Date: 20090127
Docket: IMM-5039-08
Citation: 2009 FC 84
Ottawa, Ontario, January 27,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
AISSATOU DIALLO
RAMATOULAYE KABA
DJIBRIL KABA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION AND THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
In the present matter, the evidence submitted in support of the
Applicants’ Pre-Removal Risk Assessment (PRRA) application had either already
been considered by the Refugee Protection Division (RPD) or could reasonably
have been expected in the circumstances to have been presented to the RPD in
the context of the refugee claim.
[2]
This Court has already held that such evidence is not “new” and
must be rejected even if it would have contradicted a credibility finding made
by the RPD:
[17] The
Officer rejected much of the evidence filed because it did not qualify as “new
evidence”. The Applicants assert that much of the rejected evidence contradicts
the credibility finding – a finding of fact – of the RPD. This is one of the
grounds, the Applicants submit, upon which evidence ought to be admitted as
“new”, as found in Raza, above, at paragraph 13(3)(c).
[18] In
my view, the Applicants have misapplied the Court of Appeal decision in Raza.
I do not read the decision and, in particular paragraph 13, as a statement to
the effect that, if any one of the questions posed can be answered in the
positive, the evidence is “new”. As noted in paragraph 15 of Raza
decision, evidence must be considered “unless it is excluded on one of
the grounds stated in paragraph [13] above”. Thus, if the “new” evidence could
have been presented at the RPD hearing, then s. 113(a) requires that
such evidence be rejected, even if it contradicts a finding of fact by the RPD.
This is reinforced by paragraph 13(5)(a) of the Raza decision.
(Mooketsi
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1401).
[3]
In Raza v. Canada (Minister of Citizenship and Immigration),
2007 FCA 385, 162 A.C.W.S. (3d) 1013, the Federal Court of Appeal clarifies the
notion of “new evidence” that may be considered on a PRRA application and
states that a negative RPD decision 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”.
[4]
In light of the above, the PRRA Officer committed no reviewable
error in rejecting the Applicants’ PRRA application for failure to submit new
evidence, there was no requirement to hold an oral hearing and the PRRA
Officer’s reasons are sufficient in the circumstances of this case.
II. Facts
[5]
The
principal Applicant, Ms. Aissatou Diallo and her adult daughter, Ms. Ramatoulaye
Kaba, are citizens of Guinea while the minor child, Djibril Kaba, is a citizen
of the United
States.
[6]
On
August 4, 2005, the Applicants came to Canada from the United States, where they had been living since 1991,
and claimed refugee protection.
[7]
The Applicants based
their claim to refugee protection on the contention that the principal
Applicant is a lesbian and that her adult daughter would be forced into an
arranged marriage with a sixty-year-old man.
[8]
On October 25, 2007,
the RPD of the Immigration and Refugee Board (Board) determined that the
Applicants were not Convention refugees or persons in need of protection due to
the overall lack of credibility of their claim.
[9]
On March 25, 2008, the Federal Court denied the Applicants’
application for leave and for judicial review regarding the RPD’s decision to
deny their claim to refugee protection.
[10]
On January 25, 2008, the Applicants made a PRRA application on
the same grounds as those raised in their claim to refugee protection.
[11]
The PRRA Officer rejected the Applicants’ application for
protection because no new evidence was submitted in support of their
application. The documents annexed to the Applicants’ PRRA submissions had
already been considered by the RPD in the context of their claim to refugee
protection and the subsequently submitted letters and affidavit, which
post-dated the RPD decision, did not meet the definition of new evidence
because they did not reveal new facts and could reasonably be expected to have
been submitted to the RPD in support of the refugee claim.
[12]
The PRRA Officer also considered the documentary evidence on
country conditions in Guinea, noted that improvements were made in the area of
human rights, acknowledged that certain problems persisted in the area of human
rights and concluded that the Applicants had failed to establish a well founded
fear of persecution or a risk of torture, threat to life or cruel or unusual
treatment or punishment in the event of their return to that country.
[13]
On November 14, 2008, the Applicants filed an application for
leave and for judicial review of the negative PRRA decision. The present motion
for a stay of removal is made ancillary to that application.
