Date: 20090430
Dockets: IMM-2098-08
IMM-2099-08
Citation: 2009 FC 437
Ottawa, Ontario, April 30,
2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ADAMA TAHIRU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
Background
[1]
Counsel
for the Minister raises a preliminary objection to the Court hearing the merits
these two judicial review applications brought by Adama Tahiru (the Applicant),
now 26 years of age and a citizen of Ghana who was born, raised
and educated in its capital city of Accra. Counsel for the Minister
asserts the Applicant does not come to this Court with clean hands, because,
after her application to stay her removal was refused by the Chief Justice of
this Court on June 30, 2008, she did not report for her removal but instead went
underground. Despite a warrant for her arrest having been issued on July 8,
2008, she has yet to be found. The authorities are still searching for her.
Counsel for the Minister relies on the Federal Court of Appeal’s decision in Canada (Minister of Citizenship and Immigration) v.
Kaileshan Thanabalasingham, 2006 FCA
14 (Thanabalasingham) which holds “if satisfied that an applicant has lied, or is otherwise
guilty of misconduct, a reviewing court may dismiss the application
without proceeding to determine the merits or, even though having found a
reviewable error, decline to grant relief”. Justice Evans, on behalf of the
Federal Court of Appeal, identified several relevant factors which should guide
the exercise of the reviewing Court’s discretionary powers in the matter. As an
aside, the Thanabalasingham case was cited with approval by Justice Binnie, for the majority, in
its recent decision in Canada (Citizenship and Immigration v. Khosa), 2009 SCC 12, at
paragraph 40 (Khosa).
[2]
The
Applicant launched these two judicial review applications following two
decisions by the same Immigration Officer, Linda Houle (the Officer), who on February
8, 2008 (1) refused her application for permanent resident status on
humanitarian and compassionate grounds (the H&C decision – IMM-2099-08) and
(2) refused her Pre-Removal Risk Assessment (PRRA) application (the PRRA
decision – IMM-2098-08). The Applicant’s H&C application alleges the same
risks as she expressed in her PRRA application and which she had also expressed
to the Refugee Protection Division (the RPD). That fear is two-fold: (1) being
compelled by her mother and her tribe to marry, against her wishes, a 50 year
old male, Hajj Nasuru, who already had three wives and who had paid her family
a substantial amount of money for her hand and (2) coupled with this forced
marriage, she would be compelled to undergo a forced Female Genital
Circumcision or Mutilation (FGM). As will be noted, the Officer’s reasons on
the issue of the Applicant’s fear of return are substantially the same in both
decisions. As a matter of convenience, counsel for the Applicant concentrated
on the Officer’s reasons for decision in the H&C decision.
[3]
The
Applicant alleges her mother told her in March 2003 about the arranged
marriage and circumcision. The Applicant resisted but her mother was adamant.
In June 2003, the Applicant applied to the Canada World Youth Program.
She was accepted, obtained a Canadian visitor’s visa in August and came to this
country on September 19, 2003, went to Halifax then made a refugee claim
in Toronto on November 17, 2003 after viewing a video in Halifax about
FGM in Ghana.
[4]
On
April 27, 2004, the RPD rejected her claim for asylum on two grounds:
credibility and state protection. The RPD based its credibility findings on
contradictory evidence advanced by the Applicant as to which tribe her mother
was from, where her parents were born (in Accra or in the Upper East-Northern Region
of Ghana where norms and traditions include the practice of FGM,
notwithstanding FGM has been illegal in Ghana since 1994), whether her elder
sister Zuweratu was in hiding to escape being subjected to FGM on account of a
forced marriage espoused by her mother and why her younger sister, who was also
married and subsequently divorced, was not subjected to FGM.
[5]
The
RPD also found “even if the panel had found the claimant’s evidence be credible
– which is not the case – the panel would still find that the claimant would
have been able to avail herself of the protection of the state”. The RPD
noted FGM has been banned in Ghana since 1994 and there was a special police
unit within the police in Ghana called the Women and Juvenile Unit (WAJU),
which deals exclusively with women’s issues such as spousal abuse and FGM, treated
complaints seriously and acted on them. The RPD further noted the
Applicant never went to the police to seek protection. The RPD wrote:
As indicated above, evidence
shows that the police in Ghana do prosecute people who
practice FGM. WAJU, which is part of the police force, has offices in nine
different cities around the country, takes gender related complaints seriously
and acts on them. FGM has not been eradicated in Ghana and evidence shows the practice has gone
underground since it was banned. Nevertheless, evidence also shows that the
state of Ghana is making serious efforts to
protect its young citizens from this practice. Case law stipulates that no
state can ever offer complete protection to all of its citizens, at all times.
