Date: 20120606
Docket: IMM-7820-11
IMM-7821-11
Citation: 2012 FC 701
Ottawa, Ontario, June 6, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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MULUGETA TEBIKIE ESHETE
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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]
These
reasons address two applications for judicial review arising from decisions of
a Senior Immigration Officer which refused the applicant's request for an
exemption on humanitarian and compassionate (“H&C”) grounds from the
in-Canada selection criteria for permanent residence and found that he would
not be at risk of persecution or harm on return to his country of origin in a
pre-removal risk assessment (“PRRA”).
[2]
For
the reasons that follow, both applications are dismissed.
BACKGROUND:
[3]
The
applicant is 39 years old and a citizen of Ethiopia. He entered Canada in October
2004 on a visitor’s visa to compete in a marathon and claimed protection
shortly thereafter. His wife and son continue to live in Ethiopia.
[4]
The
applicant alleged in his claim that he was at risk of persecution in Ethiopia because he
was a member of the All Ethiopia United Party (AEUP) which was in opposition to
the government. In August 2005, the Refugee Protection Division of the
Immigration and Refugee Protection Board (the “RPD”) denied the claim on
credibility grounds. The RPD concluded that the applicant had not shown that he
had suffered serious harm in Ethiopia or would face a risk of
harm if returned.
[5]
An
application for leave and judicial review of the RPD decision was denied in
December 2005. An application for reconsideration of the RPD decision was
ultimately denied after being held in abeyance pending the release of decisions
from the Federal Court of Appeal relating to the hearing procedure followed by
the RPD.
[6]
In
December 2005, the applicant applied for an exemption from the in-Canada
selection criteria and for permanent residence under s.25(1) of the Immigration and Refugee
Protection Act, SC,
2001, c 27 (“the Act”). Over the six years this application was in process, the
applicant provided extensive submissions in support of his application. He drew
attention to his establishment in Canada and the alleged risk he faced as a returning
deportee to Ethiopia. He submitted that the
Ethiopian government would perceive him as an
opposition member because of his claim for protection from Canada against Ethiopia. The application was
denied on September 20, 2011.
[7]
The
applicant applied for a PRRA on October 19, 2010. In support of that
application, he drew attention to an increase in persecution of opposition
members by the Ethiopian government following the 2005 election in that country
asserting that this was a new risk which had not been before the RPD when it heard
his claim. He also said that the Ethiopian police were still actively seeking
him, pointing to e-mails from his wife who said that the police had come to her
home on several occasions, beat her and threatened to kill her if she did not
tell them where the applicant was. A negative risk assessment was issued on
September 14, 2011.
ISSUES:
[8]
The
following issues are raised in this case:
- Whether the
officer breached the applicant’s right to procedural fairness by not
calling him for an interview;
- Whether the
officer applied the wrong test for H&C relief;
- Whether the
officer’s treatment of the evidence before her was unreasonable;
- Whether the
officer failed to consider a ground of risk the applicant advanced to
support his PRRA.
ANALYSIS:
Standard of
Review
[9]
Where
an issue of procedural fairness arises, the Court must determine whether the
process followed by the decision-maker satisfied the level of fairness required
in all of the circumstances: Canada (Citizenship and Immigration) v Khosa, 2009 SCC12, [2009] 1
SCR 339 at para 43.
[10]
The
standard of review applicable to the question of whether an officer applied the
correct test for H&C relief is correctness: Herman v Canada (Minister of
Citizenship and Immigration), 2010 FC 629 at para 12. The standard
applicable to the officer’s analysis of the evidence is reasonableness: Baker
v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 62; Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at para 18. The officer’s alleged
failure to consider the applicant’s claim as it was advanced is also subject to
the reasonableness standard: Nabizadeh v Canada (Minister of Citizenship and
Immigration), 2012 FC 365 at para 24.
Was there a
breach of procedural fairness?
