Date: 20090123
Docket: IMM-5584-08
Citation: 2009 FC 75
BETWEEN:
LAMINE YANSANE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR
ORDER
LEMIEUX J.
[1]
These are
the reasons for the stay of the removal of Lamine Yansane, aged 35, a citizen
of Guinea, scheduled for
January 9, 2009, that I granted on January 8, 2009. His application
for a stay was filed with an application for leave and judicial review of the
decision of a pre-removal risk assessment officer (PRRA officer) dated November 21,
2008, refusing his second PRRA application, which was made on November 12,
2008.
Overview
[2]
The
applicant arrived in Canada on October 16, 2005
with a false French passport and claimed refugee protection. He is afraid of
his father, an Imam at a mosque in Boké, Guinea, and his Muslim family, because of his
marriage to a Catholic woman (who is still in Guinea with their three children) and his
intention to convert, which he has now done: he was baptised in Montréal on April 7,
2007.
[3]
On
August 15, 2006,
the Refugee Protection Division (RPD) found him not to be credible. His
application for leave and judicial review was dismissed by me on January 9,
2007. The RPD based its finding that he was not credible on a number of
factors, including:
·
His vague
and imprecise answers as to when he had decided to convert to Catholicism in Guinea;
·
Inconsistencies
or implausibilities: (1) the fact that during his [TRANSLATION] “courtship” of
his fiancée he was not reported; (2) the fact that his family apparently agreed
to him marrying his fiancée in a civil ceremony in 1994 with the applicant’s
promise that he would convert her to Islam within two years; and (3) the fact
that the applicant and his family were able to live in the same concession as
his father in Boké for 10 years (from September 1994, the date of the
marriage, to 2004, the date when the applicant and his family went to live in Conakry)
without his wife converting to Islam;
·
The failure
to declare in his personal information form (PIF) the fact that two complaints
against his father had been filed with the police.
[4]
His first
PRRA application was refused on November 26, 2007, and an application
for leave and judicial review of that decision was dismissed by a judge of this
Court on June 20, 2008.
[5]
Also on November 26,
2007, an immigration officer, who was also the PRRA officer in the case
before us, refused his application for permanent residence on humanitarian and
compassionate grounds. The application for an exemption was based on his
integration into Canadian society and the same risks as he had identified in
his PRRA application.
[6]
His
removal to Guinea was scheduled for March 4, 2008, pursuant to the
negative decisions referred to above; he applied for a stay, together with an
application for leave regarding the refusal of his application for permanent
residence on humanitarian and compassionate grounds (exemption decision); that
application was dismissed, but his removal was postponed because a travel
document had not yet been issued by the Guinean authorities.
[7]
In the
interim, on July 18, 2008, a judge of this Court gave leave to seek
judicial review of the exemption decision. On November 4, 2008, my
colleague Mr. Justice Lagacé dismissed that application.
[8]
On October 29,
2008, the Embassy of Guinea issued him a travel document valid for six
months. As noted, the applicant made his second PRRA application on November 12,
2008, and it was refused on November 21, 2008 by the same officer
who had refused his first PRRA application.
Impugned Decision
[9]
The
decision made by the PRRA officer (the officer), like all PRRA decisions, in
fact, is composed of two parts: yes or no answers to the questions on the
decision form, and the decision-maker’s explanation of why the answer is yes or
no. Under the heading “New Evidence (Section 113(a) of the IRPA)”, the officer
checked “yes” to the questions “New evidence that arose after the rejection”
and “Evidence that was not reasonably available”, and “no” to the question of
whether, if it was available, the applicant could not reasonably have been
expected in the circumstances to have presented it at the time of the
rejection. She answered “yes” to the question “Is there new evidence?”
[10]
She said
that she had [TRANSLATION] “regard to the documents and evidence submitted
after the PRRA decision on November 26, 2007, the other evidence having
been considered and a negative decision made”. She described certain new
evidence, including:
[TRANSLATION] In support of his
application, the applicant produced several letters of support: from
the Archdiocese of Conakry, from Sacré-Cœur parish in Boké,
from the Archdiocese of Montréal, from the Mission communautaire de
Montréal, from his brother, a report from the law office of Maurice
Lamey Kamano, a lawyer in Guinea, to the Court, and also an article from
the National Post in Canada dated June 4, 2008, concerning the applicant.
The documents are dated 2008, except for the letter from his brother, which his
dated July 2007. [Emphasis added.]
[11]
The
officer assessed the new evidence as follows:
[TRANSLATION]
(1)
Letters
of support
I note that many of the documents
submitted in support are letters of support from friends and family members, to
which I assign little weight, given that they serve the applicant’s interests
and are not objective.
A number of letters from various Christian bodies relate to his integration
into Canadian society, his stay of removal, the seriousness of his
religious practice in Canada and the danger he faces in
his country. These aspects were considered in the previous pre-removal risk
assessment and his application for exemption from permanent resident visa
requirements, and the two applications to the Federal Court were dismissed in
2008, confirming that the two decisions were in accordance with natural justice. [Emphasis
added.]
