Date: 20090223
Docket: IMM-2750-08
Citation: 2009 FC 186
Ottawa,
Ontario, February 23, 2009
Present:
The Honourable Mr.
Justice
Shore
BETWEEN:
SERGE
CEDRICK BENGABO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
1. Introduction
[1]
Once
an applicant’s testimony has been found not to be credible by previous
decision-makers, it is not permitted, absent valid evidence, be it at the leave
stage, after or on application for judicial review, to submit new evidence. This
fundamental principle of administrative law has been reiterated on many
occasions by this Court and applies in this case (Asofov v. M.C.I.,
IMM-7425-93, (May 18,1994) (F.C.); Walker v. Randall (1999), 173 F.T.R.
161 (F.C.); Franz v. Canada (Minister of Employment and Immigration)
(1994), 80 F.T.R. 79, 90 A.C.W.S. (3d) 821 (F.C.); César v. M.E.I.,
A-42-93, (October 8, 1993) (F.C.); F.M.R.F. v. Canada (Minister of
Employment and Immigration), (1992), 56 F.T.R. 270, 35 A.C.W.S. (3d) 594
(F.C.); Quintero v. Canada (Minister of Citizenship and Immigration)
(1995), 90 F.T.R. 251, 53 A.C.W.S. (3d) 379 (F.C.); Quito v. Canada (Minister
of Citizenship and Immigration) (1990), 32 F.T.R. 222, 19 A.C.W.S. (3d) 908
(F.C.)).
II. Judicial proceedings
[2]
This
is an application for judicial review of a decision of a Pre-Removal Risk
Assessment (PRRA) officer, dated April 30,
2008,
rejecting the application made by the applicant Serge Cedrick Bengabo.
III.
Facts
[3]
Mr.
Bengabo, a citizen of the Central African Republic (CAR), was born on September
28, 1983.
[4]
He
alleges that in 2001, his father, a diplomat and politician, was assassinated,
and he did not know where his mother was. In November 2002, he left the CAR for
France, where he
claimed refugee protection. His claim was rejected in May 2005, and he voluntarily
returned to his country of origin. He claims that, after arriving in the CAR in
June 2005, he learned that his mother was in the northern part of the country,
in the city of Paoua, and that he went there to look for her. While
travelling to the village where he thought his mother was living, he was stopped
by rebels. He explains that he was detained by the rebels for two days before
he finally escaped into the bush during an attack on the rebel base. According
to him, when he returned to Paoua, he was detained for one day by government
security forces, who mistook him for a rebel. He states that he escaped and came
to Canada to claim
refugee protection. He alleges that in his country he was sentenced to a 2-year
prison term for the offence of escaping and 10 years of hard labour for
associating with conspirators.
[5]
Mr.
Bengabo arrived in Canada on August 28,
2005,
after a journey of several days, transiting through Chad and France. He claimed
refugee protection on September 7, 2005. Mr. Bengabo alleges fearing imprisonment
by government security forces if he were to return to the CAR. On April 6, 2006, the
Immigration and Refugee Board (IRB) rejected his claim for refugee protection. The
IRB found that Mr. Bengabo’s story was not credible and that he invented his
story to justify a claim for refugee protection. On August 17, 2006, this Court
dismissed his application for leave and for judicial review at the leave stage.
IV. Impugned decision
[6]
On
March
14, 2008,
Mr. Bengabo submitted his PRRA application and two documents concerning his
arrest and escape. In a decision dated April 30, 2008, the PRRA officer
dismissed the PRRA application on three grounds.
[7]
The
officer concluded that Mr. Bengabo had not submitted new evidence [translation] “having probative value
that would lead me to make findings of fact different from those made by the
RPD” (Decision at page 6). In his decision, the officer studied the notice of
escape and wanted notice issued by the Department of Justice, dated January 30, 2006, and a
certificate of judgment for the Public Treasury, dated September 28, 2006. The
officer concluded that the copies submitted were in poor condition and that the
legal signatures and seal were illegible. The officer commented that Mr.
