Date: 20101104
Docket: IMM-4760-09
Citation: 2010 FC 1087
Ottawa, Ontario,
November 4, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
FILMON
FRANCO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
the decision of a pre-removal risk assessment officer (the PRRA officer or
officer), dated September 3, 2009, which determined that the applicant would
not be subject to risk of persecution, danger of torture, risk to life or risk
of cruel and unusual treatment or punishment if returned to Eritrea.
[2]
The
applicant, a citizen of Eritrea, is currently detained
at the Immigration Holding Centre. He filed a pre-removal risk assessment (PRRA)
application on July 28, 2009 on the basis of his status as a Pentecostal
Christian who fears persecution because of his religion in his home country. He
also believes that an anti-government opinion will be attributed to him because
he left the country and has been gone for a significant period of time.
[3]
The
applicant requests an order setting aside the officer’s decision and referring
the matter back to a different officer for redetermination.
Background
[4]
The
applicant originally left Eritrea in 2003 and went to the
Sudan for a short time and then to Sweden where he made a claim
for protection. The applicant came to Canada and made a claim for
protection at the port of entry on October 21, 2004. The Refugee Protection
Division of the Immigration and Refugee Board (the Board) rejected the
applicant’s claim for protection on July 31, 2006. The Board determined that based
on the evidence before it, the applicant was not a credible or trustworthy
witness. His claim for protection in Sweden contradicted his
testimony which also was in contrast to his Personal Information Form (PIF).
The Board concluded that the applicant lacked the political profile to be at
risk for any political belief. Further, the Board did not accept the fact that
the applicant was wanted for desertion based on his lengthy stays with family
members and his release from military service in 2001.
[5]
The
Board also considered his claimed fear of religious persecution but noted that
the applicant had not presented any evidence that he was active in his
religious beliefs. His PIF indicated that he was banned from religious
practices while in the army, however, the Board noted the lack of evidence to
demonstrate that the applicant was practicing his religion on his sojourn in Sweden or while in Canada. The Board’s
conclusion was that the applicant would face no risk as a result of his alleged
political profile or religion should he be returned to Eritrea.
[6]
In
support of his PRRA application, the applicant submitted an affidavit and
submissions from his counsel, a letter of support from his church pastor and a
large package of documentary evidence concerning persecution and human rights
abuses in Eritrea.
The Officer’s Decision
[7]
The
officer first considered which pieces of evidence submitted in support of the
application could be considered new. The officer found that evidence addressing
the issue of the applicant’s Pentecostal faith did not qualify as a new risk
development, materially different from the risks enumerated before the Board.
The officer noted the letter from his current pastor which corroborated his
faith but also noted that despite the Board’s findings on this issue, the
applicant had not supplied a baptismal certificate, a letter from a pastor in
Eritrea or Sweden, a letter from his mother or younger brother (who both share
the applicant’s faith and who both reside in Eritrea) or another parishioner in
Eritrea or Sweden. Nor was there any evidence demonstrating that his mother or
brother had suffered any ill-treatment in Eritrea based on
their religious beliefs.
[8]
The
officer accepted the pastor’s submissions on Pentecostal religious doctrine but
did not accept evidence of country conditions in Eritrea contained in
the letter. The officer preferred the various governmental and non-governmental
organizations which provide evidence of country conditions in Eritrea.
[9]
The
officer concluded that the new evidence and submissions did not overcome the
numerous credibility findings made by the Board. The officer also did not find
that the submissions had presented material evidence which would have changed
the decision of the Board.
[10]
The
officer considered country condition documentation and considered that Eritrea continues to
face challenges implementing constitutional guarantees and religious freedom
for their citizens. However, the officer did not find that country conditions
had changed significantly since the Board’s decision. Some of the documents
were found to have pre-dated the Board’s decision and were not considered.
Issues
[11]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the PRRA officer
err in applying the legal test set out in subsection 113(a) of the Act?
3. Did the PRRA officer
err in finding that the applicant would not face persecution as a returnee to Eritrea?
Applicant’s Written Submissions
[12]
The
applicant submits that the decision of the officer was unreasonable because the
officer applied the wrong test for determining what constitutes new evidence.
PRRA applicants are not limited to submitting evidence relating to new risks
and can submit evidence in relation to risks claimed at his or her Board
hearing. In particular, evidence which would contradict a finding of fact by
the Board may be considered new. Since the Board found as fact that the
evidence of the applicant’s Pentecostal faith was not credible, evidence
contradicting that finding should have been accepted.
[13]
Secondly,
the decision was unreasonable because the officer failed to engage in a
forward-looking analysis. The Board had held that there was little evidence
that he was a member of the Pentecostal faith and dismissed the ground of
religious persecution as it was not credible. Thus, in the PRRA application he
submitted several pieces of evidence demonstrating his observance of the
Pentecostal faith, both now and in the past. The officer seemed to accept this
evidence. The officer also accepted the documentary evidence indicating the
treatment of certain religious groups, including Pentecostals in Eritrea, but simply dismissed
the issue because there was insufficient evidence to demonstrate that the
country conditions had changed. This was not the basis of the Board’s refusal
of the applicant’s claim and the officer had a duty to consider whether the
applicant would risk persecution if returned to Eritrea.
