Date: 20071115
Docket: IMM-246-07
Citation:
2007 FC 1187
Ottawa, Ontario, the 15th day of November
2007
Present:
The Honourable Mr.
Justice
Shore
BETWEEN:
KELETY
DOUMBOUYA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
PRELIMINARY
COMMENTS
[1]
The
Charter should not be used to cry wolf at every opportunity. Its importance is
such that indiscriminately crying wolf at every opportunity would make a
mockery of its intrinsic value. The Charter is the central theme running
through the Canadian Constitution. It keeps watch over and addresses the
fragility of the entire human condition. The Charter reflects our existence as
a society, led by principles designed to ensure the inviolability of the human
person along with the protection of community interests. This does not reveal a
paradox but rather proposes and seeks to achieve balance between these two
aspects.
[2]
Crying
wolf to undo a fair and reasonable decision would be unfair to society, which
is also made up of a group of individuals, who would be wronged individually
and collectively by the arguments of those who cry wolf for no valid reason.
INTRODUCTION
[3]
The
pre-removal risk assessment (PRRA) officer noted that the Refugee Protection
Division (RPD) had not believed the
applicant was involved with the Rally for the People of Guinea (RPG). After
referring to the requirements set out in paragraph 113(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), and
section 167 of the Immigration and Refugee Protection Regulations,
SOR/2002‑227 (Regulations), she stated that she would not consider the
allegations made by the applicant, Kelety Doumbouya, concerning his
involvement in founding a youth movement (Peace and Love) and his involvement
in the RPG because these were not new facts within the meaning of the Act. She
noted that all the facts and allegations relied on by Mr. Doumbouya
concerning his past activism in the RPG had already been analysed by the RPD, which
had found that he was not credible as regards his very involvement in the
movement, the dates and duration of that involvement and his flight, which was
uncorroborated in terms of time, travel documents and even the route he took.
[4]
The PRRA
officer concluded that the applicant had not discharged his burden of proving
that he would be personally persecuted if he returned to Guinea
(section 96 of the Act) or that he would be subject to torture, a risk to
his life or a risk of cruel and unusual treatment or punishment as defined in
section 97 of the Act. The PRRA officer reached this conclusion after
carefully analysing the evidence before her.
COURT PROCEEDINGS
[5]
The Court
has before it an application for leave and for judicial review under
subsection 72(1) of the Act concerning a decision made on November 24, 2006 by the PRRA officer,
Chantal Roy, rejecting the applicant's application for protection
(Department of Citizenship and Immigration record (CICR), pp. 1‑10).
[6]
On
September 6, 2007, prior to the hearing on September 18, 2007, Mr. Doumbouya served on
the respondent a notice of constitutional question raising the following
points:
(a) As
regards his right to be heard, he submits that paragraph 113(b) of
the Act and section 167 of the Regulations violate the right of every person
to give viva voce evidence before a decision‑maker. According
to Mr. Doumbouya, PRRA applicants are entitled to a viva voce
hearing only in limited circumstances and, given that this jeopardizes the
rights provided for in section 7 of the Canadian Charter of Rights and
Freedoms, Part I, Schedule B to the Canada Act 1982 (U.K.)
1982, c. 11 (Charter), Parliament should not be authorized to deny applicants a
full hearing on the merits of their application for protection in this way.
(b) As
regards the restrictions on admissible evidence set out in paragraph 113(a)
of the Act, Mr. Doumbouya argues that this provision violates [translation] "the rules of
fundamental justice and fairness (section 7 of the Charter and Canadian
Bill of Rights)" since it limits the admissible evidence in the PRRA
context to new evidence that arose after the claim was rejected by the RPD,
that was not reasonably available at the time of the rejection or that the
applicant could not reasonably have been expected in the circumstances to have
presented to the RPD. According to
Mr. Doumbouya, paragraph 113(a), which thus prevents PRRA
applicants from presenting all relevant evidence in support of their
application for protection, requires the decision‑making officer to
exclude evidence that would otherwise be relevant and/or conclusive in
assessing the application for protection. Mr. Doumbouya argues that, since
these restrictions have a direct impact on the right of PRRA applicants to
life, liberty and security, paragraph 113(a) is not consistent with
the principles of fundamental justice guaranteed in section 7 of the
Charter. For this reason, he argues, paragraph 113(a) must be
invalidated.