Bengabo did not specify how he had obtained these documents, who had sent them to
him, or whether the originals were in fact in his possession. Moreover, Mr.
Bengabo did not explain why he had not submitted the notice of escape to the IRB,
even though the notice had been issued before the IRB rendered its decision. The
officer also noted that the notice of escape had been issued seven months after
Mr. Bengabo’s escape.
[8]
In
this regard, the officer concluded that Mr. Bengabo had not submitted any probative
documents showing that he could be at risk at present or if he were to return
to his country of origin.
[9]
Mr.
Bengabo did not prove to the officer that he had been detained by rebels or
government security forces or even that he might be imprisoned if he were to return.
In his reasons, the officer quoted the IRB’s findings concerning Mr. Bengabo’s
credibility:
[translation]
The claimant
lacked credibility and his testimony was not trustworthy in respect of the
central elements of his claim for refugee protection, because his testimony was
inconsistent and implausible
. . .
The panel
rejects the claimant’s testimony as lacking in credibility, because he changed
his version of the facts to suit the questions asked of him, without explaining
the reasons, despite the opportunities given by the panel.
. . .
The panel
rejects the claimant’s testimony as totally lacking in credibility, because his
oral testimony contradicted his written testimony and he was incapable of
providing an explanation, other than by changing his oral testimony to be
consistent with his narrative. The inconsistencies in the claimant’s testimony
seriously undermine his credibility and lead the panel to conclude that the
claimant has never been to the Paoua area.
. . .
In light of the
documentary evidence, the panel is of the opinion that it is unreasonable to
believe that the claimant would have been afforded such preferential treatment
in a detention centre, which the claimant was unable to identify, when he was
supposedly accused of being a rebel. That inconsistency became implausibility
when the claimant alleged that the soldier pointed to the tall grass and told
him to relieve himself there and that, thus freed of all restraints, he was
able to flee. The panel does not believe that the claimant was detained by
soldiers of his government. The panel believes that the claimant’s story was
invented to justify a claim for refugee protection.
(Decision at page 5).
[10]
Finally,
the officer rejected the claim that the political and military crisis presently
raging in the CAR is sufficient to show the risk Mr. Bengabo would face if he were
to return. The documentary evidence showed that the CAR is a country where there
are significant human rights problems, that the authorities have made
considerable use of arbitrary arrests and detentions, that the government
restricts freedom of movement and that conditions in detention are harsh. Nevertheless,
the officer concluded that the situation caused by the insecurity and conflicts
affects the general population of the CAR and that Mr. Bengabo did not
establish any connection between the authorities’ violence and his particular
situation.
[11]
Finally,
on July
10, 2008,
Justice Michel Beaudry of this Court allowed the motion for a stay of the
removal order made against Mr. Bengabo. The Court’s judgment was essentially
based on the new evidence submitted by Mr. Bengabo regarding his alleged conviction.
V. Issue
[12]
Was
the officer’s decision not to give the two documents submitted by Mr. Bengabo
any probative value reasonable?
VI. Analysis
Standard of review
[13]
Before
Dunsmuir v. New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, pure
questions of fact decided by a PRRA officer in rendering an impugned decision
were assessed according to the patent unreasonableness standard (Mugesera v.
Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2
S.C.R. 100 at paragraph 38).
[14]
However,
where a PRRA officer is asked to verify whether documents meet the requirements
under paragraph 113(a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA), he or she is considering a question of mixed fact and
law subject to reasonableness simpliciter standard of review. This
standard also applies to the final decision concerning the PRRA as a whole (Elezi
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 240, 62 Imm. L.R. (3d) 66 at
paragraphs 21-22).
[15]
In
this case, we have a question of mixed fact and law. In light of the judgment
of the Supreme Court of Canada in Dunsmuir, above, the question that
this Court must now ask is whether or not the decision is reasonable. If it is,
this Court must refuse to intervene and must dismiss the application. According to the Supreme Court of Canada, the qualities to
be considered are a decision’s justification, transparency and intelligibility.
The accepted solutions must be defensible in respect of the facts and
the law (Dunsmuir at paragraph 47).
