Date: 20110318
Docket: IMM-4152-10
Citation: 2011 FC 336
Ottawa, Ontario, March 18, 2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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JEAN LEONARD TEGANYA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) of a decision dated May
31, 2010, by the Pre-Removal Risk Assessment Officer of Citizenship and
Immigration Canada (the Officer). The Officer rejected the applicant’s PRRA
application as it was found that the applicant was not a person in need of
protection.
Factual Background
[2]
The
applicant, Jean Leonard Teganya, is a citizen of Rwanda. He
originally left Rwanda in July 1994 for Zaire (Congo), where he
stayed in a refugee camp. He then went to Kenya and to India. On November
17, 1999, he left India to come to Canada.
[3]
Upon
his arrival in Canada, the applicant submitted a refugee claim. His
claim was heard in 2002. The Refugee Protection Division of the Immigration and
Refugee Board (the RPD) concluded that he was excluded of the Convention under
sections 1F(a) and 1F(c). The RPD found that he worked as a
medical intern in a hospital where a number of atrocities occurred. Despite his
awareness of the atrocities, the applicant remained at the hospital. The RPD
found that he was complicit in crimes against humanity. This decision was dismissed
on judicial review. On reconsideration in 2005, the RPD again found that he was
an excluded person under sections 1(F)(a) and 1F(c). The
applicant sought judicial review of this decision but was unsuccessful.
[4]
On
July 19, 2006, Citizenship and Immigration Canada submitted a report indicating
that the applicant was inadmissible under s. 35(1)(a) of the Act. The
applicant then submitted a PRRA application in September 2008. He claimed that
he was at risk because he could be imprisoned and be subjected to cruel
treatment.
[5]
The
applicant alleges that his father was a leader in the former regime, the Mouvement
révolutionnaire national pour le développement (MRND). His father was
imprisoned for 11 years without charge because he was suspected to have been
involved in the genocide. The applicant claims that he will suffer the same
fate as his father. He also claims that he will be at risk because he is an
ethnic Hutu and because he is from the northern region of Rwanda.
[6]
The
Officer considered the applicant’s PRRA submissions. On May 31, 2010, the
Officer concluded that the applicant’s PRRA application should be rejected. The
applicant seeks judicial review of this decision.
Impugned Decision
[7]
From
the outset, the Officer mentioned that since the applicant was inadmissible by
virtue of s. 35(1)(a) of the Act, the analysis would only be conducted
in relation to section 97.
[8]
The
Officer considered two country condition documents. The Officer assigned no
weight to the first document entitled “Rwanda, a nation
with a dark past and tenuous future”, because it was authored by a person whose
identity was being protected. As a result, there was no way to determine the
purpose and the origin of the document. The second document was a Human Rights
Watch report that mentioned problems with the judiciary and the courts. The
Officer acknowledged that: (i) there are problems with the Gacaca courts,
including corruption and undue influence; (ii) detainees have been abused
by security forces; (iii) there are arbitrary arrests; (iv) the conditions of
detention are difficult; and (v) people are held for long periods of time
without charge. However, the Officer concluded that this document, and other
similar documentation, did not lead to the conclusion that the applicant would
be at undue risk upon returning to Rwanda.
[9]
The
Officer mentioned that, while the applicant claimed that his father had been
detained for 11 years without charge, he has not provided evidence that the
applicant’s father had been imprisoned for that period of time or that the
process was unfair. The Officer further noted the insufficiency of evidence
related to a possible arrest upon returning to Rwanda because of
his relationship with his father. The Officer also found no evidence that the
applicant would be at risk because of his Hutu background.
[10]
Finally,
the Officer considered the United States Department of State (DOS) Report 2009,
which mentioned the efforts of the government to reconcile. The Officer
acknowledged that: (i) the rights of Rwandans are limited; (ii) violence
against the survivors of the genocide is persistent; (iii) prisoners are
detained under difficult conditions; (iv) security forces arrest and detain
persons arbitrarily; and (v) corruption is a problem. However, the Officer
concluded that these events are not connected to the personal situation of the
applicant, but to the general population. Thus, the Officer found that the
applicant had not demonstrated that his risk is different from any other
Rwandan, and, therefore the risk is not personalized.