(c) Mr. Doumbouya
also submits that the PRRA procedure is constitutionally invalid because it denies
PRRA applicants the right to be heard by an independent and impartial tribunal
with regard to their application for protection. In support of this argument,
Mr. Doumbouya simply submits that the pre‑removal risk assessment is
made by an officer of the Department of Citizenship and Immigration Canada
(CIC). He argues that the relationship between PRRA officers and CIC gives rise
to a reasonable apprehension that such officers are biased and not independent.
[7]
The Court
notes that Mr. Doumbouya does not argue anywhere in his memorandum of
argument dated February 16, 2007 that the PRRA procedure is
constitutionally invalid because it denies PRRA applicants the right to be
heard by an independent and impartial tribunal.
[8]
The
allegation that a viva voce hearing should be granted in every case
to respect the applicant's right to be heard is made only in
paragraphs 77, 78 and 81 of Mr. Doumbouya's memorandum of argument,
but the Court is not asked to declare paragraph 113(b) of the Act
and section 167 of the Regulations constitutionally invalid for this
reason. In his memorandum of argument, Mr. Doumbouya asks the Court only
to allow his application for leave and for judicial review. Moreover, the
memorandum is not accompanied by a notice of constitutional question, since
that notice was not served on the respondent until September 6, 2007. Without such a notice,
Mr. Doumbouya could not ask the Court to declare paragraph 113(b)
of the Act and section 7 of the Regulations unconstitutional (see, inter alia,
Bekker v. Canada, 2004 FCA 186, [2004] F.C.J. No. 819 (QL),
paras. 7‑9).
[9]
As for
Mr. Doumbouya's argument that the restrictions on admissible evidence set
out in paragraph 113(a) of the Act mean that that provision
violates [translation] "the
rules of fundamental justice and fairness (section 7 of the Charter and
Canadian Bill of Rights)", that argument is not found anywhere in his
memorandum of argument of February 16, 2007.
[10]
Moreover,
Mr. Doumbouya did not file a supplementary memorandum as he was authorized
to do by this Court in its order of May 10, 2007 allowing the application
for leave.
[11]
The
respondent served and filed his supplementary memorandum on July 19, 2007.
[12]
In the
circumstances, the respondent had an opportunity to reply to the above‑mentioned
new arguments by Mr. Doumbouya.
FACTS
[13]
Mr. Doumbouya
is a 28‑year‑old citizen of Guinea.
[14]
He arrived
in Canada on December 8, 2002 and
claimed refugee status in Canada the same day.
[15]
His claim
for refugee protection was heard on September 2 and October 15, 2003. The RPD rejected his claim
on December 17,
2003. His
application for leave and for judicial review of that decision was dismissed on
April 6, 2004.
[16]
Before the
RPD, Mr. Doumbouya alleged
that he had been involved with the Peace and Love group, which organized
cultural and sporting activities and information workshops.
[17]
That group
was allegedly affiliated with the Party for Unity and Progress (PUP) and
supported the party's candidate and the election of President
Lasana Conté.
[18]
After the
elections, the PUP allegedly did not keep its promises, and Peace and Love
decided to support the opposition RPG in May 2000.
[19]
Mr. Doumbouya
was then allegedly arrested and released in June 2000 and went to Côte d'Ivoire, where he stayed for more
than two years.
[20]
He then went
to the United
States before
coming to Canada. The RPD wrote the following
about this:
. . . When asked why he did not try to
file a claim in the United
States,
Mr. Doumbouya said that his objective was to come to Canada. However, the claimant
travelled with a fake passport, he had no legal status in the United States and he made no claim. That
behaviour is deemed inconsistent with that of a person who fears being
persecuted in his country and risks being sent back because of his illegal
status in the United
States.
