Date: 20090909
Docket: IMM-384-09
Citation: 2009 FC 892
Vancouver, British Columbia, September 9,
2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
I.I.
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of an
immigration officer (PRRA officer), dated December 15, 2008, refusing I.I.’s
(the Applicant) pre-removal risk assessment (PRRA) application.
Factual Background
[2]
The
Applicant is a citizen of Nigeria who entered Canada as a visitor
in November 2004. His visitor visa expired in January 2005.
[3]
In
January 2005, the Applicant married a woman. His wife then submitted a family
class sponsorship in support of his application for permanent residence. That
application was refused in January 2006 on the ground that the marriage was not
genuine.
[4]
In
February 2006, the Applicant entered into a common-law relationship with a
different woman. A second sponsorship application was submitted in April 2006.
That application was rejected as the Applicant had not met the required cohabitation
time. The Applicant then married his common-law partner in October 2006 and a
third sponsorship application was submitted.
[5]
In
April 2007, the Applicant attended a Minister’s delegate review. Following that
interview, an exclusion order was issued against him as he had failed to leave Canada at the end
of his authorized stay.
[6]
The
Applicant submitted a PRRA application in June 2007. In the PRRA application,
the Applicant claimed to be at risk if returned to Nigeria because of
his sexual orientation. In support of his claim, the Applicant submitted a
sworn statement relating homosexual relations that he had before his leaving Nigeria.
[7]
In
January 2008, during an interview by an immigration officer, the Applicant
admitted that he had been living separately from his second wife since June of
the previous year. Accordingly, the sponsorship application was rejected and
the file was transferred to PRRA as a request had already been made.
[8]
On
December 15, 2008, the Applicant received the negative PRRA decision and reasons
in a personal interview with a removal officer.
Impugned Decision
[9]
The
PRRA officer found that there was credible evidence showing that homosexuals
face a reasonable chance of persecution in Nigeria. The
evidence consulted included reports confirming that homosexuality is vilified
in Nigeria and that
homosexuals face harassment, arrest and arbitrary detention by the authorities.
Those who are detained are subject to harsh punishment and lengthy sentences.
He accepted that in addition to this, there is a federally proposed bill that
would outlaw homosexual associations and advocacy and any public or private
expression of homosexuality. He also accepted that homosexuals are also
victims of violence by non-state actors.
[10]
The
PRRA officer then found that there was insufficient objective evidence that the
Applicant is homosexual. He noted that in the Applicant’s statement, the Applicant
alleges that his life as a homosexual began in high school and gives
detailed accounts of his homosexual encounters and the violence he faced as a
result of being discovered. He then noted that the sworn statement is
uncorroborated by another other objective evidence other than evidence of the Applicant’s
participation in the National Youth Service Corps where he states that he had
one of his homosexual relationships.
[11]
The
PRRA officer noted that the Applicant did not make a refugee claim at any time
during his stay in Canada and it was only during the PRRA process that he
advised that he feared returning to Nigeria due to his sexual
orientation. The PRRA officer detailed the Applicant’s relationship history
while in Canada along with
his various immigration applications. He also reproduced a portion of a
transcript of the Applicant’s April 2007 review interview where the Applicant
says he cannot return to Nigeria because his wife is in Canada and he wants
to work and support his wife and have a baby.
[12]
The
PRRA officer accepted that neither of the Applicant’s marriages was successful
but that there was no evidence that the Applicant’s stated sexual
orientation was a factor in these break-ups. The Applicant did not make any
suggestion that this was the case nor did he mention his opposite-sex
relationships in his PRRA.
[13]
The
PRRA officer concluded that in light of the Applicant’s failure to make a
refugee claim, his two marriages to women and the statements made at the April
2007 interview there was insufficient evidence to lead to the conclusion that,
on the balance of probabilities, the Applicant is homosexual.
Issue
[14]
The
question at issue is as follows:
a.
Was
the PRRA officer’s assessment of the evidence unreasonable?
