Date: 20090128
Docket: IMM-3171-08
Citation: 2009 FC 93
Ottawa, Ontario, January 28,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NEIMAT
ZOMRAWI HAMED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is an application for judicial review of a negative pre-removal risk assessment
(PRRA) determination in respect of a citizen of Sudan.
II. BACKGROUND
[2]
The
Applicant, a 68-year old citizen of Sudan, alleged fear of persecution
based upon her husband’s alleged membership in the Sudanese Farmers’ Union. She
had claimed before the Refugee Protection Division (RPD) that her husband had
been arrested and disappeared, that she had also been arrested, and that her
children had been forced into hiding.
[3]
The
RPD dismissed the application for refugee status on the basis of credibility.
In particular, the RPD had difficulty with the absence of evidence of the
husband’s membership in the Sudanese Farmers’ Union, as well as
other aspects of the Applicant’s story. Leave to appeal the RPD’s decision was
denied.
[4]
The
Applicant then applied for a PRRA, which is the subject matter of this judicial
review. In support of her PRRA application, the Applicant submitted five pieces
of evidence:
1. A
letter from an NGO (the High Committee for Development and Promotion of Karma
Albald) attesting to the membership of the Applicant’s husband in the Farmers’
Union;
2. A
letter from the same NGO attesting to the Applicant’s son being subjected to
detention and surveillance in order to secure information about his mother;
3. Summonses
to surrender for both the Applicant and her son from the Political Security
Division of the National Security Board;
4. A
letter from the Applicant’s aunt stating that the police had been looking for the
Applicant; and
5. A
medical certificate from the Sudanese Federal Ministry of Health attesting to
the fact that the Applicant had chest bruises and high blood sugar and that she
had been treated at the hospital for six days.
[5]
In
the PRRA decision the Officer concluded that there was insufficient evidence to
come to a conclusion which was different from that of the RPD. The Officer
found that, notwithstanding the difficulties in Sudan, there was
insufficient evidence to establish the level of risk necessary for a successful
PRRA. The Officer’s comments with respect to the five pieces of evidence are
discussed further in these Reasons.
III. ANALYSIS
A. Standard
of Review
[6]
The
standard of review for a PRRA decision has been established as reasonableness
(see Woldegabriel v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1223). I see no reason to depart
from that conclusion on the standard of review. Some deference is owed to the
Officer’s credibility findings and ability to assess evidence in this area;
however, because the evidence at issue is largely documentary, the Court must
be satisfied that the Officer’s decision can stand up to a probing inquiry.
[7]
The
Applicant’s case turns principally on an argument about the weight given to
documents submitted. As an overarching consideration, it is not this Court’s
function to re-weigh the evidence and substitute its decision for that of the
Officer’s (see Canada (Minister of Citizenship and
Immigration) v. Qureshi, 2007 FC 1049 at paragraph 8). In this case, the
Officer’s reasons for giving little or no weight to certain documents is clear,
transparent, and consistent with the responsibilities of an officer to make
such a decision. Therefore, the Court finds that the Officer’s decision was
reasonable in the circumstances.
B. NGO
Letters
[8]
The
PRRA Officer gave minimal weight to the two letters from the NGO. The letters
did not provide information, details, or a claim of personal knowledge to
substantiate the facts stated. As such, the Officer was suspicious of the authority
of that NGO to make such statements.
[9]
The
Court can find nothing unreasonable in the Officer’s concerns about the letters
from the NGO. The Officer’s comments must be taken in light of the RPD decision
that the Applicant’s evidence had been found to be contradictory and not
credible. The Applicant’s failure to reliably demonstrate that her husband was
indeed politically involved – given that her claim of risk was largely based
upon the alleged political involvement of her husband – also colours the
reasonableness of the conclusions with respect to the summonses and the aunt’s
letter.
C. Summonses/Aunt’s
Letter
[10]
It
was the Applicant’s position that the summonses and the aunt’s letter (which is
supposedly corroborative of the summonses) is evidence of persecution by reason
of showing that the Sudanese officials are seeking out the Applicant. The
Applicant contends that the summonses are tantamount to an arrest warrant. The
submission is that the Officer was obliged to engage in an analysis of risk on
the basis of arrest and on the basis of the political circumstances surrounding
the Applicant’s family.
[11]
The
difficulty with this submission is that the Officer did that very analysis of
the summonses and reached a conclusion, a reasonable one in the circumstances,
that the summonses were too vague to constitute an arrest warrant. Since the
Applicant had failed to make out the political aspect of her claim, it was
reasonable for the Officer to conclude that the summonses themselves were not
evidence of persecution. Moreover, the Applicant, in her counsel’s submissions
to the PRRA Officer, did not make out a nexus between the summonses and the
likelihood of persecution.
[12]
The
same can be said about the aunt’s letter stating that the police were looking
for the Applicant. Furthermore, despite having counsel to aid her, the
Applicant did not point to any specific evidence which established a nexus
between the summonses, the alleged police inquiries, and persecution in the various
country reports filed.
D. Medical
Evidence
[13]
The
Applicant had submitted a medical report which addressed the presence of high
blood sugar and bruises at the time she was treated. The Officer gave no weight
to the medical evidence because it failed to link the injuries to abusive
treatment by the police. In addition, the report referred to medical treatment
in May 2007 rather than 2005. It is acknowledged by all parties that
the error was in the translation, not in the original document. The Applicant submits
that, in the face of such a glaring error, there was a positive obligation on
the Officer to confront the Applicant - even after the hearing - for an
explanation. The Applicant says that the failure to do so is a denial of
natural justice.
[14]
The
Applicant’s submission ignores the fact that the Applicant had counsel and it
was the responsibility of the Applicant through counsel to bring the error and
an explanation to the Officer’s attention. It is difficult to attribute
responsibility to the Officer for relying on a document sworn to be a
translation of the original.
[15]
Further,
the real reason for discounting the medical evidence was the absence of a nexus
between the injuries described and police action. While it would be hearsay for
the doctor to opine that the cause of the injuries was police brutality (unless
he were a witness), there is not even the suggestion in the report that the
injuries were the result of physical assaults or trauma. In the absence of even
hearsay from the doctor, there is no evidence to ground a conclusion that the
injuries were consistent with the Applicant’s allegations. As such, there is no
evidence of any nexus, and the Officer’s decision in this regard was
reasonable.
IV. CONCLUSION
[16]
The
Court concludes that the Officer’s decision was reasonable in light of the
evidence before the Officer. Therefore, this application for judicial review
must be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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