Date: 20091204
Docket: IMM-5584-08
Citation: 2009 FC 1242
Ottawa, Ontario, December 4, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
LAMINE
YANSANE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary
comments
[1]
The
Federal Court of Appeal has indicated that, when conducting a pre-removal risk
assessment (PRRA), the officer must assess any new evidence with regard to the
facts on which a refugee claim is based to see if this new evidence changes the
situation as it was previously assessed:
[12] A PRRA application
by a failed refugee claimant is not an appeal or reconsideration of the
decision of the RPD to reject a claim for refugee protection. Nevertheless, it
may require consideration of some or all of the same factual and legal issues
as a claim for refugee protection. In such cases there is an obvious risk of
wasteful and potentially abusive relitigation. The IRPA mitigates that risk by
limiting the evidence that may be presented to the PRRA officer. The limitation
is found in paragraph 113(a) of the IRPA, which reads as follows:
|
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;
…
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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;
[…] .
|
(Raza
v. Canada (Minister of Citizenship and
Immigration), 2007 FCA
385, 162 A.C.W.S. (3d) 1013).
[2]
The
narrative is the key and the very source of understanding the nature of the
human condition in a decision. No compromise is ever to be made in pursuit of
accuracy of key facts in the evidence ….
(Garcia
v. Canada (Minister of Citizenship and
Immigration), 2009 FC
1241).
II. Introduction
[3]
This is a
case distinguishable on its facts, which are very specific and unique to it.
[4]
This is an
application for judicial review of a decision by a PRRA officer, dated November
21, 2008, refusing the applicant’s second PRRA application. The PRRA officer
found that the applicant did not face any risk pursuant to section 96 or 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
III. Facts
[5]
The
applicant, Lamine Yansane, a citizen of Guinea, is a young Muslim of Susu ethnicity.
Mr. Yansane is 35 years old, married and the father of three children aged 5, 8
and 11. His wife and three children, as well as his parents and siblings, still
live in Guinea.
[6]
Mr.
Yansane purportedly completed 15 years of schooling in Guinea and obtained a
mechanic’s certificate in 1993, and apparently worked as a self-employed
mechanic from 1994 to 2005 in the capital, Conakry.
[7]
Mr.
Yansane indicated that his father is a very devout Muslim, is an Imam at the
Kasapo mosque and is apparently quite well known in his community.
[8]
Mr.
Yansane apparently had problems with his family because he had married a
Catholic woman with whom he had three children. He had promised his father that
he would do everything he could to convert his wife to Islam. His father stood
surety for his son’s garage in the hope that his son would eventually fulfill
his promise. His father apparently did not attend the civil wedding, which was
held in 1994. His father purportedly pressured him to leave his wife in order
to marry a Muslim cousin, which he apparently refused to do. He apparently then
left to live in Conakry with his wife and children in
2004.
[9]
Later, he
purportedly began to accompany his wife to church and decided to convert to
Christianity, which apparently did not please his family. On September 15,
2005, his father and uncle purportedly visited him and questioned him about
rumours that he had been attending church and he apparently admitted that he
wanted to convert. According to one element of
evidence, which was not contradicted, his brother branded him and his father
beat him and warned him that he would suffer the consequences.
[10]
He
apparently went to the home of his wife’s older brother in the commune of
Matoto, in Conakry. On September 25, 2005, his
wife purportedly warned him that his father and 5 members of the Muslim
community had apparently come looking for him at his home and had threatened
him. His brother-in-law purportedly explained to him that he should leave the
country in order to come to Canada and seek protection. His
family went to live with his wife’s grandmother for their safety.
[11]
He left
his country on October 15, 2005, and, after a stop-over in France, arrived in Canada on October 16, 2005, using a
false French passport, which was destroyed upon his arrival at the airport. He showed
Citizenship and Immigration Canada (CIC) an identity card and a birth
certificate.
