time to
update her application or make a new PRRA application if changes had occurred (see
Qazi, above at paragraph 15), which she did not do. Today, she is not
asserting any actual prejudice she may have suffered as a result of the delay,
and so this Court cannot conclude that she was denied the procedural fairness
to which she was entitled.
CONCLUSION
[29]
I
am therefore of the opinion that the applicant has not demonstrated reviewable
error by the Agency that would justify intervention by this Court, nor has she
identified any breaches of the principles of natural justice and procedure
fairness on the part of the Agency that otherwise tainted the legality of the
impugned decision. In addition, the decision of the Agency falls “within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, above, at paragraph 47). Intervention by
this Court is not warranted.
[30]
The
parties agree that this case does not raise any question for certification. The
Court is also of that view.
JUDGMENT
THE
COURT ORDERS THAT:
1.
the
application for judicial review is dismissed; and
2. the
case raises no question for certification.
“Jocelyne
Gagné”
Certified
true translation
Daniela
Guglietta, Reviser
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