State protection does not have to be perfect merely adequate.
[6]
The
Applicant sought leave to have the RPD’s decision judicially reviewed. Leave
was denied by a judge of this Court on July 13, 2004.
The decisions under review
[7]
As
noted, the Applicant’s H&C application raised the same risk as in her PRRA
application. Officer Houle’s analysis is the same for both decisions. The
principal argument, raised by counsel for the Applicant in both judicial review
applications, focussed on the manner which Officer Houle treated the new
evidence which had been put forward by the Applicant in her PRRA application.
This argument triggers the application of section 113 of IRPA as
interpreted recently by the Federal Court of Appeal in Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385 (Raza). It is to be
observed that the credibility of the Applicants was not an issue in Raza.
State protection was determinative.
[8]
In
support of her PRRA application, the Applicant filed 35 documents. The Officer
had to decide whether this documentation constituted new evidence according to
the criteria set out in section 113 of IRPA, the relevant portions which
read:
|
Immigration
and Refugee Protection Act
( 2001, c. 27
)
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;
…
(c) in the
case of an applicant not described in subsection 112(3), consideration shall
be on the basis of sections 96 to 98;
…
[My emphasis.]
|
|
Loi
sur l'immigration et la protection des réfugiés ( 2001, ch. 27 )
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;
…
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
…
[Je souligne.]
|
[9]
The
Officer excluded some documents and admitted several others. No challenge was
taken by counsel for the Applicant on the Officer’s determinations in this
respect.
[10]
The
following new evidence was crucial to Officer Houle’s findings.
(1) The Wadata Foundation letter
[11]
A
letter from Samuel Doudu undated, received in April 2007 (Exhibit P-9). Mr.
Doudu is the Program Coordinator at the Wadata Foundation for Female Welfare
and Development in Ghana (the Wadata Foundation). It is based in Accra with a
branch in Tamale in the northern region of that country. A second letter from
the Foundation indicated the undated letter had been signed on January 10, 2007
(Exhibit P-12).
[12]
The
letter from the Wadata Foundation is addressed “To whom it may concern” with
the first paragraph reading:
“We are writing this letter to support
Ms. Adama’s claim of fear of harm if she were to be returned to Ghana …” We
would like to state that our sources from 2005 till 2006 research corroborate
with the facts that, force [sic] marriages and FGM are still practice [sic]
by those who follow the customary laws in Ghana especially those in the upper
east, upper west northern and some parts of the Brong Ahafo regions of Ghana.
[13]
In
summary form the letter made these points: (1) the Tchambas, the Kotokoli and
other tribes follow customary practices and usually marry off their young girls
(as young as 13) to elderly men; (2) polygamy is prevalent amongst these
tribes, as is “bride price”; (3) there are laws against FGM in Ghana but “they
are negligible and mostly un-enforceable because of the over-riding strength of
tribal customs” who are well-established and centuries old; (4) Wadata is aware
of several cases of women running away from arranged marriages and FGM but
eventually “these girls are almost certain to go back home since there are no
save [sic] havens or sanctuaries to accommodate them”; (5) because the
system rarely creates opportunities for girls “they are most certain to either
dependant [sic] on their parents or marry early and be
provided for by their husbands”; (6) the government lacks the resources to
provide protection for women (lack of shelters); (7) the Applicant would not be
protected if returned. In particular, Wadata says the police could not protect
her because “they are not only influenced by customs than by laws but also
because most police men in the communities where these violations are practiced
are local people and strongly believe in their tradition and norms of the
community …”; (8) “our research also found that there are no official records
of convictions of anyone practicing FGM despite the laws prohibiting them …”; and,
(9) Wadata offered the view that if sent back to Ghana by Canada, she would be
returned to the northern part of Ghana since “she has broken one of the
customary tenets of the tribe and the community”.
(2) The three affidavits
[14]
Three
affidavits, duly sworn, were tendered by the Applicant’s counsel and described
by the Officer as: (1) one from a friend in Canada, Ms. Aisha Mina Mohamed, dated
April 3, 2007 (Exhibit P-7); (2) an affidavit from a cousin in Ghana, Ms.