[12]
Since he
left, his wife and children have purportedly gone to live with an aunt in a
small, isolated village (not named) due to threats from Mr. Yansane’s father.
IV. Issue
[13]
Is the
PRRA officer’s decision reasonable?
V. Analysis
[14]
The
officer wrote that she assigned little weight to the letters of support
submitted by Mr. Yansane because they serve Mr. Yansane’s interests and are not
objective. Letters that clearly describe the risk Mr. Yansane faces in Guinea
and which come from people who are familiar with Mr. Yansane’s situation should
be taken into consideration, with great care, but, nonetheless, reasonably.
[15]
The
officer used the same reasoning when disregarding the report by the lawyer from
Conakry, stating that it is a [translation]‘‘self-interested
report’’ since it was ordered by Mr. Yansane’s counsel.
[16]
In January
2009, Mr. Yansane was granted a stay by Justice J. François Lemieux. In his
decision, he quoted at length from Raza, above, on the subject of
examining new evidence:
[17] Justice
Sharlow elaborated on her reasoning in the following paragraphs of her reasons:
[13] As I read paragraph 113(a), it is
based on the premise that a negative refugee determination by the RPD must be
respected by the PRRA officer, unless there is new evidence of facts that might
have affected the outcome of the RPD hearing if the evidence had been presented
to the RPD. Paragraph 113(a) asks a number of questions, some
expressly and some by necessary implication, about the proposed new evidence. I
summarize those questions as follows:
1. Credibility: Is the evidence
credible, considering its source and the circumstances in which it came into
existence? If not, the evidence need not be considered.
2. Relevance: Is the evidence
relevant to the PRRA application, in the sense that it is capable of proving
or disproving a fact that is relevant to the claim for protection? If
not, the evidence need not be considered.
3. Newness: Is the evidence new
in the sense that it is capable of:
(a)
proving the current state of
affairs in the country of removal or an event that occurred or a circumstance
that arose after the hearing in the RPD, or
(b)
proving a fact that was unknown to the
refugee claimant at the time of the RPD hearing, or
(c)
contradicting a finding of fact
by the RPD (including a credibility finding)?
If not, the evidence need not be considered. [Emphasis
added.]
4. Materiality: Is the evidence
material, in the sense that the refugee claim probably would have succeeded if
the evidence had been made available to the RPD? If not, the evidence need not
be considered.
5. Express statutory conditions:
(a) If the evidence is capable of proving only an
event that occurred or circumstances that arose prior to the RPD hearing, then
has the applicant established either that the evidence was not reasonably
available to him or her for presentation at the RPD hearing, or that he or she
could not reasonably have been expected in the circumstances to have presented
the evidence at the RPD hearing? If not, the evidence need not be considered.
(b) If the evidence is capable of proving an event
that occurred or circumstances that arose after the RPD hearing, then the
evidence must be considered (unless it is rejected because it is not credible,
not relevant, not new or not material). [Emphasis added.]
[14] The first four questions, relating to credibility,
relevance, newness and materiality, are necessarily implied from the purpose
of paragraph 113(a) within the statutory scheme of the IRPA
relating to refugee claims and pre removal risk assessments. The remaining
questions are asked expressly by paragraph 113(a).
[15] I do not suggest that the questions listed above must be asked in any
particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer
must consider all evidence that is presented, unless it is excluded on one of
the grounds stated in paragraph [13] above. [Emphasis added.]
[18] At paragraph 17 of her reasons, Justice Sharlow
stated the opinion that new evidence in support of a PRRA application cannot be
rejected solely because it relates to the same risk, and added:
[17] However, a PRRA officer may properly reject such
evidence if it cannot prove that the relevant facts as of the date of the
PRRA application are materially different from the facts as found by the RPD. [Emphasis
added.]
(Yansane v. Canada (Minister of Citizenship and
Immigration),
2009 FC 75, [2009] F.C.J. No. 78 (QL)).
[17]
In his
decision to grant a stay, Justice Lemieux decided that there were serious
questions of law since the officer had not assessed all of the new evidence.