Issues
[11]
This
application raises the following issues:
1.
Did the
Officer err in concluding that there was insufficient evidence to establish a
risk to the applicant?
2.
Did
the applicant suffer a breach of natural justice and procedural fairness due to
incompetent counsel?
3.
Did
the Officer breach the duty of fairness by failing to disclose his intention to
rely on changing circumstances in Rwanda and ask for updated information from the
applicant?
[12]
For
the following reasons, this application for judicial review will be dismissed.
Statutory Provisions
[13]
The
following provision of the Immigration and Refugee Protection Act is relevant
to this proceeding:
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Person in need of protection
97. (1)
A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of
that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations
as being in need of protection is also a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut
se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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Standard of Review
[14]
Since
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, issues relating
to a PRRA Officer’s treatment and consideration of the evidence on a PRRA
application are reviewable on a standard of reasonableness (Barzegaran v
Canada (Minister of Citizenship and Immigration), 2008 FC 681, [2008] FCJ
No 867; Kanaku v Canada (Minister of Citizenship and Immigration), 2009
FC 394, [2009] FCJ No 493). According to the Supreme Court of Canada, the
factors to be considered are justification, transparency and intelligibility
within the decision-making process. The outcome must be defensible in respect
of the facts and the law (Dunsmuir, supra, at para 47).
[15]
The applicant also raised issues of natural justice and procedural
fairness. It has long been held that the standard of review applicable to these
issues is correctness (Dunsmuir, supra, at para 129; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at
para 43).
Analysis
1.
Did
the Officer err in concluding that there was insufficient evidence to establish
a risk to the applicant?
[16]
The
applicant claims that the Officer in this case decided without regard to all of
the evidence before her. First, the applicant notes that the Officer had before
her, and relied upon, the decision of the RPD on the applicant’s refugee claim.
The RPD’s decision explicitly relied upon the fact that the applicant’s father
was the leader of the MRND.
[17]
The
applicant further contends that the finding that he was complicit in crimes
against humanity was highly publicized and the government of Rwanda would be
aware of this decision. Accordingly, the applicant submits that his profile is
one of a deportee from Canada who has been found complicit in crimes
against humanity and who is the son of - and therefore associated with - a
former leader of the MRND. The applicant asserts that his profile is specific
and his personal circumstances differ from other Rwandan deportee. He thus argues
that the Officer erred by failing to assess his claim on this basis.
[18]
Following
a review of the evidence, the Court remains unconvinced by the applicant’s
arguments. The Officer explicitly considered the fact that the applicant’s
father was a former leader of the MRND and did not question this finding of
fact. It was open to the Officer, however, to conclude that the applicant had
not established that he would be at risk because of his father’s involvement in
the party, particularly in light of the fact that he did not submit evidence
establishing that his father had experienced poor treatment as a result of his
position in the MRND. The applicant also failed to provide evidence with
respect to his father’s imprisonment. Moreover, the applicant’s “Soumissions
ERAR” (PRRA Submissions) (Certified Tribunal’s Record at page 190) clearly
indicates that he was not involved in the genocide. It is his father who is
suspected to have been part of the genocide :
2. Si je risque de subir ce traitement,
ce n’est pas parce que j’ai commis un crime quelconque au RWANDA.
C’est juste à cause de mon ethnie Hutu et
du dossier de mon père qui est emprisonné au Rwanda depuis plus de 10 ans, sans
inculpation ni jugement; juste pour les soupçons de son implication dans
le génocide rwandais.
[Emphasis added]
[19]
In
the Court’s view, there was insufficiency of evidence to advance the
applicant’s arguments. The Officer considered all the evidence submitted by the
applicant, and it was entirely reasonable for the Officer to conclude that the
applicant had not established a profile that was different from all other
Rwandans.
