Date: 20070126
Docket: IMM-3282-06
Citation:
2007 FC 65
Ottawa,
Ontario, the 26th
day of January 2007
Present:
The Honourable Mr.
Justice
Shore
BETWEEN:
ABRAHAM
BAHATY BAYAVUGE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
It is well
established in the case law that judicial review of a decision should
proceed only on the basis of the evidence before the decision-maker. (Gallardo v. Canada (Minister of Citizenship and
Immigration,
2003 FCT 45, [2003] F.C.J. No. 52 (QL) at paragraphs 7 and 8; Asafov v. Canada (Minister of Employment and
Immigration),
[1994] F.C.J. No. 713 (QL); Lemiecha Litigation Guardian) v. Canada (Minister of Employment and
Immigration),
(1993) 72 F.T.R. 49, [1993] F.C.J. No. 1333 (QL)
BACKGROUND
[2]
A pre-removal
risk assessment (PRRA) application made by a person whose claim has been rejected
by the Refugee Protection Division (Board) because he or she is excluded under
section 1F of the Convention relating to the Status of Refugees
(Convention) is not assessed on the basis of the definition of “Convention
refugee”, but rather on the grounds specified in section 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act).
[3]
This
requires the applicant to adduce evidence that he or she would be subjected to
a danger of torture, a risk to his or her life, or a risk of cruel and unusual
treatment or punishment if he or she had to return to his or her country of
origin.
[4]
In the
case at bar, Abraham Bahaty Bayavuge, did not discharge this burden, because he
did not specify in his PRRA what risks he would face in his country of origin.
In addition, he did not make any submissions or file any evidence in support
his application.
[5]
Mr.
Bayavuge cannot be allowed to ascribe any fault whatsoever to the PRRA officer
and has only himself to blame for the rejection of his PRRA application. He was
the person who failed to file any evidence in support of his PRRA application.
LEGAL PROCEEDINGS
[6]
This is an
application for leave and for judicial review of a decision of a PRRA officer
dated May 12,
2006, by which it
was determined that Mr. Bayavuge did not risk torture, cruel and unusual
treatment or punishment, or death threats if he were removed to his country of nationality.
FACTS
[7]
The
following facts concerning Mr. Bayavuge are drawn from the record submitted to
the Court.
[8]
The
applicant is a citizen of the Democratic Republic of the Congo and is 43 years
of age. He arrived in Canada on December 6, 2001, and made
a claim for refugee protection.
[9]
On August 9, 2004, the Board concluded that Mr.
Bayavuge was not a “Convention refugee” because he is excluded under Article
1F(a) of the Convention by reason of his years of service in various
security forces in Zaire during the Mobutu regime and in the Democratic
Republic of the Congo during the Kabila regime. According to the Board, Mr.
Bayavuge’s service with the Agence National d’Immigration (ANI), the Service
National de l’Intelligence et de Protection (SNIP) and the Direction Générale
de Migration (DGM), which are all security services, made him complicit in the
acts blamed on these organizations. Mr Bayavuge voluntarily joined the ANI by
using the contacts he had to be freely recruited, without any coercion, because
he wanted to work in the security services of his country. He also voluntarily
joined other services. Therefore, Mr. Bayavuge fears reprisals for his past years
of service.
[10]
On April
18, 2006, Mr. Bayavuge received a notice to apply for a PRRA under section 160
of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations). Pursuant to section 162 of the Regulations, Mr. Bayavuge had
until May 3, 2006, to file his application for
protection if he wanted his application not to be decided until at least
30 days after notification under
section 160 was given.
[11]
On May 8,
2006, that is, after the expiry of the 15-day time limit after notification was
given under section 160, Mr. Bayavuge submitted only his completed, but
unsigned, PRRA form. He did not submit any documentary evidence or other
document in support of his PRRA application. In his PRRA application, Mr.
Bayavuge stated that some evidence would be submitted later on.
[12]
On May 9, 2006, Citizenship and Immigration Canada
contacted Mr. Bayavuge by facsimile, asking him to sign his PRRA application.
[13]
On May 11,
2006, Mr. Bayavuge sent a facsimile of the signature page, signed and dated May 11, 2006.
[14]
According
to section 163 of the Regulations, because Mr. Bayavuge submitted his
application after the expiry of the time limit of 15 days following the receipt
of a notice to submit his application, he had to enclose his written submissions
with the application. This provision does not mention any restriction as to how
much time a PRRA officer may take to render a decision.
[15]
Therefore,
on May 12, 2006, the PRRA officer studied Mr. Bayavuge’s PRRA application,
which did not contain any submissions or evidence, and concluded that Mr.