[11]
The
applicant submits that in both the PRRA and H&C decisions, the officer
relied on the assessment of the applicant’s credibility by the RPD. In neither
application did the officer give the applicant an opportunity to address
credibility concerns in an oral interview. The applicant contends that this was
a breach of procedural fairness.
[12]
As
discussed in Baker, above, at paragraphs 33 and 34, an oral hearing is
not required in an H&C application. The officer was required to provide the
applicant with an opportunity to make submissions, which she did. The H&C
decision was based, not on credibility, but on the lack of objective evidence
to demonstrate the hardship which the applicant alleged.
[13]
With
respect to the PRRA application, s.113(b) provides that a hearing may be held
if required on the basis of prescribed factors. The prescribed factors, set out
in section 167 of the Immigration and Refugee Protection Regulations,
SOR/2002-227, require that there be evidence that raises a serious
credibility issue in relation to the factors set out in sections 96 and 97 of
the Act, that this evidence be central to the decision and, if accepted, that
it would justify allowing the application for protection.
[14]
Here
the officer evaluated the new evidence presented by the applicant. She declined
to consider evidence which was available or could reasonably have been made
available before the RPD decision. This was consistent with the principles set
out by the Federal Court of Appeal in Raza v Canada (Minister of
Citizenship and Immigration), 2007 FCA 385 at para 13. The evidence
that did meet the standards of newness, relevance and materiality was
considered by the officer.
[15]
The
new evidence did not raise serious credibility issues as it was, for the most
part, documentary evidence relating to the conditions in Ethiopia. The only
evidence about which credibility could have been a factor were three e-mails
from the applicant’s wife indicating that the police continue to look for him.
The officer made no credibility finding with respect to this evidence,
determining rather to give it little weight due to its vagueness. That evidence
was not central to the decision and would not have justified allowing the PRRA
application.
[16]
In
my view, credibility was not a live issue in either application and
consequently there was no breach of procedural fairness.
Did the
officer apply the wrong test for humanitarian and compassionate relief?
[17]
The
same Senior Immigration Officer considered both applications. The applicant
submits that the officer, having first dealt with the PRRA application, merely
substituted “hardship” for “risk” when she came to consider the H&C
application. In other words, she applied the higher thresholds for risk under
sections 96 and 97 of the Act and did not adequately consider that a level of
risk which did not meet those standards could yet constitute unusual,
disproportionate and undeserved hardship warranting a H&C exemption.
[18]
In
my view, the decision clearly shows that the officer evaluated the H&C
application on the correct hardship test. Among other references to the correct
test interspersed in her reasons, at the outset she stated:
I am cognizant in this application that
while the harm he has cited may not rise to a level of s. 96 and/or s. 97 of
the [Act], it may contribute to a finding of unusual and undeserved or
disproportionate hardship
[19]
The
applicant had stressed risk in Ethiopia as a ground of hardship
in his H&C submissions. It was reasonable for the officer to analyze
whether the risk which would show hardship actually existed and her reasoning
on this point does not show that she applied the wrong test. The applicant had
raised essentially the same grounds of risk in both the H&C and the PRRA
applications and it is not unreasonable to find that the language used to
evaluate those risks will necessarily be similar. Aside from that similarity,
there is no evidence that the officer applied an incorrect test for the H&C
application.
Was the
officer’s treatment of the evidence before her unreasonable?
[20]
Under
paragraph 113(a) of the Act;
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;
[21]
The
question before the officer, then, was whether the applicant had demonstrated
he faced a forward-looking risk in Ethiopia on the basis of
evidence which was not before the RPD. The applicant asserted the same risks in
his PRRA Application as he had before the RPD. Although the applicant submitted
several country documents which showed opposition members are at an increased
risk in Ethiopia, he did not
provide any evidence beyond his bare assertion that he was an opposition
member, a claim which the RPD had disbelieved. This is what the officer was
referring to when she said that:
I note that the [applicant] is not named
in the documents and he has not indicated how they relate to a personalized, forward
looking risk for him in Ethiopia.