(2)
Report
from the lawyer in Conakry dated May 12, 2008
Regarding the report by a lawyer in Conakry dated May 12, 2008, the
lawyer made inquiries at the request of Stewart Istvanffy, the applicant’s
representative. An inquiry was made to Father Apollinaire of the Sacré-Cœur
parish in Boké, Guinea, who was unable to contact
the applicant’s father because he did not want to speak to him. He said that he
met with the father of Mariama, the applicant’s wife, and other Muslims
who gave their opinions about the case and in general, and feared for the
applicant’s safety. I note that the lawyer stated in his letter:
… since Lamine married his daughter,
things have been horrible for everybody, and specifically for the young couple,
who are living in hell …
I assign little weight to this biased
report, which essentially reiterates the same evidence as the evidence already
found by the IRB not to be credible. [Emphasis added.]
(3) Article in the National Post
Regarding the article by Graeme Hamilton published
in the National Post on June 4, 2008, entitled “No faith in conversion”, although
the applicant did not state that he would be targeted because of the media
coverage in Canada, I will consider the impact of this situation on his return
to Guinea. The article summarizes the
same points as were alleged in the refugee protection application: the
rejection by the IRB on the ground that he was not credible, the same report
prepared by a law firm in Guinea, submitted with the PRRA application, the
baptism in Montréal, a petition with 300 names supporting the applicant
(which is not in the file), the comments by Mr. Istvanffy about the fact
that he will be persecuted if he returns to Guinea. The 300‑name petition that is not
in the file would add nothing important to the applicant’s application.
I note that in this case, as in the case
of numerous unsuccessful applicants who are about to be removed from Canada,
the use of the media is a common strategy in order to be found to be a refugee sur
place and thus avoid removal. This article states the opinion of a
journalist who reiterates the evidence already considered, and on which even
the Federal Court has already ruled. I am of the opinion that the media
coverage in a newspaper in Canada will have little impact on
the return of the applicant, who received a travel document from the Guinean
authorities in October 2008, valid for six months, to return to that country. I
assign little weight to the newspaper article, as I am already aware of the
evidence referred to in it and I consider it to have been written at his
lawyer’s request to serve the interests of the applicant. [Emphasis
added.]
[12]
Before
moving on to our analysis, it is useful to note the nature and content of
certain new evidence accepted by the officer:
(1)
The letter
from the Sacré-Cœur parish in Boké, dated May 4, 2008, was written by the
curate of the parish. He states that he knows the applicant and is aware of his
problems with his father, who [TRANSLATION] “is an Imam who is widely
recognized as an influential authority who was not happy about this act [the
civil marriage between the applicant and his wife Mariama Kalabone], which
dishonours and betrays him”. He says that the father “threatened his son” and
when the dispute between them “heated up”, the applicant and his family chose
to go and live in Conakry. He says:
[TRANSLATION] I am surprised to learn
that YANSANE Lamine has to return to Guinea.
Knowing this man [the father] in Boké, I attest that he will carry out these
death threats against [his son] if he returns to Guinea. El hadj Aboubacar [the
father] is one of the fundamentalists who do not accept their children changing
religion: they are born, live and die Muslims. [Emphasis added.]
(2)
The letter
from the Archdiocese of Conakry, dated May 14, 2008, was from the Diocesan
Chancellor, who certifies that:
[TRANSLATION] His conversion apparently drew
heated reaction in his Muslim family.
For his peace and safety, he apparently
left Guinea and sought refuge in Canada, thereby retaining his
Catholic faith.
It is unthinkable to Muslims for someone
to convert to Christianity; and a Christian is generally treated like a
“Kafir”, the equivalent of Satan.
It is impossible to protect
Mr. YANSANE: we are dealing with a private matter, and a family matter.
I provide this attestation for all legal
uses and purposes.
[Emphasis added.]
(3)
The
article in the National Post was published on June 4, 2008, and
recounts Mr. Yansane’s story; it was written by Graeme Hamilton. The
relevant passage is as follows:
In an interview from Guinea, his father, El Hadj Aboubacar Yansane, warned
his son to stay away. “If he stays Catholic, he can never come back here,” the
father, an imam in the town of Boke,
told the National Post. “I
am a Muslim, and if he has become Catholic, he should stay over there. I don’t
even want to see him…. He knows what will happen. It would be dangerous for him
to come back to Boke.” [Emphasis added.]
(4)
The report
of Mr. Kone’s inquiries is dated May 12, 2008. He traveled to Boké to
make inquiries. Mr. Kone met the curate of Sacré-Coeur parish, Mariama
Kalabone’s father, Imam Solmah and another person who did not want to give
a name, and an Imam in Conakry. They all corroborated the
risk to the applicant if he returned to Guinea. Mr. Kone added:
[TRANSLATION] We have seen the case of
another son of an Imam, Mr. BAIDE, who became a Christian and a
candidate for the priesthood; his life also was threatened by his father.
The Church in Guinea found that it had to move him away from his parents by
sending him to Rome,
Italy, where he completed his
religious studies and is currently a priest in the Society of Jesus.