(CICR, p. 252)
[21]
With
regard to Mr. Doumbouya's so‑called membership in the RPG, the RPD did not believe he was a member and
wrote the following:
. . . there is no document after 1998
that confirms the claimant's presence in Guinea. The RPG membership card, seized by
Immigration, has been altered. The analysis of that card revealed other
factors that led the panel not to give it any probative value. Also, someone
tried to "correct" the date indicated on the membership card--instead
of 2003, it says 2000. The claimant could not or would not provide any
reasonable explanations for that finding. (Emphasis added)
(CICR, p. 251)
[22]
In the
context of his PRRA, Mr. Doumbouya referred to the general political
instability in the country, especially for members of the opposition and those
who criticize the government in power (applicant's record (AR), p. 7).
[23]
Mr. Doumbouya
also argued that his so‑called activism in the RPG, both past and
current, was reason for Canada to grant him protection
following the PRRA (CICR, p. 4).
ISSUES
[24]
(a) Did
the officer err in her risk assessment by finding that the documents submitted
by the applicant did not constitute new evidence within the meaning of
paragraph 113(a) of the Act?
(b) Did the officer
have to interview the applicant?
(c) Are the officer's
reasons sufficient?
(d) Did the officer
refuse to exercise her jurisdiction?
(e) Did the
officer err in law in considering the impact of the general documentary
evidence concerning Guinea?
(f) Is the
PRRA officer's decision, considered overall and as a whole, reasonable?
(g) Is
paragraph 113(b) of the Act consistent with the principles of
fundamental justice?
(h) Are the
restrictions on admissible evidence set out in paragraph 113(a) of
the Act constitutional?
(i) Can
the relationship between PRRA officers and CIC give rise to a reasonable
apprehension that those officers are biased and not independent?
ANALYSIS
Applicable
standards of review
[25]
Purely
factual questions decided by the PRRA officer in reaching the impugned decision
are reviewable on the standard of patent unreasonableness (Yousef v. Canada
(Minister of Citizenship and Immigration), 2006 FC 864, [2006] F.C.J.
No. 1101 (QL), para. 17; Chir v. Canada (Minister of Public Safety
and Emergency Preparedness), 2006 FC 765, [2006] F.C.J. No. 960 (QL),
para. 12; Mugesera v. Canada (Minister of Citizenship and Immigration),
[2005] 2 S.C.R. 100, para. 38; Stadnyk v. Canada (Employment and
Immigration Commission) (F.C.A.), [2000] F.C.J. No. 1225 (QL),
para. 22; Harb v. Canada (Minister of Citizenship and Immigration),
2003 FCA 39, [2003] F.C.J. No. 108 (QL), para. 14).
[26]
On the
other hand, when the PRRA officer must determine whether the documents
submitted meet the requirements of paragraph 113(a) of the Act, the
officer is considering a question of mixed law and fact subject to the
reasonableness simpliciter standard of review. This standard also
applies in reviewing the ultimate decision on the PRRA as a whole (Elezi v.
Canada (Minister of Citizenship and
Immigration), 2007 FC 240, [2007] F.C.J.
No. 357 (QL), paras. 21‑22; Herrada v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1004, [2006] F.C.J.
No. 1275 (QL), para. 24).
[27]
Moreover,
when a question arises about new evidence, it must be determined whether the officer
properly interpreted paragraph 113(a). The standard of correctness
applies to this question of law (Elezi, supra, para. 22).
The officer
considered all the evidence
(i) Documents
from before the rejection
[28]
Paragraph 113(a)
provides for three categories of new evidence, namely evidence that arose after
the rejection, evidence that was not reasonably available at the time of the
rejection and evidence that Mr. Doumbouya could not reasonably have been
expected in the circumstances to have presented at the time of the rejection.
These are distinct types of evidence (Elezi, supra,
para. 26).