According to the judge’s instructions in Raza, above, the PRRA officer
had no reason to disregard or assign little weight to the new evidence.
[18]
The two
complaints filed by Mr. Yansane at the police station show that there was
little likelihood that any steps would be taken on his behalf. The following
passage illustrates this:
e. Denial of Fair Public Trial
Although the constitution and law provide for the
judiciary's independence, judicial authorities routinely deferred to executive
authorities in politically sensitive cases. In routine cases, there were
reports that authorities accepted bribes in exchange for a specific outcome.
Magistrates were civil servants with no assurance of tenure. Because of
corruption and nepotism in the judiciary, relatives of influential members of
the government often were, in effect, above the law. Judges often did not act
independently, and their verdicts were subject to outside interference. The
judicial system was plagued by numerous problems, including a shortage of
qualified lawyers and magistrates and an outdated and restrictive penal code.
In September, to spearhead a national effort to improve the administration of
justice, the Ministry of Justice held a national seminar on detention and a
training conference for bailiffs (see section 1.d.).
…
Many citizens wary of judicial corruption preferred to rely
on traditional systems of justice at the village or urban neighborhood level. Litigants presented their civil cases before a
village chief, a neighborhood leader, or a council of "wise men." The
dividing line between the formal and informal justice systems was vague, and
authorities sometimes referred a case from the formal to the traditional system
to ensure compliance by all parties. Similarly, if a case was not resolved to
the satisfaction of all parties in the traditional system, it could be referred
to the formal system for adjudication. The traditional system discriminated
against women in that evidence given by women carried less weight (see section
5).
…
Civil Judicial Procedures and Remedies
Under the law, there is a judicial procedure for civil
matters. In practice, the judiciary was neither independent nor impartial, and decisions
were often influenced by bribes and based on political and social status.
There were no lawsuits seeking damages for human rights violations. In
practice, domestic court orders were not enforced. [Emphasis added.]
(U.S.
Department of State report on human rights; Guinea, 2006).
[19]
Mr.
Yansane was baptized in April 2007. No significant consideration was given to
this baptism regarding the risks referred to by Mr. Yansane.
[20]
The
personal risk was not assessed in a reasonable way. In the applicant’s case,
changing his religion, apostasy, is punishable by death. Mr. Yansane’s father,
according to uncontradicted evidence, had threatened his own son with punishment
by death when he issued a Fatwa that was proclaimed publicly during official
prayers. It appears Mr. Yansane’s father had decided to apply the precepts of
his tradition. For the PRRA officer, it is not a question of whether or not
this is commonly practised in his country of origin. The risk to life comes
from Mr Yansane’s father, as a public person (the Court refers to
uncontradicted evidence from the Archdiocese of Conakry, in a letter dated May
14, 2008).
[21]
The risk
of persecution is linked principally to the change of religion. The fact that
he married a woman of another faith helps explain Mr. Yansane’s religious
choice and further adds to the risk of persecution. The religious conversion
was confirmed by the baptism in Montréal. Mr. Yansane is threatened with death
by his father. This element of risk was not considered in the PRRA officer’s
decision (the Court refers to uncontradicted evidence from the Archdiocese of
Montréal, in a letter dated February 27, 2008).
VII. Conclusion
The officer decided that Mr. Yansane had not shown that he
would personally be at risk if he returned to Guinea. The risk facing Mr. Yansane is not one
that faces all Christians, it is a personal risk, specific to Mr.
Yansane since he is the son of a well-known figure, his father, who is calling
for his death by having publicly issued a Fatwa during official prayers. For
all of these reasons, a reassessment should be done by a different officer.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be allowed; that the
PRRA officer’s decision be set aside and that the matter be referred back for
reassessment by a different officer.
“Michel M.J. Shore”
Certified
true translation
Sebastian
Desbarats, Translator
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