More serious is the fact that the Guinean
authorities (police and judicial) provide no protection for victims of these
situations. If reports are made to them, they often consider that these are
family matters and the family should resolve them internally. That attitude is
not surprising, given the fact that the Guinean population is 90% Muslim and that the directors of
these various services are themselves Muslim. [Emphasis added.]
(5)
The letter
from the brother states that the applicant’s father has issued a fatwa against
him.
Analysis
[13]
The
decisions of this Court are clear on the law: in order for a stay to be
granted, an applicant must establish each of the three following factors: (1) the
existence of a serious question or questions raised by the decision to which
the stay application relates; (2) that the applicant will suffer irreparable
harm if the stay is not granted; and (3) that the balance of convenience
favours the applicant rather than the Ministers (see the decision of the
Supreme Court of Canada in R.J.R. -
Macdonald Inc. v. Attorney General of Canada, [1994] 1 S.C.R. 311 (R.J.R. – Macdonald) and the decision of the
Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration),
(1988) 86 N.R. 302 (Toth)).
[14]
Before
continuing the analysis, it will be worthwhile here to refer to certain principles
stated in the decision of the Federal Court of Appeal in Raza v.
Canada (Minister of Citizenship and Immigration), 2007 FCA 385, per
Madam Justice Sharlow, in which the Court analyzed the basic principles of the
PRRA program and how new evidence under subsection 113(a) of the Immigration
and Refugee Protection Act (IRPA), which reads as follows, is to be
addressed:
|
Consideration
of application
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;
|
|
Examen de la demande
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;
|
[15]
Justice
Sharlow’s reasons were written in English and have not been officially
translated.
[16]
Justice
Sharlow acknowledged that a PRRA is not an appeal from a decision of the RPD,
but qualified that statement by writing, at paragraph 12:
[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: [Emphasis
added.]
[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.]
[19]
Justice
Sharlow concluded:
[18] In this case, Mr. Raza and his
family submitted a number of documents in support of their PRRA application.
All of the documents were created after the rejection of their claim for
refugee protection. The PRRA officer concluded that the information in the
documents was essentially a repetition of the same information that was
before the RPD. In my view, that conclusion was reasonable. The
documents are not capable of establishing that state protection in Pakistan, which had been found by the
RPD to be adequate, was no longer adequate as of the date of the PRRA
application. Therefore, the proposed new evidence fails at the fourth question
listed above.
[Emphasis added.]
[20]
I will now
do the necessary analysis.
(a) Serious
Questions
[21]
In R.J.R. - Macdonald Inc., supra, Justices Sopinka and Cory wrote:
49 What then are the indicators
of "a serious question to be tried"? There are no specific
requirements which must be met in order to satisfy this test. The
threshold is a low one. The judge on the application must make a
preliminary assessment of the merits of the case. The decision of a lower
court judge on the merits of the Charter claim is a relevant but not
necessarily conclusive indication that the issues raised in an appeal are
serious: see Metropolitan Stores, supra, at p. 150.
Similarly, a decision by an appellate court to grant leave on the merits
indicates that serious questions are raised, but a refusal of leave in a case
which raises the same issues cannot automatically be taken as an indication of
the lack of strength of the merits.
50 Once satisfied that the
application is neither vexatious nor frivolous, the motions judge should
proceed to consider the second and third tests, even if of the opinion that the
plaintiff is unlikely to succeed at trial. A prolonged examination of the
merits is generally neither necessary nor desirable. [Emphasis added.]
[22]
In that
decision, the judges stated that there were two exceptions to the general rule
that a judge should not engage in an extensive review of the merits. Those two
exceptions are not applicable in this case.
[23]
I find that the applicant has established the
existence of the following serious questions:
1. Did the officer comply with
the instructions regarding new evidence set out in Raza, supra?
2. Did the officer err in law in
her assessment of the new evidence by assigning only very little weight to the
new evidence referred to in paragraph 10 above, on the ground that: (1) it
served the applicant’s interests [letters of support (see Perea v. Canada (Minister
of Citizenship and Immigration), 2008 FC 432, at paragraph 7)]; (2) it
had already been considered [letters from the curate in Boké and from the Archdiocese];
(3) the report by Mr. Kone carried little weight because he was retained
by the applicant’s counsel in Canada [the Kone report]; or (4) it related to
the same allegations as were made in his refugee protection claim [the National
Post article]?
3. Did the officer refuse to
consider, or disregard, the new evidence relating to state protection noted in
the Kone report and in the letter from the Diocesan Chancellor, as well as the
example similar to the applicant’s case of the person who went into exile,
cited in the Kone report?
4. Did the officer minimize the
importance of the letters from Catholic authorities in Guinea when she considered them to be simply
letters of support?
(b) Irreparable Harm
[24]
I find
that the applicant has established that he would suffer irreparable harm if the
stay is not granted, based on the simple fact that his life is in danger if he
returns to Guinea.
(c) Balance of Convenience
[25]
The
balance of convenience favours the applicant, who has established that there
are several serious questions and that he would suffer irreparable harm.
[26]
For these reasons,
the stay is granted.
“François Lemieux”
___________________________
Judge
Ottawa, Ontario
January 23,
2009
Certified
true translation
Brian
McCordick, Translator
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