Fauziya, dated February 6, 2007 (Exhibit P-11); and, (3) an affidavit
from her brother in Ghana, Mr. Masawudu Tahiru, dated February 13, 2007
(Exhibit P-10), noting that a second letter from her brother, dated May 15,
2007, had been submitted “which explains various discrepancies regarding the
dates of his first affidavit” (Exhibit P-14). The two last affidavits are
headed: “Affidavit in support of Ms. Adama’s decision to stay in Canada” or
“Affidavit in support of Ms. Adama’s decision not to return to Ghana”.
[15]
The
thrust of Ms. Mohamed’s affidavit, who was born in Accra and came to this
country as a landed immigrant, is to the following effect: (1) her mother is
from the Kotokoli tribe and her father is from the Chamba tribe; (2) her first
language is Kotokoli because she was raised by her mother but says she is from
the Chamba tribe which is her father’s tribe; (3) she believes the Applicant’s
story about her family and her tribe “which is like mine”; (4) she was
circumcised in Ghana; (5) she asserts the Applicant speaks Kotokoli and Chamba;
(6) she believes if the Applicant is returned to Ghana, she will be forced to
marry and will be circumcised; and, (7) she believes the Applicant is from the
Kotokoli tribe because she speaks the language and has a good accent.
[16]
Ms.
Fauziya is 19 years old, a resident of Accra and from the Chamba tribe: (1) she
was circumcised at the age of 17 on November 2004 since “in my tribe a woman
cannot marry until she has been circumcised”; her two sisters have been
circumcised in the summer of 2005 and she knows seven girls from her village
who have undergone the circumcision ritual in November 2006; (2) her cousin Zuweratu
(Adama’s sister) was recently found in hiding after being on the run for almost
ten years; she was brought back to Bawku. The man who paid for her hand “still
persists he wants the ritual to go on”. Zuweratu was circumcised on December
1, 2006; (3) if the Applicant is forced to return to Ghana, she will have
no place to go but to her family because no one will accept her since “everyone
now knows that she ran away from an arranged marriage”; (4) if she returns, her
family will force her to marry the man who paid for her hand (Iman Nasuru); (5)
she spoke to her aunt – the Applicant’s mother as recently as in early
January 2007; her aunt told her she would do anything to make sure the
wedding takes place; (6) she went to school in Accra with the Applicant; (7)
her family sent her to the north, her ancestral home, to her husband who had
paid for her hand when she was five years old; her husband insisted she be
circumcised; (8) she knows the Applicant’s story because she is from the same
family and tribe; and, (9) the Applicant will not obtain protection from the
police; she gave an example.
[17]
The
Applicant’s brother’s affidavit, who lives in Accra, states: (1) her mother is
from the Chamba tribe while her father was from the Kotokoli tribe; (2) her
parents are migrant workers from the upper region of Ghana; (3) “my
parents now reside in Accra but still have strong ties to the north.
Both our parents’ family still lives in the upper region”; (4) he attends a
local Arabic and Islamic school in Bawku; (5) his sister Zuweratu, who has been
in hiding since 1997, was tracked down in November 2006, was recently sent back
to the north and was circumcised; (6) Hajj Nasuru (the man who paid for the
Applicant’s hand) is “a powerful man in our village”; (7) Hajj Nasuru was
paying for his (the brother’s) education but now has stopped; (8) he knows of
at least six other girls (between the ages of 8 and 17) who were circumcised in
2005 and 2006; and, (9) he gave another recent example – a week ago – of her
sister’s friend – age 17 – who experienced the fate the Applicant fears.
[18]
The
Officer also referred to the submissions, made on her behalf by her counsel, on
the impact of this new evidence. Her counsel submitted the RPD doubted she was
of the Chamba or Kokotoli tribes and did not believe her parents
practiced traditional customs which is why her refugee claim was rejected. He
argued before the Officer the new evidence shows the Applicant is from those
tribes and that crucially the threats against her are credible. Counsel stated
the other major concerns of the RPD were: (1) where her parents were born and
states the new evidence supports her testimony before the RPD; and, (2) the
whereabouts of her sister who has been recently circumcised as attested in the
new evidence. Her counsel also submitted state protection was not effective and
the Applicant’s life would be at risk in all parts of Ghana.