[29]
The
officer clearly identified the documents from before the rejection that she
would not consider (AR, p. 9).
[30]
This
conclusion was consistent with the applicable principles, since those documents
did not meet the requirements of the second or third category, namely new
evidence that was not reasonably available at the time of the rejection or that
the applicant could not reasonably have been expected in the circumstances to
have presented to the RPD.
(ii) Applicant's
involvement in the RPG
[31]
The
officer also found that letters submitted by Mr. Doumbouya in support of
his PRRA application, although they post-dated the decision of the Immigration
and Refugee Board (IRB), basically set out facts that existed prior to that
decision and had been considered by the IRB. She found that they therefore did
not set out any new facts.
[32]
The
officer summarized the allegations made by Mr. Doumbouya before the RPD with regard to his involvement in the
RPG as follows. First, he was involved with Peace and Love, which organized
cultural and sporting activities and information workshops. That group was
affiliated with the PUP and supported the party's candidate and the election of
President Lasana Conté. After the elections, the PUP did not keep its promises,
and Peace and Love decided to support the opposition and the RPG in May 2000.
Mr. Doumbouya was arrested and released in June 2000. He left for Côte d'Ivoire, where he stayed for more than
two years before coming to Canada (AR, p. 7).
[33]
Mr. Doumbouya
submits that various documents he filed with the PRRA officer confirm:
1. His political
activities, the fact that he is wanted as an RPG mobilizer, his problems with
the PUP and the way he or his family was treated:
·
Letter by
Cissoko Siaka, May 7 or 8, 2004 (P‑17) (AR, p. B‑95)
·
Letter by
the RPG, May 4, 2004 (P‑22) (AR, p. B-96)
·
Letter by
the RPG, June 15,
2004 (P-22A)
(AR, p. B-97)
·
Affidavit
of Amara Kaba (P-33) (AR, p. B-60)
·
Affidavit
of Salomba Camara (P-34) (AR, p. B-64)
·
Affidavit
of Siaka Cissoko (P-35) (AR, p. B-67)
·
Acknowledgment
from the administrative secretary of the RPG (P-36) (AR, p. B‑10)
·
Acknowledgment
from the secretary general of RPG-Canada (P-37) (AR, p. B‑12)
·
Affidavit
of Mr. Doumbouya (P-38) (AR, p. B-14)
2. His political
involvement in Canada and the risk that, as a
result, he will be arrested if he returns:
·
Acknowledgment
from the administrative secretary of the RPG (P-36) (AR, p. B-10)
·
Acknowledgment
from the secretary general of RPG-Canada (P-37) (AR, p. B-12)
·
Affidavit
of Siaka Cissoko (P-35) (AR, p. B-67)
3. The arbitrary
arrest and detention and persecution of RPG members:
·
General
documentation on the crisis situation in Guinea (P-23 to P-32) (AR, pp. B‑98 et seq.)
(P-39 to P-53) (AR, pp. B-19 to B-53, B-122 to B-144)
·
Amnesty
International report (P-69) (AR, p. B-151)
·
Other
listed documents (applicant's memorandum of argument, para. 13)
[34]
It is not
sufficient that the "new" evidence confirms the facts relied on by
Mr. Doumbouya before the RPD.
[35]
Evidence
does not fall within the first category of evidence under paragraph 113(a)
of the Act just because it is dated after the decision, for otherwise a PRRA
application could easily become an appeal of the RPD's decision; Mr. Doumbouya could
gather "new" evidence to counter the RPD's findings and support his
application; this is why judges have insisted that the new evidence relate to
new developments either in country conditions or in Mr. Doumbouya's personal
situation (Elezi, supra, para. 27).
[36]
The new
evidence cannot be a mere repetition of the evidence submitted to the RPD; the nature of the information it
contains, its significance for the case and the credibility of its source are
all factors to be taken into consideration in determining whether it can be
considered new evidence (Elezi, supra, paras. 39 and 41).
