Date: 20070830
Docket: IMM-6636-06
Citation: 2007 FC 875
Montréal, Quebec, the 30th day of August
2007
Present:
the Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
BEATRICE LEUDJEU
(A.K.A. IRENE NGOUDJOU)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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, S.C. 2001, c. 27 (the Act), from the decision
of an immigration officer on August 28, 2006 the effect of which was to dismiss
the applicant’s pre-removal risk assessment (PRRA) application.
FACTS
[2]
The
applicant Béatrice Leudjeu is a citizen of Cameroon and a member
of the Bamileke tribe: she was born in Douala.
[3]
She
left her country on June 30, 1998 and on arrival in Canada on July 2,
1998 claimed refugee status. On April 14, 1999 the Refugee Protection
Division (RPD) concluded that the applicant is not a Convention refugee. The
applicant challenged this decision and filed an application for judicial review
in the Federal Court, which dismissed it on June 30,
1999
as a consequence of the applicant’s failure to file her record within the
specified deadline.
[4]
On
November 1, 2000 the applicant sent Citizenship and Immigration Canada a letter
from France falsely
stating that she had left Canadian territory, whereas on the contrary she not
only did not leave Canadian territory but remained in hiding under a false
identity in order to avoid her removal, scheduled for December 13, 2000, for which
she did not appear.
[5]
The
result was that on January 10, 2001 an arrest warrant was issued for the
applicant’s removal and it was not until January 6,
2005
that she was arrested and made a pre-removal risk assessment (PRRA)
application.
[6]
In
her PRRA application the applicant alleged that her father was a member of the Social
Democratic Front (SDF) and that she accompanied him to raise funds and attend
certain meetings. The applicant alleged she was arrested by the police twice
with her father in 1992.
[7]
Further,
the applicant stated that in June 1998 members of the militia came to the
family residence to ask her father to stop financing the SDF, and threatened to
kill his children. She said she fled to another room and not long afterwards found
her father bathed in blood. The following day, he succumbed to his injuries in
hospital.
[8]
Two
weeks later, the applicant gave her children to a sister to care for and left Cameroon with a false
passport. She stated that the risks which led her to flee her country still
exist, as she is the daughter of a former SDF member and a member of the
Bamileke tribe. She also alleged that as a woman with AIDS, she risks being
ostracized in her country.
IMPUGNED DECISION
[9]
On
August 28, 2006 the officer responsible for the PRRA dismissed the application,
concluding that Ms. Leudjeu had not discharged her burden of showing that if
she returned to Cameroon she would incur risks justifying the protection
sought, pursuant to sections 96 and 97 of the Act.
ISSUE
[10]
The
only issue in the case at bar is whether the decision of the PRRA officer which
had the effect of rejecting the applicant’s PRRA application is vitiated, as
she maintains, by an error warranting the cancellation sought.
ACT
[11]
For
a protection application, subsection 112(1) of the Act provides that:
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112(1) A person in Canada,
other than a person referred to in subsection 115(1), may, in accordance with
the regulations, apply to the Minister for protection if they are subject to
a removal order that is in force or are named in a certificate described in
subsection 77(1).
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112(1) La personne se trouvant au Canada et qui n’est pas
visée au paragraphe 115(1) peut, conformément aux règlements, demander la
protection au ministre si elle est visée par une mesure de renvoi ayant pris
effet ou nommée au certificat visé au paragraphe 77(1).
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[12]
For
review of an application, section 113 of the Act provides that it is disposed
of as follows:
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(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;
(b) a hearing may be held if the Minister, on the basis
of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in
subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection
112(3), consideration shall be on the basis of the factors set out in section
97 and
(i) in the case of an applicant for protection who is
inadmissible on grounds of serious criminality, whether they are a danger to
the public in Canada, or
(ii) in the
case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of Canada.
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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;
b)
une audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de territoire pour
grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait que la
demande devrait être rejetée en raison de la nature et de la gravité de ses
actes passés ou du danger qu’il constitue pour la sécurité du Canada.
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STANDARD OF REVIEW
[13]
The
standard of review for conclusions dealing with credibility, which are at the
heart of the PRRA decision, is that of patent unreasonableness. The standard of
review on specific findings of fact comes under paragraph 18.1(4)(d) of
the Federal Courts Act, R.S.C. 1985, c. F-7, which provides that the
Court must be satisfied that a tribunal has based its decision or order on an
“erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it” (Tekie v. Canada (Minister of
Citizenship and Immigration), 2005 FC 27, [2005] F.C.J. No. 39 (QL), at
paragraph 6; Figurado v. Canada (Solicitor General), 2005 FC 347, [2005]
F.C.J. No. 458 (QL), at paragraph 51; Kim v. Canada (Minister of Citizenship
and Immigration), 2005 FC 437, [2005] F.C.J. No. 540 (QL), at paragraph
22).