[22]
Given
the onus on the applicant to show, based on new evidence, that he faced a risk
because of his party membership, it was reasonable for the officer to look at
the documents to see if he was named in them as an opposition member. It was
also reasonable for the officer to find that, in the absence of evidence
showing the applicant was actually an opposition member, any risk established
by the country documents was a generalized one. The officer’s conclusion the applicant
had not established the risk asserted in the PRRA application was reasonable.
[23]
The
officer considered the letters from the psychiatrist. They indicate that the
applicant’s psychiatric condition did not begin until after the RPD decision.
It was not unreasonable to conclude that this stemmed from the failure of his
claim and not from the conditions he had experienced in Ethiopia before his
journey to Canada. The letters
indicate that medicine was prescribed to address the condition but do not
contain information regarding the availability of the medication in Ethiopia. The officer
reasonably gave a low probative value to this evidence with respect to the PRRA
application and the determination of hardship.
[24]
The
officer also reasonably dealt with the other aspects of the H&C decision.
It is not enough for the applicant to say that the officer could have concluded
that the evidence he submitted showed establishment in Canada that would
lead to hardship if he was removed. The officer reviewed all the relevant
evidence and came to a conclusion that was open to her. The Court may
intervene only if the decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law”: Khosa, above, at para 59. That was not
the case here.
Did the officer fail to consider a ground
of risk the applicant advanced to support his PRRA?
[25]
The
applicant also argues that the officer did not consider whether he faced a risk
simply because he was a returning failed refugee claimant. As the respondent
points out, the applicant did not raise this ground of risk in his submissions
on the PRRA application but rather in his H&C application. Although
considered by the same officer, these were separate applications. Had they been
processed separately by different officers, the applicant would not have the
benefit of the grounds he raised in his H&C application being before the
officer considering his PRRA.
[26]
To
hold it was a reviewable error for the officer not to consider grounds raised
in a separate application would be to grant greater protection to claimants
whose applications are processed together than those whose applications are
processed separately. A reviewable error should not arise simply out of
peculiarities in scheduling. In any event, the officer acknowledged the alleged
risk factor in his PRRA decision.
[27]
The
evidence offered in support of this ground relates primarily to the large
number of returnees expelled from the adjacent countries in Africa and to
renditions of persons from other more developed nations, presumably for
inadmissibility reasons. It does not establish that the applicant is similarly
situated to those persons and would face risk merely by reason of returning
following a failed refugee claim abroad. Similarly, the evidence does not
demonstrate that he would be at risk by reason of his profile as a returned
international calibre athlete. In the absence of evidence, this is no more than
an argument that the officer failed to speculate as to what might occur.
[28]
The
evidence does establish that the level of oppression towards opposition members
increased following the 2005 elections which returned a larger number of them
to the legislative assembly. But, as the RPD found, the applicant did not have
the profile of an opposition activist before he left Ethiopia and it did
not believe that he was a member of an opposition party. The officer did not
need to revisit those findings.
[29]
I
understand that the applicant has the support of many in the community who
believe that he has and could continue to make a valuable contribution to
Canadian society. He has for example helped to train and mentor youth in the
running sports. To make a living, he has set up a small business and employs
others. This is evidence of his determination to make a home in Canada. But the
question before me is not whether it is fair for Mr. Eshete to stay in Canada but whether
the officer’s decisions fall outside the acceptable range of outcomes
defensible on the facts and the law. I am unable to reach that conclusion.
[30]
No
serious questions of general importance were proposed and none will be
certified.
.
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JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. the
applications for judicial review in Court files IMM-7820-11 and IMM-7821-11 are
dismissed;
2. a copy of the
reasons for judgment and judgment will be placed on each file; and
3. in each file,
no questions are certified.
“Richard
G. Mosley”
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