III. Issue
[14]
Have the Applicants failed to meet the tri-partite test for
warranting a stay of their removal given the lack of a serious issue, the
absence of demonstrable proof of irreparable harm, and the balance of convenience
favouring the Minister?
IV. Analysis
The test
for granting a stay
[15]
The Supreme Court of Canada has established a tri-partite test
for determining whether interlocutory injunctions should be granted pending a
determination of a case on its merits, namely, (i) whether there is a serious
question to be tried; (ii) whether the litigant who seeks the interlocutory
injunction would, unless the injunction is granted, suffer irreparable harm; and
(iii) the balance of convenience, in terms of which of the two parties
will suffer the greater harm from the granting or refusal of an interlocutory
injunction pending a decision on the merits. The Applicants must satisfy all
three branches of the test before this Court can grant a stay of proceedings (Toth v. Canada (Minister
of Employment and Immigration) (1988), 86 N.R. 302 11 A.C.W.S. (3d) 440 (F.C.A.);
RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 46
A.C.W.S. (3d) 40).
(i) Serious Issue
[16]
The Applicants allege that the PRRA Officer erred by failing to
grant them an oral hearing, by arriving at unreasonable conclusions and by
failing to provide sufficient reasons.
[17]
The PRRA Officer reviewed the decision of the RPD, the
Applicants’ PRRA submissions and the “new” evidence provided by the Applicants
in addition to relevant documentary evidence. The PRRA Officer found the
existence of no new evidence as required by subsection 113(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[18]
Subsection 113(a) of the IRPA stipulates that a PRRA
application is to be conducted on the basis of only new evidence
that arose after the rejection of the Applicants’ refugee claim, was not
reasonably available or could not reasonable have been expected to be presented
in the circumstances:
|
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;
|
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;
|
[19]
In the event that the new evidence referred to in paragraph 113(a)
of the IRPA raises a serious issue of the applicant’s credibility, is central
to the decision and would justify allowing the application for protection, a
hearing is required to be held:
|
167. For the
purpose of determining whether a hearing is required under paragraph 113(b)
of the Act, the factors are the following:
(a) whether there is evidence that raises a
serious issue of the applicant's credibility and is related to the factors
set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the
decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would
justify allowing the application for protection.
|
167. Pour l’application de
l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si
la tenue d’une audience est requise :
a) l’existence
d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97
de la Loi qui soulèvent une question importante en ce qui concerne la
crédibilité du demandeur;
b) l’importance
de ces éléments de preuve pour la prise de la décision relative à la demande
de protection;
c) la question de savoir si ces
éléments de preuve, à supposer qu’ils soient admis, justifieraient que soit
accordée la protection
|
[20]
As the PRRA Officer found the existence of no evidence that met
the definition of “new” evidence, the legislative criteria relating to the
holding of a hearing in the context of a PRRA application were not met and
there was consequently no duty to hold an oral hearing in the circumstances of
this case.
[21]
In Raza, above, the Federal Court of Appeal clarifies the
notion of “new evidence” that may be considered on a PRRA application and
states that a negative RPD decision 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”.
[22]
In the present matter, the evidence submitted in support of the
Applicants’ PRRA application had either already been considered by the RPD or
could reasonably have been expected in the circumstances to have been presented
to the RPD in the context of the refugee claim.
[23]
This Court has already held that such evidence is not “new” and
must be rejected even if it would have contradicted a credibility finding made
by the RPD:
[17] The
Officer rejected much of the evidence filed because it did not qualify as “new
evidence”. The Applicants assert that much of the rejected evidence contradicts
the credibility finding – a finding of fact – of the RPD. This is one of the
grounds, the Applicants submit, upon which evidence ought to be admitted as
“new”, as found in Raza, above, at paragraph 13(3)(c).
[18] In
my view, the Applicants have misapplied the Court of Appeal decision in Raza.