[14]
As
to the PRRA decision in general, that is, application of the law to the facts
by the immigration officer, the standard of review in such a case is that of
reasonableness simpliciter (Figurado, supra, and Kim, supra,
at paragraphs 19-20).
[15]
Did
the PRRA officer make a reviewable error in dismissing Ms. Leudjeu’s PRRA
application?
[16]
The
applicant maintained that the PRRA officer erred on two points. First, the
officer’s decision on the applicant’s HIV status was wrong in that:
(i)
he
did not make a cumulative analysis of the risks of persecution of persons with AIDS;
(ii) his
analysis of the risks was patently unreasonable;
(iii) he did
not properly explain why the risks incurred by persons with AIDS did not amount
to persecution;
(iv)
he
treated the documentation selectively and his conclusion was unreasonable, in
that it had the effect of imposing too high a burden of proof on the applicant.
Second, the officer did not make a
cumulative analysis of the applicant’s risk of persecution resulting from her HIV
status and her status as a member of the SDF.
[17]
Contrary
to the applicant’s arguments, the Court considers that the PRRA officer made a
thorough analysis of the applicant’s risks of persecution if she were to return
to Cameroon.
[18]
The
only purpose of the PRRA is to assess the risks to which a person might be
exposed on removal to his or her country of origin, based on new facts
occurring since the decision by the RPD on his or her refugee
status application. Paragraph 113(a) of the Act leaves no room for
ambiguity in this regard.
[19]
The
PRRA officer first assessed the applicant’s involvement as a member of the SDF.
He noted that the SDF had been recognized as a political opposition party by
the Government of Cameroon. He also noted that the leaders of the party had
been beaten or killed by supporters of the Cameroon People's Democratic
Movement (CPDM).
[20]
However,
the officer noted that no political murder or disappearance had been reported
in the last year and that legal action had been taken against an SDF leader,
John Khontem. Further, the officer noted that unlike in previous years the
police no longer intervened to end SDF political meetings. Consequently, and in
view of these findings based on the evidence, it was not unreasonable for the
PRRA officer to conclude that the applicant was no longer at risk of
persecution if she returned to her native land.
[21]
The
officer also assessed the applicant’s risks of persecution as a woman with
AIDS. After analyzing medical treatments for AIDS in Cameroon, the officer
admitted that there was still some distance to go in changing attitudes and
ending the inadequate or mistaken information circulating about the virus, and the
stigma and discrimination against persons suffering from the illness.
[22]
However,
the officer noted that although the situation was not ideal in Cameroon for persons with
AIDS, they were not for that reason persecuted. The officer noted that the
applicant could get the available medical services existing in her native land.
[23]
It
is up to the PRRA officer to assess the risks to which Ms. Leudjeu would be
exposed if she returned to Cameroon. Since the Court
considers here that the officer reviewed all the risks of discrimination
alleged by the applicant and explained why he was not extending the protection
sought, and none of his findings appear to be perverse or unreasonable, the
Court clearly cannot in such circumstances intervene to substitute its opinion
for that of the PRRA officer.
[24]
The
application for judicial review of the PRRA decision will accordingly be
dismissed.
QUESTIONS SUGGESTED BY APPLICANT FOR CERTIFICATION
[25]
The
applicant submitted the following questions for certification:
Question 1
(A)
If the
PRRA officer receives new evidence on an applicant’s credibility, should he
rule clearly and specifically on the latter’s credibility?
(B)
If so, can
it be assumed that if the officer does not rule on the applicant’s credibility
he believes the latter?
Question 2
(C ) When the record
indicates that an applicant may face various types of harassment and/or
discrimination, should the officer rule in clear and specific language in his
decision on the cumulative effect of the risks of persecution?
[26]
The
applicant submitted that the PRRA process set out in the Act is new law and
that several questions arise which the Court has not answered regarding the
function and responsibility of the PRRA officer. She further submitted that the
questions submitted transcend the parties’ immediate interests, contemplate
issues of broad significance or general application and are determinative of
the appeal.