[20]
Also,
the applicant claims that the Officer erred in concluding that the applicant
had not demonstrated that he would be considered part of the opposition and that
he would be at risk because of his Hutu background. The applicant notes that
the RPD expressly relied on his close connection to his father in inferring
that he was complicit in crimes against humanity, and that this Court also
relied on this association in upholding the RPD’s decision (Teganya v Canada
(Minister of Citizenship and Immigration), 2006 FC 590, [2006] FCJ No.
778). The applicant submits that it is unreasonable for the Officer to draw
different inferences from the facts that formed the basis for his exclusion.
The applicant also asserts that it was unreasonable for the Officer to fail to
mention this evidence, since it was important evidence that squarely
contradicted his finding of fact (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425, 157 FTR 35).
[21]
Again,
the Court must disagree with the applicant. Contrary to the applicant’s
assertions, the Officer did not draw different inferences from the facts that
formed the basis for his exclusion. The RPD found that the applicant was
excluded because of his failure to leave and distance himself from the
atrocities being committed at the hospital where he worked. Regarding the
applicant’s father, the RPD only concluded that the applicant would have been
familiar with the political viewpoints of the MRND because of his father’s role
in the party. The Officer, when considering the applicant’s PRRA submissions,
did not explicitly disagree that the applicant’s father had been a leader of
the MRND. However, there was simply insufficient information before the Officer
to conclude that this fact alone was sufficient to put the applicant at risk in
Rwanda. Further,
there is nothing to suggest that the applicant is at risk with the current
political regime because of its work in the hospital of Butare. Absent
further evidence that he would be identified as a member of the opposition, it
was open to the Officer to conclude that the applicant had not demonstrated
that he was at risk.
[22]
It
is trite law that a PRRA application is not an appeal or a reconsideration of
the decision of the RPD (Raza v Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, [2007] FCJ No 1632). The
applicant was required to provide all the evidence necessary to establish his
claims. In light of his failure to do so, the Officer’s decision was
reasonable.
[23]
Finally,
the applicant submits that the Officer erred in her consideration of the
country’s condition documentation. The applicant notes that the Officer clearly
accepted that there are significant problems in Rwanda but
concluded that the documented events are not connected to the personal
situation of the applicant. The applicant submits that such a conclusion is
unreasonable, as the documentary evidence clearly establishes that those associated
with the genocide, which is part of the applicant’s profile, are at risk of
unfair trials and arbitrary detention. The applicant further asserts that the
Officer’s conclusion that all Rwandans face the same risk as the applicant is
unreasonable, as it is clear that the applicant is not like all other Rwandans.
[24]
The
applicant relies on Sittampalam v Canada (Minister of Citizenship and
Immigration), 2009 FC 65, [2009] FCJ No 59, where the Court set aside a
danger opinion because the Officer had failed to consider documentary evidence
indicating that the risk to the applicant was different from the risk to other
Sri Lankans because of his association with the LTTE.
[25]
In
the case at bar, the applicant failed to establish that he would be associated
with the genocide upon his return. The Officer reasonably concluded that the
documentary evidence did not disclose a personalized risk to the applicant. At
the hearing before this Court, counsel for the respondent correctly submitted
that although the applicant is found to be complicit, this does not necessarily
mean that the applicant is at risk. On the basis of the evidence submitted in
this case, there is no link that allows this Court to conclude that the
applicant would be subject to torture in Rwanda because he
was found to be complicit. Similarly, since the applicant failed to establish
that his situation is different from the situation faced by other Rwandans, the
Officer, based on the evidence before her, did not err by concluding that all
Rwandans face the same risk as the applicant. Thus, the Court concludes that
the Officer did not err in analyzing the evidence submitted by the applicant.
2.
Did
the applicant suffer a breach of natural justice and procedural fairness due to
incompetent counsel?