[19]
The
Officer first summarized the January 10, 2007 letter from the Wadata
Foundation. She described accurately, in the Court’s view, the contents of that
letter in detail and explained her conclusions on it which were:
Overall, the letter from Mr. Samuel
Ampofo Doudu presents general conditions in Ghana which may affect the Applicant. The author presents
information as to what may happen to the Applicant if she returns, but he
does not sufficiently demonstrate that she is personally at risk. I am
not satisfied that the author of the letter has personal or first-hand
knowledge of the Applicant’s situation as he does not provide details of her
particular case, nor does he mention how he has come to be involved in her
situation. Additionally, based on the content of the two letters and the
dates they were produced, I conclude that they were created specifically
for the purposes of the Applicant’s PPRA and H&C applications. In
consideration of all of these points, I find Documents P-9 and P-12 to be
self-serving evidence and grant them little probative value. [My emphasis.]
[20]
The
Officer then turned to the three affidavits about which she wrote:
The three documents provide support for
the Applicant’s allegations. They confirm the Applicant’s story that she is at risk
of FGM and forced marriage if she returns. The Applicant’s cousin in Ghana
(Ms. Fauziya) and her brother state that the Applicant’s sister Zuweratu,
who had been missing for the last ten years, has recently been found and been
subjected to FGM and forced marriage. The affidavits support the
Applicant’s claims that she is a member of the Chamba / Kokotoli tribes and that
she will be subject to FGM and forced marriage if she returns. [My
emphasis.]
[21]
She
said Ms. Aisha Mohamed’s letter was based on information the Applicant told her.
The Officer notes Ms. Mohamed believes the Applicant but found she did not have
personal knowledge of the events which occurred to the Applicant and “as such
it is hearsay”.
[22]
In
terms of the Applicant’s brother’s affidavit, the Officer observed he states
his sister is at risk because she has been disobedient of the family’s wishes,
a view which is corroborated by the Applicant’s cousin, Ms. Fauziya, who said
the Applicant would have no choice but to return to her family because: “No one
will accept her since everyone now knows that she is dawda or dirty, a name
given to girls who run away from arranged marriages.” The Officer added Ms.
Fauziya also stated that the police cannot protect the Applicant.
[23]
The
Officer expressed her view on the three affidavits evidence as follows:
In these three affidavits, the
authors each make a plea for the Applicant to be able to remain in Canada. Additionally, based on the
content of the documents and the dates they were produced, I conclude that
they were created specifically for the purposes of the Applicant’s PRRA and
H&C applications. In essence, these documents are simply
declarations from the Applicant’s friend, her cousin, and her brother and they
do not in and of themselves provide objective proof of the allegations. Given
that the authors all have some personal relationship with the Applicant,
whether friendship or familial, I conclude that they are not objective sources.
Given the timing of when the statements were written, the content, and the
sources, I conclude that these documents (Documents P-6, P-9/10 and P-13) are
self-serving evidence and grant them little probative value. [My
emphasis.]
[24]
The
Officer then went on to consider the current human rights and political
conditions in Ghana to
“determine if the Applicant’s alleged risks are supported by objective
evidence”. She noted women and female children in Ghana are at risk
of human rights violations including violence against them, rape, domestic
abuse, trafficking and sexual harassment.
[25]
Specifically,
she considered the practice of FGM in Ghana, quoting from the most
current US DOS report, which confirmed that FGM “remains a serious problem in
the three northern regions of the country”. The Officer said FGM was more
commonly practiced on teenage girls but also on girls preparing for marriage.
The Officer stated there have been few prosecutions against people responsible
for FGM in 2004.
[26]
The
Officer also considered the issue of forced marriage, which she summarized as
being again a problem in the northern regions of Ghana. She concluded:
It has been demonstrated that FGM, the
associated complications, and forced marriage can be found in Ghana. The question at hand, therefore, is
whether the Applicant will be at risk if she returns to Ghana.
[27]
She
determined the evidence before her led to the conclusion the Applicant and her
parents did not have a strong connection with the northern regions of Ghana and to the
northern Chamba and Kokotoli tribes. She found the Applicant was raised and
educated in Accra and was not
a young 18 year old teenager or younger who was at risk. She determined, from
her personal profile, she was not satisfied that the Applicant is at risk of
FGM and forced marriage.
[28]
Moreover,
her conclusion on state protection was expressed as follows:
Considering that the state and all levels
of government are actively attempting to discourage the practices, and
considering that laws exist in Ghana against both FGM and forced
marriage, I also conclude that State protection is available to the Applicant
for both FGM and forced marriage.