[27]
In Canada
(M.C.I.) v. Liyanagamage, [1994] F.C.J. No. 1637 (C.A.), the Federal Court of Appeal laid down
the following rules:
[4] In
order to be certified pursuant to subsection 83(1), a question must be one
which, in the opinion of the motions judge, transcends the interests
of the immediate parties to the litigation and contemplates issues of broad
significance or general application (see the useful analysis of the concept of
“importance” by Catzman J. in Rankin v. McLeod, Young, Weir Ltd. et al.
(1986), 57 O.R. (2d) 569 (Ont. H.C.)) but it must also be one that is
determinative of the appeal. The certification process contemplated by section
83 of the Immigration Act is neither to be equated with the reference
process established by section 18.3 of the Federal Court Act, nor is it
to be used as a tool to obtain from the Court of Appeal declaratory judgments
on fine questions which need not be decided in order to dispose of a particular
case.
[28]
The
respondent objected to certification of the questions, and unlike the applicant
maintained that the questions submitted did not transcend the immediate interests
of the parties and were not determinative of the appeal in the case at bar.
[29]
The first
question suggested is essentially as to whether a PRRA officer who, as in the
case at bar, is given new evidence must rule on the application of that
evidence to an applicant’s credibility. In suggesting this question, however,
the applicant appeared to forget that her credibility has never been questioned
in the case at bar either by the officer or by the respondent.
[30]
On the
applicant’s membership in the SDF party, the PRRA officer said the following:
[TRANSLATION]
In this regard, even admitting that the
applicant is an SDF party member, I also have to recognize that the SDF is the
main opposition party in Cameroon and it is this party which
plays the leading role in opposition to the existing government. The party is
legally registered, which does not make membership in the party illegal.
Further, as shown earlier, although its members may occasionally be the victims
of discrimination, I am not satisfied that this amounts to persecution.
[31]
It appears
from this passage from the PRRA that for purposes of analyzing the risk to
which the applicant said she would be exposed as a member of the SDF the
officer assumed she was a member of that party. On that basis, therefore, he
did not have to rule on the applicant’s status as a member or to say whether he
believed it. Once the officer assumed for purposes of analyzing the risk that she
was a member of the SDF, the question of the applicant’s credibility on this
point no longer arose.
[32]
Consequently,
as the applicant’s credibility was not at issue in respect of the facts
underlying the first question, as regards her status as an SDF member, there is
no need to certify the question. The applicant’s credibility has nothing to do
with the reasons which led the PRRA officer to reach the conclusion which he
did.
[33]
The second
question seeks to require the PRRA officer to indicate clearly and specifically
in his analysis the cumulative effect of all the risks of harassment or
persecution to which an applicant proves she is exposed.
[34]
Here, the
applicant attached great importance to the following passages from the judgment
in Mete v. M.C.I., 2005 FC 840, when the Court, per
Dawson J., recalled the well-established legal principles:
[5] Second, in cases where the evidence establishes a series of
actions characterized to be discriminatory, and not persecutory, there is a
requirement to consider the cumulative nature of that conduct. This requirement
reflects the fact that prior incidents are capable of forming the foundation of
present fear . . .
[6] Third, it is an error of law for the RPD not to consider the
cumulative nature of the conduct directed against a claimant . . .
[35]
The
evidence in the case at bar recently did not “[establish] a series of actions
characterized to be discriminatory”. On the contrary, the applicant presented
evidence of no incident specifically directed against her. She offered no
documentary proof that SDF members and persons with AIDS were the subject of
discrimination that amounted to persecution.
[36]
However,
it appears from Mete, supra, that what is important is not so much the
way in which the PRRA officer said he examined the cumulative effect of the
risks, but his having weighed and analysed all of them. It would not suffice
for the officer to say he had examined the cumulative effect of risks if it
were to appear that he was ignoring certain important points in the analysis
leading to his conclusion.
[37]
Based on
the evidence in the record, the second question suggested by the applicant for
certification is at most a means of obtaining declaratory relief from the Court
of Appeal on a point which does not have to be decided in order to dispose of
the case at bar. Certification of this question will never make up for the
absence of a series of actions against the applicant which could be regarded as
discriminatory, evidence which the PRRA officer did not have.
[38]
For these
reasons, the second question suggested by the applicant will also not be
certified.
JUDGMENT
THE COURT, for these reasons:
1.
dismisses
the application for judicial review;
2.
rejects
the certification of the suggested question.
“Maurice
E. Lagacé”
Certified true
translation
Brian McCordick,
Translator
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