[26]
The
applicant submits that there was a breach of natural justice in this case
because he was not aptly represented by his previous counsel and was
subsequently prejudiced. The applicant refers to R v G.D.B., 2000 SCC
22, [2000] 1 S.C.R. 520, where the Supreme Court of Canada held that in order to
determine whether a party’s counsel was incompetent, the party must establish
that: (i) the misconduct of counsel falls outside what would be normal
professional judgment; and (ii) there was a miscarriage of justice as a result.
[27]
The
applicant claims that this test has been applied in the immigration
jurisprudence of this Court (Shirwa v Canada (Minister of Employment and
Immigration) (TD), [1994] 2 FC 51, [1993] FCJ No 1345; Drummond v Canada
(Minister of Citizenship and Immigration) [1996] FCJ No 477, 112 FTR 33; Osagie
v Canada (Minister of Citizenship and Immigration), 2004 FC 1368, [2004]
FCJ No 1656).
[28]
The
applicant further submits that when counsel is retained to represent a client
on a PRRA application, it is standard practice to interview the client, inform
them of the proper information to provide to the PRRA Officer, ask the client
to provide any documentary evidence substantiating their fear, submit certified
true copies of any original documents, and prepare written submissions in
support of the application.
[29]
In
the case at bar, the applicant asserts that his previous counsel acted
incompetently in a number of areas by failing to review the PRRA forms filled
out by the applicant, failing to prepare submissions in support of the
application, failing to advise the applicant to submit original letters of
support, failing to submit another letter of support provided to him by the
applicant, failing to inform the applicant that he needed to adduce evidence to
support the fact that his father had been arrested, that persons like his
father are at risk, and that the applicant would also be at risk by sharing his
last name with his father; and failing to make the applicant aware that further
evidence was requested of him. In a nutshell, the applicant claims that his
previous counsel failed to fulfil his obligations and as a consequence, his
previous counsel’s actions were clearly prejudicial to the applicant.
[30]
The
Court does not agree with the applicant’s submissions for the following
reasons. The test for whether counsel’s actions are so incompetent as to
constitute a breach of natural justice and procedural fairness is whether
counsel’s actions fall outside the professional norms, and also whether
counsel’s actions resulted in prejudice to the applicant. However, the burden
on the applicant is quite heavy. As noted in Parast v Canada (Minister of
Citizenship and Immigration), 2006 FC 660, [2006] FCJ No 844, at para
11:
[11] The applicant must accept the
consequences for his choice of counsel and for his deliberate decision to lie
about his personal situation. It is only in the most exceptional circumstances
that the Court considers the incompetence of counsel. According to the case
law, evidence of counsel's incompetence must be so clear and unequivocal and
the circumstances so deplorable that the resulting injustice caused to the
claimant is blatantly obvious: see Dukuzumuremyi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 278 at
paragraph 9, [2006] F.C.J. No. 349
(QL); Drummond
v. Canada (Minister of Citizenship and Immigration) (1996), 112 F.T.R. 33
at paragraph 6 (F.C.T.D.).
[31]
For
instance, in the case at bar, the applicant claims that the Officer’s rejection
of the letter of support was the result of his previous counsel’s incompetence.
However and as noted by the respondent, the Officer gave the letter little
weight not only because it was a copy, but also because the allegations
contained in the letter were uncorroborated and because the letter purported to
establish that the applicant had not committed any crime – a fact that was
irrelevant to the PRRA application, as it had already been established that the
applicant was complicit in crimes against humanity.
[32]
The
applicant also claims that he was prejudiced because the Officer did not have
the second letter of support. It is unclear from the record what information
was contained in this letter and the applicant has not explained why the
failure to include that letter was detrimental to his PRRA application. In the
Court’s view, it remains unclear that the applicant suffered any prejudice as a
result.
[33]
In
Nunez v Canada (Minister of Citizenship and Immigration) (2000), 189
FTR 147, [2000] FCJ No 555, the Court stated that “[t]he proof offered in support
of [an allegation of incompetence of counsel] should be commensurate with the
serious nature of the consequences for all concerned.”