[37]
The PRRA
process is intended to assess new risk developments between the IRB hearing and
the scheduled removal date (Ould v. Canada (Minister of Citizenship and Immigration),
2007 FC 83, [2007] F.C.J. No. 103 (QL), para. 19; Quiroga v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1306, [2006]
F.C.J. No. 1640 (QL), para. 12; Klais v. Canada (Minister of
Citizenship and Immigration), 2004 FC 783, [2004] F.C.J. No. 949 (QL),
para. 14).
[38]
When
considering evidence from the standpoint of the new evidence criterion, the
PRRA officer must ask whether the information it contains is significant or
significantly different from the information previously provided (Elezi,
supra, para. 29; Raza v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1385, [2006] F.C.J. No. 1779 (QL),
paras. 22‑23).
[39]
A careful
reading of the exhibits listed in point 1 of paragraph 33 makes it
clear that the purpose of the documents in question, as Mr. Doumbouya
states, is to confirm the evidence presented before the RPD. The last of these
exhibits, Mr. Doumbouya's affidavit, also seeks to challenge the RPD's decision (AR, pp. B‑14 to B‑18).
[40]
However,
as the Court stated in Elezi, supra, a PRRA application is not
and must not become an appeal of the RPD's decision. The applicant challenged
that decision in the Federal Court, and his application was dismissed.
[41]
The
officer also noted that the people who signed the above‑mentioned letters,
which discuss events allegedly experienced by Mr. Doumbouya, do not say
that they personally witnessed those events, which decreases the probative
value of the letters (AR, p. 9).
[42]
She noted
that the new evidence was not evidence that had not been reasonably available,
or that Mr. Doumbouya could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection (AR, p. 7).
[43]
In this
regard, Mr. Doumbouya argues that the new evidence was not filed with the
IRB because it required research, effort and the cooperation of third parties
to attest to the alleged facts (applicant's memorandum of argument,
para. 11).
[44]
However,
this explanation is not sufficient to make the evidence in question new
evidence. It was up to Mr. Doumbouya to prove his claim for refugee
protection. If he considered it appropriate to request time to obtain
additional evidence, he should have done so at the proper time. In the context
of a PRRA, he could not complete his evidence by filing documents he could have
obtained at the time.
[45]
If he
believed that the evidence he presented to the PRRA officer fell within the
second or third category of evidence referred to in paragraph 113(a)
of the Act, it was up to him to explain this to convince the officer that the
evidence met the requirements of that paragraph. It was up to the officer to
assess the explanations in light of the circumstances of the case.
[46]
The
officer did not have to take account of evidence that did not involve any new
developments.
[47]
The officer
noted that the RPD had not believed
Mr. Doumbouya was involved in the RPG. After referring to the requirements
of paragraph 113(a) of the Act, she stated that she would not
consider Mr. Doumbouya's allegations concerning his involvement with Peace
and Love and the RPG because they were not new facts within the meaning of the
Act. She noted that all the facts and allegations relied on by
Mr. Doumbouya concerning his past activism in the RPG had already been
analysed by the RPD, which had found that he was not credible (AR,
pp. 8‑9).
[48]
The
officer also reviewed the evidence concerning Mr. Doumbouya's involvement in
the RPG since his arrival in Canada. She concluded that this
evidence was not sufficient to establish that he would be at risk if he returned.
It is therefore not correct to say that the RPD ignored this evidence (AR, p. 9).
[49]
It was not
the officer's role to review the RPD's findings on Mr. Doumbouya's
credibility with regard to his involvement in the RPG in Guinea (AR, p. 9). The
officer's conclusion that the evidence on Mr. Doumbouya's involvement in
the RPG in Canada was not sufficient to
establish that he would be at risk if he returned (AR, p. 9) must be
understood in this context.