Respondent’s Written Submissions
[14]
In
PRRAs, the onus is on the applicant to establish that there is a need for
protection and must identify new evidence in support of his or her allegations
that conforms to section 113 of the Act. The respondent submits that it was
reasonable for the officer to contend that the evidence submitted was not new.
The officer found that the information contained in the documentation was
presented or otherwise available at the time of the Board hearing and that the
submissions were in fact a recital of the story that was canvassed there. In
light of the statutory requirements, it was incumbent on the applicant or his
counsel to explain why the applicant could not have reasonably obtained the new
documents earlier.
[15]
The
officer did accept the applicant’s evidence of Pentecostal faith in Canada but noted
that despite the Board’s findings on the issue of religious persecution, the
applicant had failed to bring in any evidence of previous practice of the
religion. Similarly, the applicant failed to bring any new evidence
contradicting the Board’s finding that he lacked the political profile to be at
risk once returned to Eritrea.
[16]
The
officer reviewed all of the country condition documentation but correctly noted
that five of the documents pre-dated the Board decision and there was no
explanation as to why the documents should be considered new.
Analysis and Decision
[17]
Issue
1
What is the appropriate
standard of review?
I disagree with the parties
that the standard of review is reasonableness. The determination of risk on
return to a particular country is largely a fact-driven inquiry which is
reviewable on a reasonableness standard (see Kaybaki v. Canada (Minister of
Citizenship and Immigration) 2004 FC 32 at paragraph 15).
[18]
However,
the issue of whether a PRRA officer applied the correct legal test in
determining the PRRA application is an issue of law and should be reviewed on
the correctness standard. This was the first issue raised by the applicant.
[19]
In
Canada (Minister of
Citizenship and Immigration) v. Patel 2008 FC 747, [2009] 2
F.C.R. 196, this Court held that:
14 The question of whether the
officer applied the correct test is reviewable on the correctness standard….
[20]
Likewise,
in Wang v. Canada (Minister of
Citizenship and Immigration) 2010 FC 799, this Court held that:
12 It is unclear from the decision
whether the Officer articulated the proper legal test in respect of “new
evidence” under s. 113(1). The Officer appears to suggest that an applicant can
only raise a “new risk”.
13 If that was the Officer’s
conclusion, it would be an error of law. Section 113(a) is clear on its face
that in the circumstances of a rejected refugee claim, an applicant can only
present new evidence that arose after the rejection, or was not reasonably
available or could not reasonably be expected to be presented at the time of
the rejection.
[21]
Issue
2
Did the PRRA officer err in
applying the legal test set out in subsection 113(a) of the Act?
As was the case in Wang above,
the officer in this case appears to suggest that the applicant may only raise a
new risk in the PRRA application. The officer states that:
…I do not find that the applicant’s
Pentecostal Christian faith is a new risk development which is materially
different from the risks enumerated before the Board.
[22]
If
this was the test applied by the officer, it would be an error of law as subsection
113(a) states that an applicant may only present new evidence that arose since
the refugee claim rejection. The applicant was correct to submit new evidence
includes evidence which contradicts a finding of fact, including credibility
findings made by the Board (see Raza v. Canada (Minister of
Citizenship and Immigration) 2007 FCA 385).
[23]
It
is important, therefore, to understand the Board’s finding with regards to the
applicant’s religious beliefs. At the hearing of the Board, the applicant’s
fear of persecution was based on political opinion and as a person deserting
military service. However, the Board considered his Pentecostal faith but found
that the applicant had not provided the Board with any evidence that he is
active in his religious beliefs:
The panel is not persuaded that the
claimant would face persecution based on his religion if he returned to Eritrea. He has not provided the
panel with any evidence that he is active in his religious beliefs.
The Board continued:
While he did indicate in his PIF that he
was a member of a Pentecostal Church in Eritrea and he was banned from
religious practices while in the army, he did not provide the panel with any
other evidence that he has been practicing his religion since his army service,
either in Sweden or in Canada. Furthermore, the claimant did not include
religion as the basis of his claim. Lastly, the claimant has been so lacking in
credibility in other aspects of his claim that, given that he has not provided
the panel with any supporting documentation that he is in fact a Pentecostal,
the panel finds his evidence in this regard not to be credible as well.
[24]
In
other words, the Board would not accept the applicant’s claim to be a
Pentecostal Christian due to a lack of supporting evidence and due to the lack
of credibility which his entire claim suffered from. It appears that in his
PRRA application several years later, the applicant sought to address this.