Relevant Legislation
[15]
Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
|
113.
Consideration of an application for protection shall be as follows:
…
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
|
Il est
disposé de la demande comme il suit :
…
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des facteurs
réglementaires;
|
[16]
Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Immigration
Regulations).
|
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.
|
Analysis
Was the PRRA officer’s
assessment of the evidence unreasonable?
[17]
The
PRRA officer’s evaluation of the evidence is a finding of facts to which deference
is owed and should only be set aside if it “falls outside of the range of
possible acceptable outcomes which are defensible in respect of the facts and
the law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at paragraph 47, Parchment v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1140, [2008] F.C.J. No. 1423 (QL)
(Parchment)).
[18]
The
Applicant argues that the PRRA officer’s evaluation of the evidence was
unreasonable because an individual cannot provide objective evidence of his
sexual orientation. In advancing this argument, the Applicant seems to be
holding that the personal statement was sufficient evidence to prove on the
balance of probabilities that the Applicant is homosexual.
[19]
Two
recent cases of this Court, Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, 74 IMM. L.R. (3d) 306,
[2008] F.C.J. No 1308 (QL) and Parchment above, have dealt with similar
issues and are heavily relied upon by the Respondents. Both of those cases
dealt with a woman who had made a claim that she could not be returned based on
sexual orientation. In both, she provided an unsupported statement that she was
lesbian in support of her claim.
[20]
Evidence
tendered by a witness with a personal interest in the case can be evaluated
based on the weight that it will be given and typically will require
corroborative evidence to have probative value (Ferguson at paragraph
27). It is open to the PRRA officer to require such corroborative evidence to
satisfy the legal burden; particularly when the fact is one that is central to the
application (Ferguson at paragraph 32). In Ferguson, it is
suggested that such corroborative evidence could include a sworn statement by a
partner and evidence of public statements (at paragraph 32). One must
remember that evidence must have sufficient probative value. It will have sufficient
probative value when “it convinces the trier of fact” (Carillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636 at paragraph
30). Furthermore, the officer had to consider all of the other factors in the
case in making the determination (Parchment at paragraph 28).
[21]
The
statement in this case was sworn, unlike those in Parchment and Ferguson, which does
give it more weight. However, no other evidence was provided by the Applicant.
It is obvious, in reading the reasons, that the PRRA officer was not convinced
by the evidence presented that the Applicant is homosexual. The PRRA officer had
to consider the other factors in the case including the Applicant’s immigration
history, his relationships while in Canada and the previous
statements made in immigration interviews.
[22]
Counsel
for the Applicant also reproaches the PRRA officer for not having explained the
sort of objective evidence expected or given the Applicant the opportunity to
explain its absence. I disagree. In a PRRA application it is the applicant
who bears the burden of proof (Ferguson at paragraph 21). Thus the
onus was on the Applicant to tender evidence to prove, on a balance of
probabilities that he would be subject to risk of persecution, danger of
torture, risk to life or risk of cruel and unusual treatment or punishment if
returned to Nigeria. The PRRA
officer’s role is to evaluate and weigh the evidence before him and make a
reasonable finding not to set out, for the Applicant, what evidentiary elements
he should provide in order to meet his burden.
[23]
The
PRRA officer considered and weighed all of the evidence before him. The Applicant
does not say that an oral hearing should have been held here but it would have
been appropriate for the PRRA officer to give to the Applicant an opportunity
to respond to the officer's concerns.
[24]
The
Court is of the opinion that the determinative issue in the case at bar was the
probative value of the evidence and not credibility. It was also open for the
officer to take into account the Applicant’s immigration history and
heterosexual relationships in Canada in determining if the Applicant had discharged
his burden towards his claim of homosexuality.
[25]
The
PPRA officer’s evaluation of the evidence was not unreasonable and falls within
the range of possible, acceptable outcomes.
[26]
No
questions for certification were proposed and none arise in this case.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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