[50]
The
officer made due mention of the evidence in question, which she listed (AR,
p. 9):
·
Acknowledgment
from the administrative secretary of the RPG (P-36) (AR, p. B-10);
·
Acknowledgment
from the secretary general of RPG-Canada (P-37) (AR, p. B-12);
·
Rally for
the People of Guinea: letters dated May 4, June 11 and June 15, 2004 (P‑22 and P‑22A)
(AR, pp. B‑96 and B‑97);
·
Affidavits
of Amara Kaba, Salomba Camara and Siaka Cissoko dated July 26, 2004
(P‑33 to P‑35) (AR, pp. B‑60 to B‑69).
[51]
In the
first of these exhibits, found at page B‑10 of the applicant's
record, the signatory begins by stating that Mr. Doumbouya was a member of
the RPG in Guinea. However, this premise, which
the RPD did not accept, was not taken
into consideration by the officer, with good reason. In the circumstances, it
was not patently unreasonable for the officer to find that the mere statement
that Mr. Doumbouya was active in the Canadian section of the RPG was not
enough.
[52]
The same
is true of Siaka Cissoko's affidavit at pages B‑67 and B‑68,
Salomba Camara's affidavit at pages B‑64 and B‑65 and Amasa Kaba's
affidavit at pages B‑60 and B‑61 of the applicant's record.
[53]
None of
the persons who signed these three documents backs up his assertion that
Mr. Doumbouya would be persecuted because of his role in the RPG in Canada.
[54]
The
respondent reiterates that, in the circumstances, it was not patently
unreasonable for the officer to find that the mere statement that
Mr. Doumbouya was an activist in the Canadian section of the RPG was not
enough.
[55]
In finding
that these documents were not sufficient in themselves, the officer provided an
adequate explanation of her reasons, which must be read as a whole and not
subjected to a microscopic examination.
(iii) The
officer did not err by focusing her analysis on the documentary evidence
relating to country conditions in Guinea
[56]
It was not
until after she explained why the other evidence was not new evidence based on
the criteria in paragraph 113(a) of the Act and her assessment of
the sufficiency of the subsequent evidence that the officer stressed that her
analysis would relate to the documentary evidence on conditions in Guinea (AR, p. 9). This was the
evidence that had not yet been examined and, for all practical purposes, the
only evidence that remained.
[57]
With
regard to general conditions in Guinea,
Mr. Doumbouya had to prove a connection between conditions in his country
and his personal situation, which he failed to do. It will be recalled that his
lack of credibility with regard to his involvement in the RPG, as found by the
RPD, did not have to be questioned.
[58]
As
Mr. Justice Michel Beaudry noted in Ould, supra, citing
with approval the following passage from Jarada v. Canada (Minister of
Citizenship and Immigration), 2005 FC 409, [2005] F.C.J. No. 506 (QL):
[28] That
said, the assessment of the applicant’s potential risk of being persecuted if
he were sent back to his country must be individualized. The fact that the
documentary evidence shows that the human rights situation in a country is
problematic does not necessarily mean there is a risk to a given individual. . . .
[59]
The new
documentary evidence must not merely echo articles previously submitted by
Mr. Doumbouya (Selliah v. Canada (Minister of Citizenship and
Immigration), 2004 FC 872, [2004] F.C.J.
No. 1134, para. 38).
[60]
It has not
been established that the officer's decision on the facts is patently
unreasonable or that the decision considered overall and as a whole is
unreasonable.
[61]
Moreover,
the officer based her conclusion on the documentary evidence showing, inter alia,
that an RPG leader in exile for two years had recently decided to return
to Guinea.
[62]
This
evidence, in itself, supports the officer's conclusion that Mr. Doumbouya
had not discharged his burden of proving an individualized risk and that the
protection provided for in sections 96 and 97 of the Act could not be
granted to him (AR, p. 12).
[63]
In light
of all the evidence and the officer's findings, this conclusion is reasonable.
(a) The
officer did not confuse new evidence and new facts
[64]
The
officer did not confuse new evidence and new facts. It can be seen from
paragraph 3 of the reasons, page 3, to which Mr. Doumbouya
refers, that the officer clearly bore in mind the three categories of
evidence referred to in paragraph 113(a). She explained her
thinking by adding that, to be considered, the evidence in question could not
have been available at the time of the rejection. She noted that the evidence
concerning Mr. Doumbouya's political profile and status had been exactly
the same at the time of the RPD's decision. She stated that,
in her opinion, the RPD had taken that evidence into account (AR, p. 8).