Analysis
The Standard
of Review
[29]
In
my view, the jurisprudence satisfactorily establishes the following standards
of review:
(1) On a review
of a PRRA Officer’s decision, for questions of law - correctness; for
questions of
fact since the Dunsmuir reform – reasonableness and for mixed questions
of fact and law – reasonableness (see Justice Mosley’s decision in Raza v. Canada (Minister of Citizenship
and Immigration), cited
as 2006 FC 1385, endorsed by the Federal Court of Appeal in Raza, at
paragraph 3 and also Justice de Montigny’s decision in Elezi v. Canada (Minister
of Citizenship and Immigration), 2007 FC 240). On the issue of state
protection, the standard of review is reasonableness (see Hinzman et al v.
the Minister of Citizenship and Immigration, 2007 FCA 171, at paragraph
38).
(2) For a review of an
Officer’s H&C decision, the Supreme Court of Canada’s most
recent decision in Khosa
points to a reasonableness standard, as had its previous decision in Baker
v. Canada (Minister of
Citizenship and Immigration), [1999]
2 S.C.R. 817. Khosa focused on whether section 18.1(4)(d) of the Federal
Courts Act, dealing with a review of decision based on findings of fact,
incorporated a legislated standard of review. The Court found it did not
because the section in the Federal Courts Act only spelled out grounds
of review. However, the majority of the Court went on to hold this paragraph
“does provide legislative guidance as to the degree of deference owed to the
IAD’s findings of fact” (see paragraph 3). Justice Binnie, on behalf of the
majority, explained what this meant at paragraph 46:
46 More
generally, it is clear from s. 18.1(4)(d) that Parliament intended
administrative fact finding to command a high degree of deference. This is
quite consistent with Dunsmuir. It provides legislative precision to
the reasonableness standard of review of factual issues in cases falling under
the Federal Courts Act. [My emphasis.]
The teachings in Raza
[30]
In
Raza, Justice Sharlow, for the Federal Court of Appeal, found the
purpose of section 112 of IRPA to be:
10 The purpose of section 112 of the IRPA
is not disputed. It is explained as follows in the Regulatory Impact Analysis
Statement, Canada Gazette, Part II, Vol. 136, Extra (June 14, 2002), at page
274:
The
policy basis for assessing risk prior to removal is found in Canada's domestic and international commitments to the principle
of non-refoulement. This principle holds that persons should not be removed
from Canada to a country where they would be at risk
of persecution, torture, risk to life or risk of cruel and unusual treatment or
punishment. Such commitments require that risk be reviewed prior to removal.
…
La justification, au niveau des
politiques, de l'examen des risques avant renvoi se trouve dans les engagements
nationaux et internationaux du Canada en faveur du principe de nonrefoulement.
En vertu de ce principe, les demandeurs ne peuvent être renvoyés du Canada dans
un pays où ils risqueraient d'être persécutés, torturés, tués ou soumis à des
traitements ou peines cruels ou inusités. Ces engagements exigent que les
risques soient examinés avant le renvoi.
[31]
At
paragraph 12, she wrote:
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:
[My
emphasis.]
…
[32]
She
expanded her consideration of the matter at paragraphs 13 to 17 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.
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).
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.
16 One of the arguments considered by
Justice Mosley in this case is whether a document that came into existence
after the RPD hearing is, for that reason alone, "new evidence". He
concluded that the newness of documentary evidence cannot be tested solely by
the date on which the document was created. I agree. What is important is the
event or circumstance sought to be proved by the documentary evidence.
17 Counsel for Mr. Raza and his family
argued that the evidence sought to be presented in support of a PRRA
application cannot be rejected solely on the basis that it "addresses the
same risk issue" considered by the RPD. I agree. 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. [My emphasis.]
[33]
Justice
Sharlow concluded as follows:
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. [My emphasis.]
The findings in Thanabalasingham
[34]
In
Thanabalasingham, Justice Evans identified the relevant considerations to the exercise of a judge’s discretion when faced with a motion to dismiss
a judicial review application on account of an Applicant’s misconduct. He wrote
the following at paragraphs 10 and 11:
10 In
exercising its discretion, the Court should attempt to strike a balance
between, on the one hand, maintaining the integrity of and preventing the abuse
of judicial and administrative processes, and, on the other, the public
interest in ensuring the lawful conduct of government and the protection of
fundamental human rights. The factors to be taken into account in this exercise
include: the seriousness of the applicant's misconduct and the extent to which
it undermines the proceeding in question, the need to deter others from similar
conduct, the nature of the alleged administrative unlawfulness and the apparent
strength of the case, the importance of the individual rights affected and the
likely impact upon the applicant if the administrative action impugned is
allowed to stand.