I do not read the decision and, in particular paragraph 13, as a statement to
the effect that, if any one of the questions posed can be answered in the
positive, the evidence is “new”. As noted in paragraph 15 of Raza
decision, evidence must be considered “unless it is excluded on one of
the grounds stated in paragraph [13] above”. Thus, if the “new” evidence could
have been presented at the RPD hearing, then s. 113(a) requires that
such evidence be rejected, even if it contradicts a finding of fact by the RPD.
This is reinforced by paragraph 13(5)(a) of the Raza decision.
(Mooketsi,
above).
[24]
In light of the above, the PRRA Officer committed no reviewable
error in rejecting the Applicants’ PRRA application for failure to submit new
evidence, there was no requirement to hold an oral hearing and the PRRA
Officer’s reasons are sufficient in the circumstances of this case.
(ii) Irreparable Harm
[25]
The Applicants have not met the second part of the tri-partite
test, namely, demonstrable proof of irreparable harm.
[26]
This Court has held that irreparable harm is a strict test in
which serious likelihood or jeopardy to the applicant’s life or safety
must be demonstrated. The unsubstantiated risk identified by the Applicants
does not meet this threshold (Frankowski v. Canada (Minister of Citizenship and Immigration) (2000), 98 A.C.W.S.
(3d) 641, [2000] F.C.J. No. 935 (QL) at para. 7).
[27]
Irreparable harm must not be speculative nor can it be based on a
series of possibilities. The Court must be satisfied that the irreparable harm will
occur if the relief sought is not granted (Atakora v. Canada 9Minister of Employment
and Immigration)
(1993), 68 F.T.R. 122, 42 A.C.W.S. (3d) 486 (F.C.T.D.) at para. 11).
[28]
The only requirement at this time is that the Applicants return
to the United States. There has been no risk identified by the Applicants in
respect of the United States. Irreparable harm must be evaluated in relation to
the country to which the Minister proposes to return an individual. There is no
irreparable harm in the case at bar, given that the Applicants are being
removed to the United States (Radji v. Canada (Minister of Citizenship and Immigration), 2007 FC 100, 308 F.T.R.
175 at paras. 41 and 42).
[29]
The Federal Court of Appeal has found that the United States
institutions have democratic systems of checks and balances, an independent
judiciary and constitutional guarantees of due process. There is no irreparable
harm arising should the Applicants engage the American immigration system. The
Applicants will have access to that country’s removal process, and any other
relevant immigration processes (Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 17,
157 A.C.W.S. (3d) 153 at para. 46; Mughal v. Canada (Minister of Public
Safety and Emergency Preparedness), 2007 FC 970, 160 A.C.W.S. (3d) 842 at
para. 16; Lakha v. Canada (Minister of Citizenship and Immigration), 2008
FC 1204, [2008] F.C.J. No. 1633 (QL); Qureshi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 97, 155 A.C.W.S (3d) 910 at paras. 1
and 22; Hisseine v. Canada (Minister of Citizenship and Immigration), 2005
FC 388, 138 A.C.W.S. (3d) 144 at para. 8; Joao v. Canada (Minister of
Citizenship and Immigration), 2005 FC 880, 140 A.C.W.S. 93d) 533 at para.
10; Mikhailov v. Canada (Minister of Citizenship and Immigration) (2000) 191 F.T.R. 1, 97
A.C.W.S. (3d) 727 at paras. 11–12 (T.D.); Akyol v. Canada (Minister of Citizenship
and Immigration),
2003 FC 931, 124 A.C.W.S. (3d) 1119 at para. 10).
[30]
Moreover, the case law of this Court has on many occasions held
that a removal to the United States, with potential removal from there to one's
country of origin, does not constitute irreparable harm (Haddad v. Canada (Minister
of Citizenship and Immigration), 2003 FCT 405 124 A.C.W.S. (3d) 336 (T.D.) at
para. 10; Rahim v. Canada (Minister of Citizenship and Immigration), 2001
FCT 130, 103 A.C.W.S. (3d) 789 (T.D.), at para. 9; Anand v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 1283, 110 A.C.W.S. (3d) 340
(T.D.) at para. 8; Nabut v. Canada (Minister of Citizenship and Immigration),
2001 FCT 1392, 110 A.C.W.S. (3d) 1101 (T.D.); Aquila v. Canada (Minister of
Citizenship and Immigration) (2000) 94 A.C.W.S. (3d) 960, [2000] F.C.J. No.