[34]
Counsel
for the applicant referred the Court to a letter signed by the applicant and
addressed to the Bureau du Syndic, the professional organization that regulates
the conduct of lawyers for the Province of Québec. However,
there is no evidence that counsel referred to in the letter has been held
professionally liable (Certified Tribunal’s Record at pp 245-47) and it would
thus be inappropriate for this Court to make any determination in this matter (Dukuzumuremyi
v Canada (Minister of Citizenship and Immigration), 2006 FC 278, [2006] FCJ
No 349).
[35]
Finally,
the applicant states in his affidavit that his former counsel received a
request from the PRRA Officer, asking the applicant to submit further
documentation, and that counsel did not inform him of this request. However,
there is no evidence in the applicant’s record or in the certified tribunal
record indicating that the Officer attempted to contact the applicant to seek
additional, updated submissions. Absent such evidence, the Court cannot
conclude that such a request was made.
[36]
The
Court is of the opinion that it cannot conclude that the applicant experienced
prejudice not only as a result of his previous counsel’s actions based on this
evidence alone but also absent evidence as to the terms of the applicant’s
service agreement with his previous counsel.
[37]
Overall,
the Court finds that, while the applicant’s former counsel may have acted in a
manner that falls outside what is normally expected in the profession, the
evidence does not indicate such extraordinary incompetence (Huynh v Canada
(Minister of Employment and Immigration), [1993] FCJ No. 642, 65 FTR 11,
that caused any prejudice to the applicant as a result of counsel’s actions.
The applicant has not convinced this Court that the gaps in evidence are a
direct result of counsel’s actions. On the basis of the evidence provided by
the applicant, he failed to meet his burden. Thus, this Court cannot conclude
that the applicant’s counsel was incompetent to the point that the applicant
was deprived of natural justice or procedural fairness.
3.
Did
the Officer breach the duty of fairness by failing to disclose his intention to
rely on changing circumstances in Rwanda and ask for updated information from the
applicant?
[38]
The
applicant submits that the Officer erred by relying on the 2009 US DOS Report.
The applicant cites Mancia v Canada (Minister of Citizenship and Immigration)(C.A.),
[1998] 3 FC 461, [1998] FCJ No 565, where the Court stated that when an officer
wishes to rely on a document from a public source which became available after
the filing of submissions, the duty of fairness requires an officer to disclose
the document if it is “novel and significant and where [it evidences] changes
in the general country conditions that may affect the decision.” The applicant
also relies on Mahendran v Canada (Minister of Citizenship and Immigration),
2009 FC 1236, [2009] FCJ No 1554, where the Court again found that the officer
breached the duty of fairness by relying on a news article that post-dated the
applicant’s submissions without providing him with an opportunity to provide
his own updated information.
[39]
The
Court cannot conclude that the Officer erred in this case. In Mancia, supra,
at para 26, the Federal Court of Appeal clearly states:
[26] […]The fact that a document becomes available after the filing
of an applicant's submissions by no means signifies that it contains new
information nor that such information is relevant information that will affect
the decision. It is only, in my view, where an immigration officer relies on a
significant post-submission document which evidences changes in the general
country conditions that may affect the decision, that the document must be
communicated to that applicant.
[40]
In
this case, the paragraph of the US DOS report quoted by the Officer did not
contain “novel” or “significant” evidence, nor did it contain evidence of a
change in general country conditions. The US DOS report from 2007, which was
available in September 2008 when the applicant made his PRRA submissions,
contains the same information regarding the government’s efforts at ethnic
reconciliation. Thus, this information is clearly not the type of evidence
discussed in Mancia, supra. The Officer did not breach the duty
of fairness by failing to disclose this report to the applicant before relying
on its contents.
[41]
This
Court concludes that the Officer acted fairly and came to a conclusion that was
reasonable based on the evidence before her. In light of the above reasons,
this application will be dismissed. This case does not raise a serious question
of general importance which ought to be certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review be dismissed. No question is certified.
“Richard
Boivin”
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