Docket: IMM-1827-11
Citation: 2011 FC 1156
Toronto, Ontario, October 13,
2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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LORRAINE MPSHE, PULENG MAHONGWA, LESEGO MONTANA MPSHE AND KAMOGELO KARUBO MAHONGWA
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Applicants
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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 ORDER AND ORDER
[1]
The
decision presently under review is a second Pre-Removal Risk Assessment (PRRA)
in which the principle Applicant Ms. Mpshe and her sister, Ms. Mahongwa,
claimed risk on gender grounds due to fear of violence, in particular, from
their intimate partners should they be required to return to South Africa.
[2]
The
first PRRA officer made the following determination with respect to generalized
and personalized gender risk:
I do not find that Lorraine
Mpshe has presented sufficient objective evidence in her narrative to tie these
generalized crimes to a personalized risk to any of the four applicants. I note
that the Reasons Why We Left South Africa narrative does not present any
evidence regarding the filing of a police report, or any other contact with the
authorities in South Africa.
[…]
I accept that Lorraine Mpshe
does present personalized evidence in her narrative regarding a fear for her
safety, at the hands of her husband, Totoni Mpshe. I also accept that there
were events which occurred in Canada that lead to the issuance of the Recognizance
of Bail; however, I note that Totoni Mpshe has since made arrangements to
depart Canada, and I find that there is insufficient objective evidence before
me to demonstrate that Totoni Mpshe has threatened to harm any of the four
applicants, or that he seeks to have a relationship with any of the four
applicants in South Africa which might place any of the four applicants in
danger.
(Certified Tribunal Record, pp. 320 – 321)
[3]
On
their second PRRA application presently under consideration, Counsel for Ms.
Mpshe attempted to introduce “new” evidence to the PRRA Officer that goes to
prove Mr. Mpshe is violent, and, thus, is a continuing risk to Ms. Mpshe. The
evidence is a report coined a “Crown Brief Synopsis” written by the police
officers that investigated the assault on Ms. Mpshe by her husband as mentioned
by the first PRRA officer in the above quoted passage.
[4]
The
PRRA Officer received the report after writing, but not delivering, the
decision under review, and, thus, its reception into evidence was dealt with by
way of an Addendum which forms part of the decision under review. In the
decision the following findings are made:
As the Pre-Removal Risk
Assessment is not designed to be an appeal process for Refugee Board decisions,
but an evaluation of new evidence presented, only evidence presented by the
applicant which responds to the criteria in Section 113(a) of the Act and
161(2) of the Regulations can be considered. In a similar fashion, where a
person has already received a PRRA, a subsequent assessment is based only on
evidence arising since the previous one (per the administrative law principle
of issue estoppel).
As the applicant did not claim
refugee protection, and were not heard before the Immigration and Refugee Board
Refugee Protection Division (the Board), the New Evidence evaluation is not
applicable.
However, they have previously
submitted PRRA applications which were refused on 15 February 2010. Therefore,
I will consider the evidence submitted with respect to the administrative law
principle of issue estoppel.
(Application Record, p. 10)
In the Addendum the following elaboration is
provided:
The above noted applicants submitted a
subsequent PRRA application which was received on 9 December 2009 and which had
been refused on 31 January 2011. The applicants, via their counsel, then
submitted additional documentary evidence, which was received on 1 February
2011, before the PRRA decision had been communicated to them. Therefore, I have
reevaluated their PRRA application in light of these new submissions.
The applicants submitted a copy of a case
file synopsis from the Guelph Police Service for Mr. Totoni Benjamin MPSHE.
This document provides information regarding the principal applicant’s spouse
and his arrest for allegedly assaulting his wife while in Canada. I note that
some portions of this report have been blacked out.
This information had previously been
given by the applicants in their subsequent PRRA application as well as in
their first PRRA application. Information and supporting documentation
regarding the principal applicant seeking police assistance from her spouse
while in Canada have already been taken into consideration.
That being said, I also note that this
document is dated 23 December 2010 [sic] and thus pre-dates the previous PRRA
decision, signed 15 February 2010 and delivered to the applicants on 10 March
2010. Therefore, I find that it does not meet the requirements of the
administrative law principle of issue estoppel and is therefore
excluded.
After careful consideration of the above,
my decision dated 31 January 2011 remains unchanged.
(Application Record, p. 5)
[Emphasis added]
[5]
The
determinative issue in the present Application is whether the PRRA Officer made
a reviewable error in not admitting the report into evidence.
[6]
The
Applicants argue that the evidence contained in the report is “new” and should
have been accepted into evidence by the PRRA Officer because it provides
details which expand on Ms. Mpshe’s account of the assault event. In particular,
the observations of the police officers who attended go to prove that the assault
was serious and, therefore, Ms. Mpshe is at risk of further violence from her
husband should she return to South Africa. I find that the
problem with this argument is that it was not made to the PRRA Officer at the
time the report was tendered. The report was tendered with the following
letter:
I am legal counsel to the
above captioned PRRA applicants. Ms. Lorraine Mpshe recently procured the
following attached document in support of her submitted PRRA application:
Copy of case file synopsis
from the Guelph Police Service, case file No. GU09041228, Mpshe, Totoni
Benjamin.
I ask that you take this said
document into consideration in making your final determination on the said
applicants’ PRRA application. Should you have any questions or concerns, please
feel free to contact the undersigned.
(Tribunal Record, p. 177)
In my opinion, without a compelling
argument as to why the report constitutes “new”, and, therefore, admissible
evidence, I find no reviewable error in the PRRA Officer’s decision to reject
the evidence.
ORDER
THIS COURT
ORDERS that as I find no reviewable error in the decision under review,
the present Application is dismissed.
“Douglas
R. Campbell”
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