Documents submitted
[16]
The
officer studied copies of the notice of escape and the certificate of judgment.
The copies submitted to the officer were [translation]
“of poor quality”:
[translation]
In one of them,
the seals are illegible, and the other does not have a seal, or at least none
is visible.
(Decision
at page 4).
[17]
Moreover,
the notice of escape could have been submitted to the IRB. The officer noted
that Mr. Bengabo did not explain this omission in his submissions:
[translation]
I note that the applicant does not
specify how he obtained these documents, who sent them to him, if he has the originals
in his possession or why he did not submit one of them to the IRB.
I note that the notice of escape and wanted
notice was issued some seven months following the applicant’s escape.
(Decision at page 4).
[18]
Mr.
Bengabo argues that the illegible seals and the poor-quality photocopies of the
documents are not, on their own, sufficient grounds for excluding the
documents, which are new evidence within the meaning of paragraph 113(a)
of the IRPA. According to Mr. Bengabo, the certificate of judgment would have
qualified as new evidence because it was issued after the IRB decision.
[19]
Mr.
Bengabo submitted two judgments for consideration. He cited Aung v. Canada (Minister of
Citizenship and Immigration), 2006 FC 82, 145 A.C.W.S. (3d) 896, where
it was held effect that an officer does not have jurisdiction to determine
whether or not a document apparently issued by a court is authentic. The other
judgment he cited was Masongo v. Canada (Minister of
Citizenship and Immigration), 2008 FC 39, [2008] F.C.J. No. 44 (QL), in
which the Court declared that a document purportedly issued by a foreign authority is presumed
to be valid unless there is evidence to the contrary (at paragraph 12). The
Court placed the onus of investigating the authenticity of documents on the
PRRA officer: “It would have been appropriate to investigate the authenticity
of the police letter. . . . PRRA officers have means at their disposal and
there are times when they should be used . . .” (Masongo at paragraph
15).
[20]
Contrary
to what Mr. Bengabo alleges, the real issue here is not whether or not the
documents are authentic. The issue is whether the documents are new evidence within
the meaning of paragraph 113(a) of the IRPA, so that they may be
submitted for consideration by the officer.
[21]
Paragraph
113(a) 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;
|
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;
|
[22]
As
regards the notice of escape, it was reasonable for the officer to give it no
probative value. In Elezi, above, Justice Yves de Montigny stated that evidence that existed before
the IRB’s negative decision requires an explanation before it can be admitted
with a PRRA application:
[26] I
am prepared to accept that paragraph 113(a) refers to three distinct
possibilities and that its three parts must be read disjunctively. If the use
of the word “or” is to be given meaning, the three parts of paragraph 113(a)
must clearly be seen as three separate alternatives. While the first part
refers to evidence that postdates the Board’s decision, the second and third
parts obviously relate to evidence that predates its decision. Only evidence
that existed before the Board’s negative decision requires an explanation
before it can be admitted with a PRRA application. As for evidence that arises
after the Board’s decision, there is no need for an explanation. The mere fact
that it did not exist at the time the decision was reached is sufficient to
establish that it could not have been presented earlier to the Board
[23]
The
officer identified [translation] “one
of them [the two documents submitted]” as predating the IRB decision (Decision
at page 4). If Mr. Bengabo believes that the notice of escape meets the
requirements of the second or third categories of evidence described at paragraph
113(a) of the IRPA, it is up to him to provide explanations. It is up to
the officer to assess the explanations in light of the circumstances in the
case. In this case, Mr. Bengabo did not give any explanations. It was therefore
open to the officer to conclude that Mr. Bengabo did not discharge his burden
of explaining why the notice of escape was not submitted to the IRB.
[24]
As
regards the certificate of judgment, the mere fact that a document is dated after
an IRB decision does not make it new evidence within the meaning of paragraph 113(a)
of the IRPA:
[27] That
being said, a piece of evidence will not fall within the first category and be
characterized as “new” just because it is dated after the Board’s
decision. If that were the case, a PRRA application could easily be
turned into an appeal of the Board’s decision. A failed refugee applicant could
easily muster “new” affidavits and documentary evidence to counter the Board’s
findings and bolster his story. This is precisely why the case law has
insisted that new evidence relate to new developments, either in country
conditions or in the applicant’s personal situation, instead of focusing on the
date the evidence was produced . . .