36 (T.D.) (QL) at para. 15; Akyol, above at para. 7; Chen v. Canada (Minister
of Citizenship and Immigration), 2004 FC 464, 205 F.T.R. 285).
[31]
In any event, even if the Applicants were to be returned to
Guinea by the American authorities, the risk that the Applicants allege there
has already been assessed by the RPD, (leave denied by this Court), and by the
PRRA Officer. The allegations of risk are essentially the same as those
considered previously.
[32]
Neither the RPD nor the PRRA Officer who rendered the PRRA
decision was satisfied that the Applicants were personally at risk. Leave to
judicially review the RPD decision was dismissed. Accordingly, irreparable harm
has not been established on the grounds of any alleged personal risk. The risks
claimed by the Applicants, which have already been reasonably considered,
cannot now serve as a basis for alleging irreparable harm (Salman v. Canada (Minister of Citizenship
and Immigration), 2001 FCT
507, 106 A.C.W.S. (3d) 121 at para. 6; Daniel v. Canada (Minister of
Citizenship and Immigration), 2007 FC 392, 156 A.C.W.S. (3d) 1144 at para.
27).
[33]
This Court has repeatedly
held that a risk rejected by the RPD and a PRRA Officer cannot serve as a basis
for supporting irreparable harm in a stay application (Joao, above at para.
11; Akyol, above).
[34]
Furthermore, disruption of education does not constitute
irreparable harm. As stated by Justice Marc Nadon: “leaving school before the
completion of the school year will no doubt be highly inconvenient and will
most likely necessitate the redoing of their school year. However, this does
not constitute irreparable harm.” (Mahadeo v. Canada (Minister of Citizenship and Immigration) (1999) 166 F.T.R. 315,
86 A.C.W.S. (3d) 773 (T.D.) at para. 6; Strachan v. Canada (Minister
of Citizenship and Immigration) (1998), 157 F.T.R. 267, 84 A.C.W.S. (3d)
545 (T.D.) at para. 24).
[35]
Thus, the Applicants have failed to establish irreparable harm
due to their removal to the United States.
(iii) Balance of
Convenience
[36]
The Applicants have not met the third aspect of the tri-partite
test, insofar as the balance of convenience favours the Minister.
[37]
In addition, with respect to the risk determination process, as
Justice Donna McGillis stated, in Sinnappu v. Canada (Minister of
Citizenship and Immigration), [1997] 2 F.C. 791, 126 F.T.R. 29 (T.D.): “it
must be recognized that, at some point in the system, there has to be finality.”
[38]
Where the applicant has had the benefit of a refugee
determination and a risk assessment in similar cases, this Court has held that
the balance of convenience lies with the Minister (Ayub v. Canada (Solicitor General), 2006 FC 147, 145
A.C.W.S. (3d) 1122 at para.6; Chen v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1424, 134 A.C.W.S. (3d) 681; Park Lee v. M.C.I.
(IMM-1122-05, IMM-1182-05), 28 February 2005 per Justice Judith Snider).
[39]
The balance of any inconvenience which the Applicants may suffer
as a result of their removal from Canada does not outweigh the public interest
which the Minister seeks to maintain in the application of the IRPA,
specifically the Minister’s interest in executing deportation orders as soon as
reasonably practicable.
[40]
There is no statutory provision for a stay pending the review of
a PRRA decision. This indicates that Parliament intended that failed PRRA
applicants could be removed prior to their judicial review application being
determined. This is consistent with the Minister’s duty to execute removal
orders as soon as reasonably practicable (Immigration and Refugee Protection Regulations, SOR/2002-227, sections
231 and 232; Golubyev v. Canada (Minister of Citizenship and
Immigration), 2007
FC 394, 156 A.C.W.S. (3d) 1147).
JUDGMENT
THIS COURT ORDERS that the Applicants’ motion for a stay of their
removal be dismissed.
“Michel M.J. Shore”
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