Bayavuge had not discharged the burden of establishing serious reasons to
believe that his removal to his country would subject him to a danger of
torture, a risk to his life or a risk of cruel and unusual treatment or punishment.
PRRA OFFICER’S DECISION
[16]
The PRRA
officer studied the application solely in terms of section 97 of the Act,
because of the application of paragraph 112(3)(c):
|
(3) Refugee protection
may not result from an application for protection if the person
. . .
(c) made a claim to refugee
protection that was rejected on the basis of section F of Article 1 of the
Refugee Convention
|
(3) L’asile ne peut être
conféré au demandeur dans les cas suivants :
[...]
c) il a été débouté de sa demande
d’asile au titre de la section F de l’article premier de la Convention sur
les réfugiés;
|
[17]
The PRRA
officer concluded that Mr. Bayavuge did not discharge the burden of
establishing that he would be subject to a danger of torture, a risk to his
life or a risk of cruel and unusual treatment or punishment in his country.
[18]
The PRRA
officer reached this conclusion because Mr. Bayavuge had not specified in his
PRRA form the danger to which he was subject in his country. Mr. Bayavuge did
not specify how or why he would be subject to a risk in his country, nor did he
submit any evidence showing that he was subject to any risk.
ISSUES
[19]
The issues
in dispute may be expressed as follows:
(1) Before
making a decision, was the PRRA officer required to give Mr. Bayavuge a
written assessment under subsection 172(2) of the Regulations?
(2) Could
the PRRA officer reasonably reject Mr. Bayavuge’s PRRA application in spite of
the decision rendered by the Board in his case?
ANALYSIS
[20]
It is well
established in case law that judicial review of a decision should proceed only
on the basis of the evidence before the decision-maker. (Gallardo, supra,
at paragraphs 7 and 8; Asafov, supra; Lemiecha, supra)
(1) Before making a
decision, was the PRRA officer required to give Mr. Bayavuge a written
assessment under subsection 172(2) of the Regulations?
[21]
Mr.
Bayavuge completely ignores subsection 172(4) of the Regulations when he
submits that before making his decision the PRRA officer should have given him
a written assessment under subsection 172(2) of the Regulations.
[22]
It is true
that Mr. Bayavuge is described in paragraph 112(3)(c) of the Act, as he
was excluded by the Board under Article 1F(a) of the Convention. It is
also true that PRRA applications by persons described in one of the paragraphs
of subsection 112(3) are subject to a special assessment, as set out in
paragraph 113(d) of the Act.
[23]
In fact,
subsection 172(2) of the Regulations provides that a written assessment on the
basis of the factors set out in section 97 of the Act and a written assessment on
the basis of the factors set out in subparagraph 113(d)(i) or (ii) of
the Act must be given to Mr. Bayavuge, an applicant described in subsection
112(3) of the Act.
[24]
However,
subsection 172(4) of the Regulations, which applies to Mr. Bayavuge as an
applicant described in subsection 112(3) of the Act, provides that if a person
is not described in section 97 of the Act, as is the case with Mr. Bayavuge, the
application must be rejected.
[25]
Subsection
172(4) of the Regulations reads as follows:
|
Applicant not described in s. 97 of the Act
(4) Despite
subsections (1) to (3), if the Minister decides on the basis of the factors
set out in section 97 of the Act that the applicant is not described in that
section,
(a)
no written assessment on the basis of the factors set out in subparagraph
113(d)(i) or (ii) of the Act need be made; and
(b) the application is rejected.
|
Demandeur non visé à l’article 97 de la Loi
(4) Malgré les
paragraphes (1) à (3), si le ministre conclut, sur la base des éléments
mentionnés à l’article 97 de la Loi, que le demandeur n’est pas visé par cet
article :
a) il n’est pas nécessaire de
faire d’évaluation au regard des éléments mentionnés aux sous-alinéas 113d)(i)
ou (ii) de la Loi;
b) la demande de protection est rejetée.
|
[26]
Under this
provision, it is clear that the condition precedent for applying subsections
(1) to (3) of section 172 of the Regulations to the applicant is that he be described
in section 97 of the Act.
[27]
Therefore,
when the risk assessment is negative, as in this case, subsections 172(1) to
(3) of the Regulations respecting a written assessment do not apply.
[28]
Section 14
of chapter PP3 of the Protected Persons Manual confirms that it is only when
the PRRA officer concludes that the risk assessment is positive that he or she must
conduct an assessment of the factors set out in paragraph 113(d) of the
Act and give the applicant a written assessment:
|
The
PRRA officer must follow the following process:
·
Should
the risk assessment be negative, the PRRA officer will make the final
decision to reject the application for protection.