(Elezi,
above).
[25]
In
Raza v. Canada (Minister of Citizenship and Immigration), 2006 FC
1385, 304
F.T.R. 46 (aff’d Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, 162 A.C.W.S. (3d) 1013), Justice
Richard Mosley dismissed an application for judicial review because the new
evidence submitted to the officer was not any different from the information
that had been submitted to the IRB:
[22] It must be recalled that the role of the PRRA
officer is not to revisit the Board’s factual and credibility conclusions but
to consider the present situation. In assessing “new information” it is not
just the date of the document that is important, but whether the information is
significant or significantly different than the information previously
provided: Selliah, above at para. 38. Where “recent” information
(i.e. information that post-dates the original decision) merely echoes
information previously submitted, it is unlikely to result in a finding that
country conditions have changed. The question is whether there is anything of “substance”
that is new . . .
[23] In the present case, though the evidence of the
applicant post-dates the refugee determination in time with respect to the date
it was written, nothing in the letter, affidavits or articles is substantially
different than the information that was before the Board. As noted by the
Officer with respect to the letter and affidavits: they “refer only to the
applicants’ circumstances which were considered by the Board”, “no new risk
developments are contained”, and they contain “essentially a repetition of the
same information”. . .
[26]
In
this case, it is not enough for the new evidence to merely confirm the facts relied
on by Mr. Bengabo before the IRB. The certificate of judgment supports Mr. Bengabo’s
allegations that he was convicted and sentenced to a term of imprisonment and
hard labour. However, the IRB completely rejected his story as not credible,
including the reasons given for his alleged conviction. The officer was not
required to consider facts that did not involve new developments. A PRRA
application is not and must not become an appeal from the IRB decision. Mr.
Bengabo has already contested the IRB decision before the Federal Court, and
his application was dismissed at the leave stage.
[27]
In
the alternative, it was open to the officer to give no probative value to the
two documents without investigating their authenticity. Other factors that an
officer may consider when he or she decides whether evidence has probative
value are the nature of the information, its significance for the case and the
credibility of its source (Elezi, above, at paragraph 41). To elaborate
on this last point, the case law indicates that a decision-maker may disregard
documents without investigating them if there is sufficient evidence to doubt
their authenticity or if the applicant is not trustworthy (Allouche v.
Canada (Minister of Citizenship and Immigration) (2000), 99 A.C.W.S. (3d)
648, [2000] F.C.J. No. 339 (QL) (T.D.) at paragraph 4; Riveros v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 1009, 113 A.C.W.S. (3d) 323 at
paragraphs 53-54; Sheikh v. Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 238, 21 A.C.W.S. (3d) 1350 (C.A.)).
[28]
In
this case, the IRB decided that Mr. Bengabo was not credible with regard to the
events to which the documents related. On the basis of the judgments in Allouche,
Riveros and Sheikh, above, it was open to the officer to give no
probative value to the two documents without investigating them.
New evidence
on record
[29]
After
the officer rendered his decision, Mr. Bengabo produced new documents
concerning the authenticity of the documents submitted for the PRRA, namely the
affidavit of his uncle, Vincent Biande Baguiwe. In the context of a judicial
review of a decision, only evidence that was before the decision-maker is
admissible (Elezi, above at paragraph 20). An applicant cannot remedy
the shortcomings of his or her submissions to a PRRA officer.
[30]
Mr.
Biande Baguiwe faxed the same two documents that Mr. Bengabo had submitted to
the officer. The only difference was that the documents sent by Mr. Biande
Baguiwe were apparently certified by a lawyer in the CRA. The affidavit of Mr. Biande
Baguiwe must be excluded, as it was not part of the record when the officer
rendered his decision.
VII. Conclusion
[31]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial
review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Michael
Palles
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