11 These
factors are not intended to be exhaustive, nor are all necessarily relevant in
every case. While this discretion must be exercised on a judicial basis, an
appellate court should not lightly interfere with a judge's exercise of the
broad discretion afforded by public law proceedings and remedies. Nonetheless,
I have concluded in this case that the Judge erred in the exercise of his
discretion by failing to take account of the remedy provided to Mr.
Thanabalasingham by his right to appeal to the IAD against his removal and the
relevance of that appeal to an assessment of the consequences if the Minister's
opinion stands. [My emphasis.]
[35]
Justice
Evans answered the certified question by saying “that a
consideration of the consequences of not determining the merits of an
application for judicial review is within the Judge's overall discretion with
respect to the hearing of the application and the grant of relief.”
[36]
In
terms of remedy under IRPA, it is useful to recall what Justice Sharlow
said at paragraphs 7 and 8 of Raza:
7 Once the leave application was
dismissed, there was no procedure available to Mr. Raza and his family to
challenge the decision of the RPD to reject their claim for refugee protection
on the basis of a finding of adequate state protection. There is no statutory
right of appeal. Subsection 55(1) of the Refugee Protection Division Rules
(SOR/2002-228) provides for a refugee protection claim to be reopened after it
has been decided, but the Federal Court has held that this applies only if the
application to reopen is based on an allegation that there was a failure to
observe a principle of natural justice (see, for example, Ali v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1394, 2004 FC
1153, Lakhani v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 768, 2006 FC 612).
8 After the RPD rejected the claim of
Mr. Raza and his family for refugee protection, they became the subjects of a
removal order. Prior to their removal date, they made a PRRA application under
subsection 112(1) of the IRPA, as they were entitled to do. The removal
order was stayed pending the determination of the PRRA application (section 232
of the Immigration Regulations, SOR/2002-227).
The holdings in Baron
[37]
Recently,
the Federal Court of Appeal, in Baron v. Canada (Minister of Public Safety
and Emergency Preparedness), 2009 FCA 81 (March 13, 2009), touched upon the
misconduct of Applicants not showing up at the airport for the family’s
removal to Argentina which required the Canada Border Services Agency to issue
a warrant. In their case, the arrest warrant was successfully executed. Justice
Nadon wrote the following at pages 63 to 65 of his reasons:
63 It is important to note that in
concluding that a deferral was not warranted in the circumstances before her,
the enforcement officer emphasized the fact that the appellants had failed to
report for their pre-removal interviews of January 21, 2006. The
enforcement officer also emphasized the fact that it had been necessary to
issue warrants against the appellants, which were executed in March and July of
2006. She could also have emphasized the fact that the appellants, in order to
delay their removal scheduled for January 18, 2007, had undertaken to leave the
country with their children on February 15, 2007, which undertaking they failed
to respect. The enforcement officer could have also considered relevant the
fact that the departure orders made against the appellants at the time they
filed their refugee claims had become effective on May 30, 2002.
64 Events
of this type, i.e. where persons fail to comply with the requirements of the
Act or act in a way so as to prevent the enforcement thereof, should always be
high on the list of relevant factors considered by an enforcement officer. It
is worth repeating what this Court said at paragraph 19 of its Reasons in Legault,
supra. Although the issue before the Court in Legault, supra,
pertained to the exercise of discretion in the context of an H&C
application, the words of Décary J.A. are entirely apposite to the exercise of
discretion by an enforcement officer:
[19]
In short, the Immigration Act and the Canadian immigration policy are
founded on the idea that whoever comes to Canada with the intention of settling
must be of good faith and comply to the letter with the requirements both in
form and substance of the Act. Whoever enters Canada
illegally contributes to falsifying the immigration plan and policy and gives
himself priority over those who do respect the requirements of the Act. The
Minister, who is responsible for the application of the policy and the Act,
is definitely authorized to refuse the exception requested by a person who
has established the existence of humanitarian and compassionate grounds, if he
believes, for example, that the circumstances surrounding his entry and stay in
Canada discredit him or create a precedent susceptible of encouraging illegal
entry in Canada. In this sense, the Minister is at liberty to take into
consideration the fact that the humanitarian and compassionate grounds that a
person claims are the result of his own actions.