·
Should
the risk assessment be positive on the basis of the existence of danger of
torture, risk to life or risk of cruel and unusual treatment or punishment,
an opinion will be prepared by Case Management on whether the person is a
danger to the public in Canada or, in security cases, whether the applicant
should be removed because of the nature and severity of the acts committed or
danger the applicant constitutes to the security of Canada. Once the danger
opinion is completed, both risk and danger opinions are disclosed to the
applicant for submissions. The final decision, to allow or reject the
application for protection, is based on a balancing of the conflicting
interests: the risk to the individual against the risk to society.
|
L’agent
d’ERAR doit suivre la procédure suivante :
·
Si
l’évaluation des risques est négative, l’agent d’ERAR doit prendre la
décision finale de rejeter la demande de protection.
·
Si
l’évaluation des risques est positive, en raison de l’existence d’un danger
de torture ou de mort ou d’un risque de subir un traitement ou châtiment
cruel et inusité, le service de règlement des cas prépare un avis indiquant
si la personne représente un danger pour le public du Canada ou, dans les cas
de sécurité, si le demandeur doit être renvoyé en raison de la nature et de
la gravité des actes qu’il a commis ou du danger qu’il représente pour la
sécurité du Canada. Lorsque l’avis de danger est conclu, les avis de risque
et de danger sont transmis au demandeur afin qu’il soumettre ses
observations. La décision finale d’accepter ou de rejeter la demande de
protection est rendue en fonction d’un équilibre entre les intérêts opposés,
soit les risques courus par la personne contre les risques qu’il représente
pour la société.
|
[29]
The rationale
for this written assessment is to allow an applicant who is facing removal to a
country where he or she runs the risk of being tortured to make comments about
the assessment conducted by the decision-maker based on the factors set out in
section 97 and subparagraph 113(d)(i) or (ii) of the Act.
[30]
In the
case at bar, since the PRRA officer concluded that Mr. Bayavuge had not
established any danger of torture or risk of cruel and unusual treatment or
punishment, he was not obliged to give Mr. Bayavuge a written assessment or to
conduct an assessment of the factors set out in paragraph 113(d) of the
Act. Accordingly, the officer had to reject the PRRA application.
[31]
Therefore,
the PRRA officer did not err in not giving Mr. Bayavuge the written assessment set
out in subsection 172(2) of the Regulations. No intervention is warranted by
the Court on this point.
2. Could the PRRA
officer reasonably reject Mr. Bayavuge’s PRRA application in spite of the
decision rendered by the Board in his case?
[32]
Mr.
Bayavuge submits that the PRRA officer ignored the decision rendered by the
Board, which, according to him, acknowledged that the facts alleged in support
of his claim for refugee protection were true.
[33]
According
to Mr. Bayavuge, the PRRA officer could not reasonably conclude that he [translation] “did not explain why he is wanted or why he is
subject to mistreatment in the DRC” on the basis of the allegations he
submitted in support of his claim for refugee protection.
[34]
In other
words, Mr. Bayavuge submits that even though he did not specify in his PRRA
application to what risks he was subject in his country or provide any supporting
evidence, submissions or the decision of the Board concerning him, the PRRA
officer should have taken into consideration, in the assessment of his PRRA
application, the submissions he made in support of his claim for refugee
protection nearly two years earlier.
The Board never ruled on Mr.
Bayavuge’s risks of return
[35]
In this
case, it is important to properly understand the decision rendered by the Board
in the case of Mr. Bayavuge and his family.
[36]
Contrary
to what Mr. Bavayuge submits, the Board never concluded that the facts alleged
by him were true. At most, it concluded that the facts “could” be true. It
seems to have given the benefit of the doubt to Mr. Bayavuge’s family members,
thereby recognizing them as “Convention refugees”. (Reasons for Decision of the
Board, page 10, paragraphs 2-3: Applicant’s Record, page 57)
[37]
Having recognized
Mr. Bayavuge’s family members as Convention refugees within the meaning of
section 96 of the Act, the Board did not draw any conclusion with regard to the
requirements of section 97 of the Act for recognition of “person in need of
protection” status.
[38]
Therefore,
Mr. Bayavuge cannot validly claim that the Board concluded that there is a
danger of torture for himself and his family within the meaning of section 97
of the Act, especially since the Board never considered the issue of Mr.
Bayavuge’s inclusion.
[39]
In fact,
having concluded that Mr. Bayavuge was excluded, the Board did not consider
whether he met the criteria of the definition of “Convention refugee” or that
of “a person in need of protection”.