[65]
As already
noted, paragraph 113(a) of the Act concerns new developments, new
risks and information that is significant or significantly different from the
information previously provided. Whether the officer characterized the evidence
as new facts or new evidence has no bearing. She obviously interpreted
paragraph 113(a) correctly. At page 4 of her reasons (AR,
p. 9), she correctly noted that the facts in question had been analysed by
the RPD.
The
officer did not violate the principles of fundamental justice
[66]
Mr. Doumbouya
argues that the officer should have interviewed him before making her PRRA
decision, since, relying on the IRB's findings, she [translation] "obviously questioned" his credibility
on key points of his application (applicant's memorandum of argument,
paras. 15, 71‑73).
[67]
The
officer did not have to hold a hearing in this case, since she herself did not
make any finding concerning Mr. Doumbouya's credibility (Aivani v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1231, [2006]
F.C.J. No. 1559 (QL); Sen v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1435, [2006] F.C.J. No. 1804 (QL),
para. 23).
[68]
The
officer found that there were no new facts or new risks related to
Mr. Doumbouya's involvement in Peace and Love and the RPG and that the RPD
had properly taken account of the facts presented to it in this regard.
[69]
The
officer's decision was based on an assessment of the evidence in light of the
criteria in paragraph 113(a) of the Act and the sufficiency of the
evidence she was able to consider. In the circumstances, Mr. Doumbouya did
not satisfy the statutory tests for holding a hearing set out in section 167 of
the Regulations, as subsequently amended:
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.
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[70]
Here, the
officer did not make any finding concerning Mr. Doumbouya's credibility
but rather found that she could not give him a favourable answer based on the
new evidence and the documents he had submitted.
[71]
In the
circumstances, the PRRA officer did not err by not granting Mr. Doumbouya
a hearing.
(b) Paragraph 113(b) of the Act is
consistent with the principles of fundamental justice
[72]
Mr. Doumbouya
submits that paragraph 113(b) of the Act and section 167 of the
Regulations violate the right of every person to give viva voce evidence
before a decision‑maker. According to Mr. Doumbouya, PRRA applicants are
entitled to a viva voce hearing only in limited circumstances and, given
that this jeopardizes the rights provided for in section 7 of the Charter, Parliament
should not be authorized to deny applicants a full hearing on the merits of
their application for protection in this way.
[73]
It is true
that paragraph 113(b) of the Act clearly establishes that the
Minister or the Minister's delegate is not obliged to grant an interview and
that a hearing is held in the PRRA context only in exceptional circumstances,
on the basis of the factors set out in section 167 of the Regulations. These
tests are conjunctive, meaning that if the applicant’s situation does not meet
one test, the hearing is not held (Aoutlev v. Canada (Minister of
Citizenship and Immigration), 2007 FC 111, [2007] F.C.J. No. 183
(QL), paras. 33, 35; Kaba v. Canada (Minister of
Citizenship and Immigration),
2006 FC 1113, [2006] F.C.J. No. 1420 (QL), para. 25; Kaba v.
Canada (Minister of Citizenship and Immigration), 2007 FC 647, [2007]
F.C.J. No. 874 (QL), para. 50).
[74]
A hearing
may be held where the applicant's credibility is an issue that could result in
a negative PRRA decision. The intent of section 167 of the Regulations is
to allow an applicant to face any credibility concern which may be put in issue
(Lupsa v. Canada (Minister of Citizenship and
Immigration), 2007 FC 311, [2007] F.C.J.
No. 434 (QL), para. 31).
[75]
However,
it must be noted that the right to a hearing is not an absolute right and that,
where the process of reviewing a PRRA application does not include a meeting
between the decision‑maker and the applicant, the process nonetheless
complies with the principles of fundamental justice set out in the Charter if
it allows the applicant to present all of his or her arguments in writing, as
was the case here (Aoutlev, supra, para. 35; Lupsa, supra,
paras. 34‑35; Kaba, 2006, supra,
para. 30).