[Emphasis
added]
65 Thus, if the conduct of
the person seeking a deferral of his or her removal either discredits him or
creates a precedent which encourages others to act in a similar way, it is
entirely open to the enforcement officer to take those facts into consideration
in determining whether deferral ought to be granted. Neither enforcement
officers nor the courts, for that matter, should encourage or reward persons
who do not have "clean hands". [My emphasis.]
The Applicant’s case
[38]
Counsel
for the Applicant raised the following arguments which, as mentioned before,
focus on the Officer’s treatment of the new evidence and in particular the
affidavits.
[39]
First,
he submitted the Officer erred in the characterization of the new evidence as
self-serving, interested, not objective or specifically created for the
applications and that its rejection is untenable particularly in the context of
Raza where the new evidence can be used to contradict the findings of
the RPD which is the case here. According to him, the new evidence establishes
the link between the Applicant and the family’s tribe in northern Ghana. The
significance of the link is corroborated by the Wadata letter: (1) FGM is
practiced by her parents’ tribes; (2) the ban against FGM is not enforced in
the north; (3) tribes track those who run away; and, (4) the Applicant cannot obtain
protection because she violated customary law.
[40]
Second,
the reasons for rejecting the Wadata letter are unreasonable. Wadata had first
hand knowledge of the situation in the north because it was based on its own
research. The Officer found the new evidence was created specifically for the
H&C and the PRRA applications is a crucial error. To hold that an Applicant
cannot develop evidence and submit it for the purpose of proving one’s claim is
at the heart of the refugee process; it is necessarily “interested” evidence
because it comes from the Applicant or those who know her circumstances. How do
you prove personalized risk, he asks? Alternatively, he argues the reasons
advanced are inadequate and/or misconceived in the refugee context. Counsel for
the Applicant relies upon the following cases:
1)
Cardenas v. Canada (Minister of Citizenship and
Immigration), [1998]
F.C.J. No.
242;
2)
Coitinho v. Canada (Minister of Citizenship and Immigration), 2004 FC 1037, at
paragraphs 7 and 8;
3)
Bakcheev
v. Canada (Minister of
Citizenship and Immigration), 2003
FCT 202;
4)
Perea
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 432; and,
5)
Barahona
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1270.
[41]
Third,
he argues the Officer erred on the issue of state protection: state protection
must be effective; the documentary evidence and the new evidence establish that
it was not effective. He relies on Gerson
Alejandr Perez Burgos et al v. the Minister of Citizenship and Immigration, 2006 FC 1537.
[42]
Fourth, he argued the
Officer erred in her analysis of undue hardship in the H&C context. He
urged upon me the fact that the Applicant had submitted evidence that women in
general in Ghana face hardship: they are second class
citizens and their life in that country is extremely difficult.
Conclusions
[43]
The
conclusions I reach in this case result from my exercise of the discretionary
power identified in Thanabalasingham and the factors which Justice Evans set out in that case amplified by
what Justice Nadon said in Baron. In this case, a balance must be struck
between maintaining the integrity of the immigration process and the purpose of
provisions in IRPA which mandate, according protection or alleviating hardship
in specified circumstances. In my view, the two most important factors at play
in this case are: (1) the seriousness of her misconduct and the extent it
undermines the processes established by Parliament in IRPA; and, (2) the need to
deter others from similar conduct balanced with the strength of the Applicant’s
case and the importance of the Applicant’s right to be free from threat of a
forced marriage and FGM.
[44]
There
can be no question the failure of the Applicant to report for her removal after
the Chief Justice of this Court refused her stay application against removal is
very serious as it shows disregard for a decision of this Court and undermines
the administrative process prevalent for voluntary reporting for removal for
otherwise all persons scheduled for removal would have to be detained prior to
removal. The need to deter such conduct is essential. The application of these
factors favours the remedy sought by the Minister’s counsel, namely outright
dismissal of the applications without consideration on the merits. However,
these factors of serious breach and need for deterrence must be balanced
against the strength of her case and the impact on the Applicant, depending on
the strength of her case, if her applications are dismissed without further
review by this Court. Because of the nature of her fear – forced marriage and
FGM – I have considered the merits of her case. For the reasons that follow, I
consider that the applications before me have no substantial strength.
[45]
Having
said this, I agree with counsel for the Applicant that, under Raza,
provided the evidence tendered in the PRRA process qualifies as new evidence,
such evidence may establish facts which contradict the findings of the RPD. I
also agree with him that it would be unfair to give little or no weight to
admissible PRRA new evidence simply by its being labelled as self serving,
interested or the purpose for which such evidence was created or tendered. The
jurisprudence establishes more is needed.