[40]
Even if,
as the PRRA officer stated in his Notes to File, [translation]
“It
is implicit in this conclusion that the panel is of the opinion the applicant
is in danger of being persecuted for this reason”, the fact is that according
to section 97 of the Act, the only issue considered is whether there is a
danger of torture, a risk to his life or a risk of cruel and unusual treatment
or punishment, and not if there is a risk of persecution. (PRRA officer’s Notes
to File, page 2, second-to-last paragraph; Applicant’s Record, page 7).
[41]
Because
the Board did not rule on the issue of Mr. Bayavuge’s inclusion, the PRRA
officer had to assess whether Mr. Bayavuge met the requirements of section 97
of the Act.
The PRRA officer had no
submission or evidence before him
[42]
To show
the PRRA officer that he was subject to a risk in his country within the
meaning of section 97, Mr. Bayavuge had to specify in his application what
risks he faces in his country of origin and support his allegations with
evidence.
[43]
It is trite
law that in PRRA applications, the burden of proof is on the person claiming
protection under subsection 114(1) of the Act. It is up to that person to
establish that protection must be granted to him or her. (Traoré v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1647, [2005] F.C.J. No. 2019 (QL) at paragraph 14).
[44]
In this
case, Mr. Bayavuge did not make any submissions and did not submit any
documentary or other evidence in support of his PRRA application.
[45]
In his
application, Mr. Bayavuge did not specify what risk he would be personally
subject to if he returned to his country. (PRRA officer’s Notes to File, page
2, paragraph 1; Applicant’s Record, page 7)
[46]
Therefore,
the PRRA officer had to reject Mr. Bayavuge’s application for protection
because he obviously did not discharge his burden of proof.
The PRRA officer was not required to take
into consideration the evidence which was not submitted by Mr. Bayavuge in
support of his PRRA application.
[47]
Contrary
to what Mr. Bayavuge alleges, in order to decide his PRRA application, the PRRA
officer did not have to refer to the facts he had submitted to the Board for
his claim for refugee protection.
[48]
It was up
to Mr. Bayavuge to submit these facts in evidence to the PRRA officer. As the
officer states in the Notes to File, [translation] “In his PRRA
application, the applicant did not specify how or why he is subject to a risk in
the DRC and did not refer to the IRB decision”. (PRRA officer’s Notes to File,
page 2; Applicant’s Record, page 7).
[49]
Mr.
Bayavuge could not expect the PRRA officer to take into consideration the
evidence he submitted in support of his claim for refugee protection, because
he did not submit this evidence in support of his PRRA application. Nothing
shows that this evidence was in the file Citizenship and Immigration Canada had
concerning Mr. Bayavuge.
[50]
If Mr.
Bayavuge wanted the PRRA officer to consider the evidence he submitted to the
Board, the onus was on him to submit this evidence in support of his PRRA
application, which he did not do.
[51]
The PRRA
officer most certainly did not have to search Mr. Bayavuge’s immigration file
to try to discover if there was evidence which could in some way establish the
existence of a risk for Mr. Bayavuge in his country of origin.
[52]
It must be
noted that the PRRA officer was well aware of the decision rendered by the
Board. However, he noted that the Board had not commented on or reached any
conclusion about the likelihood of a risk to his life, a danger of torture or a
risk of cruel and unusual treatment or punishment, which is absolutely true.
(PRRA officer’s Notes to File, page 2, second-to-last paragraph; Applicant’s Record,
page 7).
[53]
Therefore,
because no examination of inclusion was conducted by the Board, and because it
never determined that the facts alleged by Mr. Bayavuge were true and
established the existence of a personalized risk to himself within the meaning
of section 97 of the Act, the PRRA officer had to reach his own conclusions on
the basis of the evidence before him.
[54]
The PRRA
officer did not have any submissions, documentary evidence or other documents
to establish the existence of a personalized risk for Mr. Bayavuge in his
country of origin. Mr. Bayavuge did not even specify in his application
the risk to which he personally would be subjected if he returned to his
country. (PRRA officer’s Notes to File, page 2; Applicant’s Record, page 7).
[55]
It was not
up to the PRRA officer to speculate on the risk to which Mr. Bayavuge could
personally run now if he had to return to his country.
[56]
The PRRA
officer could only exercise the jurisdiction granted to him, no more, no less. With
no evidence submitted to him, no submissions made and no details adduced about
the possible risk, he had no other choice but to reject Mr. Bayavuge’s application
for protection.
[57]
In this
case, the PRRA officer properly considered Mr. Bayavuge’s PRRA application. He is
blameless in this. The application was rejected because Mr. Bayavuge failed to
file evidence in support of his PRRA application.
CONCLUSION
[58]
For these
reasons, Mr. Bayavuge has not established that intervention by this Court would
be warranted, given the PRRA officer’s decision in his case. The application
for judicial review is therefore 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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