Date: 20120606
Docket: IMM-5938-11
Citation: 2012 FC 697
Ottawa, Ontario, June 6,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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ALAIN MUTSHAMBA KABEYA
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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
[1]
The
Applicant, Alain Mutshamba Kabeya, seeks judicial review of a negative decision
by a Pre-Removal Risk Assessment Officer (the PRRA Officer), dated June 29,
2011. The PRRA Officer found that there was no more than a mere possibility
that the Applicant would be at risk of persecution in the Democratic Republic
of the Congo (DRC) and no serious reasons to believe that he would be in danger
of torture, a threat to his life or cruel and unusual treatment or punishment
as
required by sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
I. Background
[2]
A
citizen of the DRC, the Applicant arrived in Canada on September
5, 2000 and made a refugee claim on October 30, 2000. His claim was based on
his father’s involvement with the opposition party, L’Union pour la Démocractie
et le Progrès Social (UDPS) as well as his escape from forced recruitment for
the Congolese army. However, the Refugee Protection Division of the
Immigration and Refugee Board (the Board) rejected his claim on the basis of
credibility concerns on August 22, 2002.
[3]
As
a result of criminal convictions (including assault and breach of conditions)
while in Canada, the
temporary suspension of removals in place for the DRC no longer applies to him.
[4]
The
Applicant brought the application for this PRRA on July 27, 2007.
II. PRRA
Officer’s Decision
[5]
In
declining the application, the PRRA Officer noted that the Applicant was
alleging the same fears as presented to the Board at his initial refugee
hearing. The documents submitted relating to violence and the political
situation in the DRC did not address the Applicant’s specific situation and did
not allow the PRRA Officer to refute the Board’s findings regarding the credibility
of his allegations.
[6]
The
PRRA Officer concluded that “[a]lthough the applicant may face criminal acts in
DRC, this reality applies to the entire population; it is not probative in the
case of the applicant.” Moreover, the Applicant had not demonstrated his
membership in those groups reported to be discriminated against in the country,
nor did he “demonstrate that the situation for him is any more difficult than for
the majority of Congolese.”
[7]
Acknowledging
the temporary suspension of removals by the Government of Canada, the PRRA
Officer referred to the Applicant’s criminal convictions and inadmissibility. It
also stated “this does not give rise to an inference that there are
personalized hardships for the entire Congolese population.”
[8]
Finally,
the Applicant had not submitted any “personal and probative evidence” to
support his allegations that his Canadian wife and son would be in danger in
the DRC because of what occurred prior to his departure. The PRRA Officer was
of the opinion that the same findings made against the Applicant would apply to
his wife and son in the DRC.
III. Issues
[9]
The
Applicant raises the following issues:
(a) Did the PRRA Officer err in
suggesting that the Applicant was alleging the same fears as presented to the
Board?
(b) Did
the PRRA Officer err by misstating evidence related to the Applicant’s
background that, in light of country documentation, was a key element of the
decision?
(c) Did the PRRA Officer fail to
apply the relevant test under section 96 of the IRPA?
IV. Standard
of Review
[10]
In
general, the standard of review applicable to the assessment of a PRRA Officer
is reasonableness (see for example Hnatusko v Canada (Minister of
Citizenship and Immigration), 2010 FC 18, 2010 CarswellNat 21 at paras
25-26). Certain questions of law that arise may, however, warrant the
correctness standard (see for example Franco v Canada (Minister of
Citizenship and Immigration), 2010 FC 1087, 2010 FC 1360 at paras
17-20).
V. Analysis
[11]
The
Applicant contests the PRRA Officer’s suggestion that he was alleging the same
fears as in his refugee claim before the Board. He insists that this is
unreasonable because he raised fresh allegations regarding the ethnic dimension
of the risk he would face in the DRC.
[12]
The
Respondent maintains that the Applicant failed to establish a link between his
allegations and information contained in the documentary evidence presented to
the PRRA Officer. None of the documents related directly to his situation. As
regards the specific allegations of the ethnic dimension of the conflict, the
Respondent insists that it was reasonable to conclude that this information has
already been considered because, for the purposes of a PRRA under subsection 113(a)
of the IPRA, applicants can only present new evidence that arose after the
rejection of their refugee claim or that was not reasonably available or could
not reasonably have been expected to be presented in the circumstances.
[13]
While
the Applicant could have been clearer in identifying the supposedly fresh
allegations as to the ethnic dimension of the risk posed to him in the DRC, the
additional written submissions before the PRRA Officer did refer to some
ethnic-based issue based on the region where he was from and his membership in
the Luba tribe.
[14]
The
Respondent raises a valid consideration from the point of the view of the PRRA
Officer that this aspect of the risk might have been reasonably available at
the time of the hearing and should not necessarily be considered as part of the
PRRA. There is, however, no indication from the PRRA Officer that this was the
case. The Respondent is supplementing the existing reasons. It may be
open for the PRRA Officer to conclude that these allegations could reasonably
have been raised at the refugee hearing and indicate that the purpose of the
PRRA is not to have a second determination on the refugee claim (Kaybaki v
Canada (Solicitor General of Canada), 2004 FC 32, [2004] FCJ no 27). It
should nonetheless provide some indication that this is the case.
[15]
As
the decision stands, it is unclear whether the PRRA Officer truly considered or
had reasons for disregarding such allegations as not being supported by the
documents submitted. There are various questions that may arise regarding
factors such as the credibility, relevance, newness and materiality of evidence
submitted in support of a PRRA. According to Justice Karen Sharlow in Raza
v Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007]
FCJ no 1632 at paras 13-15, “[w]hat is important is that the PRRA officer must
consider all evidence that is presented, unless it is excluded on one of the
grounds stated.”
[16]
The
Applicant further submits that the PRRA Officer erred in noting that he was
from Kinshasa as opposed
to Lubumbashi in the
eastern region. In many cases, such misstatements would not prove central to
the determination or constitute a reviewable error. Given the nature of the
PRRA Officer’s determination in this instance, however, it is a matter of some
concern.
[17]
The
determination was based primarily on the PRRA Officer’s insistence that the
“applicant has failed to establish the presence of a personal risk to himself
in the event that he is returned to DRC.” Of particular relevance is the
passage where the PRRA Officer makes the misstatement:
Although the applicant may potentially
face criminal acts in DRC, this reality applies to the entire population; it is
not probative in the case of the applicant. Moreover, the applicant is alleging
that he comes from Kinshasa, and according to Freedom
House, “aside from the east, most parts of the country were relatively stable
in 2009.”
[18]
The
Applicant’s evidence is nonetheless consistent that he comes from the Lubumbashi in the
eastern region. It is also clear from the documentary evidence that particular
issues have arisen in the eastern part of the country. The PRRA Officer should
have at least considered whether the instability in the eastern region had any
direct implications on the Applicant’s situation. In light of the above
misstatement, it is unclear whether proper consideration took place in this
regard.
VI. Conclusion
[19]
For
these reasons, the application for judicial review is allowed. The matter is
remitted back to the newly constituted panel of the Board for reconsideration.
JUDGMENT
THIS COURT’S
JUDGMENT is that this judicial review is allowed
and the matter is remitted back to a newly constituted panel of the Board for
reconsideration.
“ D.
G. Near ”
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