[25]
Despite
the PRRA officer’s language in articulating the test, she did apply the correct
legal test in her analysis. The officer considered the letter from the
applicant’s Canadian pastor, but found that the letter was not able to overcome
the numerous credibility findings made by the Board. This was particularly the
case since three years is approximately the same length of time between the
applicant’s Board hearing and his PRRA application. The officer applied the
correct test and arrived at a reasonable decision that the letter, dated July
24, 2009, does not contradict the Board’s finding of fact.
[26]
Issue
3
Did the PRRA officer err in
finding that the applicant would not face persecution as a returnee to Eritrea?
The applicant submits that the
officer erred in failing to address the applicant’s submission that he would
face persecution as a returnee to Eritrea. The applicant submits
that the documentary evidence states that persons who have resided outside the
country are automatically assumed to be involved in anti-government activities
and as such, are automatically detained by the Eritrean authorities upon their
return to the country.
[27]
However,
the officer did consider the applicant’s submissions that he would face
persecution as a returnee. The officer found that she did not have sufficient
objective evidence before her to demonstrate that there is more than a mere
possibility that the applicant would be deemed to have an anti-government
political opinion.
[28]
This
was a reasonable conclusion given that the applicant’s situation is
distinguishable from the circumstances in the excerpts upon which he relied.
For example, the UK Border Agency, Country of Origin Information Report:
Eritrea , states that “asylum seekers who have fled Eritrea after being
detained or at risk of detention on account of their religion would be further
detained if returned forcibly to Eritrea.” There was no evidence that the
applicant had been detained or at risk of detention for his religious beliefs.
Likewise, the Amnesty International report relied on by the applicant states
that “Eritreans returning from abroad … risk arbitrary detention if they return
to Eritrea and are
suspected of opposing the government.” As noted by the officer, there was
insufficient evidence to establish that the applicant has engaged in
anti-government activities or would be deemed to have an anti-government
opinion upon his return to Eritrea. This was a reasonable
decision based on the evidence before the officer.
[29]
For
these reasons, the application for judicial review is dismissed.
[30]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[31]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
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72.(1) Judicial review by the Federal Court with respect to
any matter — a decision, determination or order made, a measure taken or a
question raised — under this Act is commenced by making an application for
leave to the Court.
112.(1) A person in Canada, other than a
person referred to in subsection 115(1), may, in accordance with the
regulations, apply to the Minister for protection if they are subject to a
removal order that is in force or are named in a certificate described in subsection
77(1).
(2) Despite
subsection (1), a person may not apply for protection if
(a) they are
the subject of an authority to proceed issued under section 15 of the
Extradition Act;
(b) they have
made a claim to refugee protection that has been determined under paragraph
101(1)(e) to be ineligible;
(c) in the
case of a person who has not left Canada since the application for protection
was rejected, the prescribed period has not expired; or
(d) in the
case of a person who has left Canada since the removal order came into force,
less than six months have passed since they left Canada after their claim to refugee protection was determined to
be ineligible, abandoned, withdrawn or rejected, or their application for
protection was rejected.
(3) Refugee
protection may not result from an application for protection if the person
(a) is
determined to be inadmissible on grounds of security, violating human or
international rights or organized criminality;
(b) is
determined to be inadmissible on grounds of serious criminality with respect
to a conviction in Canada punished by a term of imprisonment of at least two
years or with respect to a conviction outside Canada for an offence that, if
committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years;
(c) made a
claim to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention; or
(d) is named
in a certificate referred to in subsection 77(1).
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.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
112.(1)
La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1)
peut, conformément aux règlements, demander la protection au ministre si elle
est visée par une mesure de renvoi ayant pris effet ou nommée au certificat
visé au paragraphe 77(1).
(2)
Elle n’est pas admise à demander la protection dans les cas suivants :
a)
elle est visée par un arrêté introductif d’instance pris au titre de l’article
15 de la Loi sur l’extradition;
b)
sa demande d’asile a été jugée irrecevable au titre de l’alinéa 101(1)e);
c)
si elle n’a pas quitté le Canada après le rejet de sa demande de protection,
le délai prévu par règlement n’a pas expiré;
d)
dans le cas contraire, six mois ne se sont pas écoulés depuis son départ
consécutif soit au rejet de sa demande d’asile ou de protection, soit à un
prononcé d’irrecevabilité, de désistement ou de retrait de sa demande
d’asile.
(3)
L’asile ne peut être conféré au demandeur dans les cas suivants :
a)
il est interdit de territoire pour raison de sécurité ou pour atteinte aux
droits humains ou internationaux ou criminalité organisée;
b)
il est interdit de territoire pour grande criminalité pour déclaration de
culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour
toute déclaration de culpabilité à l’extérieur du Canada pour une infraction
qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c)
il a été débouté de sa demande d’asile au titre de la section F de l’article
premier de la Convention sur les réfugiés;
d)
il est nommé au certificat visé au paragraphe 77(1).
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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