[46]
In
this respect, I found very useful the analysis and the cases referred to in a
document on self-serving evidence published by the Immigration and
Refugee Board.
[47]
That
document refers to many cases where this Court upheld tribunal findings that
little weight be given to self serving evidence crafted to influence the
outcome of the claim. (See for example:
(1)
Huang v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 901,
at paragraphs 10 and 11;
(2)
Rana v. Canada (Minister of Citizenship and
Immigration), [2000]
F.C.J. No. 1389, at
paragraph 13;
(3)
Villalba v. Canada (Minister of Citizenship and
Immigration), [1994]
F.C.J. No.
1552, at paragraph 3;
(4)
Ali v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J.
No. 1155, at
paragraph 5;
(5)
Grozdev v. Canada (Minister of Citizenship and
Immigration), [1996]
F.C.J. No. 983,
at paragraph 6;
(6)
Hussain v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No.
480;
(7) Ghazvini v. Canada (Minister of Citizenship and
Immigration), [1994]
F.C.J. No. 1550, at paragraphs 8 and 9; and,
(8) Waheed v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 466.)
[48]
These
cases are to the effect cogent reasons must be provided for discounting or
giving little or no weight to tendered evidence, such conclusion must be
reasonable and made taking account all of the evidence before the decision
maker. In this respect, Justice MacKay’s reasons in Huang, above are on
point.
[49]
In
the present case, the purpose of the new evidence was to establish the link
between the Applicant and her parents’ tribes in the Northern part of Ghana and this to
overcome the findings of the RPD who did not believe her story. Specifically,
the RPD did not believe her parents were from the north and that her sister Zuweratu
had gone into hiding.
[50]
The
Officer concluded on a review of all of the evidence before her, the new
evidence did not support a strong connection between the Applicant, her parents
and the northern tribes. Considering all of the evidence before her, including
the documentary evidence on where and who was likely to be threatened by a
forced marriage and FGM, against her personal profile, she concluded no PRRA
risks and no undue hardship upon return.
[51]
As
previously mentioned, the new evidence in this case must establish the
Applicant’s linkage to her parents’ northern tribes. That new evidence must
blunt, so to speak, the evidence before the RPD. Officer Houle specifically
referred to the written answer the Applicant included in her H&C
application dated January 20, 2008 that her parents were born in Accra (Certified
Tribunal Record, page 196) and when filled her application for the Canadian
visa in 2003, she indicated her sister Zuweratu was living in Accra.
[52]
In
the circumstances, these two fundamental facts contradicted the new evidence contained
in the three affidavits and were more consistent with the RPD’s findings.
Moreover, in terms of the Wadata letter, based on the evidence before her, the
Officer determined that the letter did not provide any evidence of the
Applicant and her parents’ link to the north. In short, the Wadata letter
assumed a northern connection. This finding was reasonably open to the Officer
on the evidence before her.
[53]
I
conclude, based on the totality of the evidence before the Officer, in the
light of her findings and taking into account Justice Binnie’s comment in Khosa, at paragraph 46, the
Officer did not err in giving little or no weight to the new evidence and that
her overall finding of no risk was reasonable.
[54]
The
RPD made a finding on the availability of state protection in Ghana. The
Applicant did not approach the authorities for protection. The availability of
state protection must be based on the particular facts of a particular case (see
Arellano v. Minister of
Citizenship and Immigration,
2006 FC 1265). I note the Officer’s finding on protection. I further note the rulings
of this Court on the availability of state protection in Ghana on account of a
threat of FGM (see Salifu v. Canada (Minister of Citizenship and
Immigration), 2008 FC 14
and Kwayisi v. the Minister of Citizenship and Immigration, 2005 FC 533).
Even if there had been a threat to the Applicant of a forced marriage and FGM,
it would have been objectively unreasonable for the Applicant who lives in Accra not to have sought the protection of her home authorities (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 724 – 725). This
was the Chief Justice’s reasoning when in dismissing the stay he found no irreparable
harm to the Applicant if returned to Accra.
[55]
Exercising the
discretion I have, under the Thanabalasingham case, balancing the factors identified by Justice Evans and having
concluded no substantial merit to the Applicant’s fear, I
would
dismiss both applications.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the judicial reviews sought by the
Applicant in IMM-2098-08 and in IMM-2099-08 are each dismissed. No certified
question arises. A copy of these reasons for judgment and judgment are to be placed
in each Court file.
“François
Lemieux”
____________________________
Judge
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