[76]
Indeed,
the Supreme Court of Canada recognized in Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3 (at para. 121), that a
hearing is not required in every case and that the procedure provided for in
section 113 is consistent with the principles of fundamental justice set out in
the Charter. In the vast majority of cases, it will be enough if the applicant
has an opportunity to make his or her arguments in writing (Aoutlev, supra).
[77]
For these
reasons, paragraph 113(b) of the Act is consistent with the
principles of fundamental justice.
(c) The
officer's reasons are sufficient
[78]
According
to Mr. Doumbouya, [translation]
"insufficient reasons are provided" for the officer's decision.
[79]
To support
this argument, Mr. Doumbouya attacks the following paragraph of the
decision‑maker's reasons, at page 4:
[translation]
. . . Finally, even if the applicant had established that he has been active in
the RPG since his arrival in Canada, I am not of the opinion that
this would be sufficient to establish the existence of a potential risk in
returning.
[80]
Mr. Doumbouya
argues that the decision‑maker did not explain why she considered the
evidence insufficient to establish the existence of a potential risk in
returning.
[81]
In this
regard, it should be noted that the officer stated (at page 7 of her reasons)
that even the president of the RPG, who had been in exile for more than
two years, had returned to his country.
(d) The
officer did not refuse to exercise her jurisdiction
[82]
At
paragraphs 53 and 56 of his memorandum of argument, Mr. Doumbouya
submits that the officer refused to exercise her jurisdiction because she
refused to take account of his arguments concerning errors allegedly made by
the RPD of the IRB in its decision on
his claim.
[83]
The
officer was perfectly correct on this point, since a PRRA officer does not sit
on appeal or review of the RPD's decision (Herrada, supra,
para. 31).
[84]
Accordingly,
the officer did not refuse to exercise her jurisdiction as Mr. Doumbouya
argues.
(e) (f) Alleged
error of law concerning the impact of country conditions
[85]
Mr. Doumbouya
argues that the officer erred in writing the following at page 7 of her
reasons:
[translation]
. . . The general information on country conditions cannot be sufficient to
demonstrate the risk potentially faced by the applicant. It is therefore
from this standpoint that I have dealt with the documents submitted by the
applicant. (Emphasis added)
[86]
There is
no doubt that what the decision‑maker meant by this was that the general
information about Guinea cannot be sufficient to demonstrate the risk
potentially faced by the applicant because that evidence does not indicate that
people who are members of the groups to which the applicant claims to belong
are all persecuted without exception, like the Tutsis in Rwanda or the Isaac
Tribe in Somalia during the respective genocides in those two African countries
in the modern era.
[87]
Accordingly,
the officer did not make the error of law alleged by Mr. Doumbouya.
(g) (h) The
restrictions on admissible evidence set out in paragraph 113(a) of
the Act are constitutional
[88]
According
to Mr. Doumbouya, paragraph 113(a) of the Act violates [translation] "the rules of
fundamental justice and fairness (section 7 of the Charter and Canadian
Bill of Rights)" since it limits the admissible evidence in the PRRA context
to new evidence that arose after the claim was rejected by the RPD, that was not reasonably available at
the time of the rejection or that the applicant could not reasonably have been
expected in the circumstances to have presented to the RPD.
[89]
According
to Mr. Doumbouya, paragraph 113(a), which thus prevents PRRA
applicants from presenting all relevant evidence in support of their
application for protection, requires the decision‑making officer to
exclude evidence that would otherwise be relevant and/or conclusive in
assessing the application for protection.
[90]
Mr. Doumbouya
argues that, since these restrictions have a direct impact on the right of PRRA
applicants to life, liberty and security, paragraph 113(a) is not
consistent with the principles of fundamental justice guaranteed in
section 7 of the Charter. For this reason, he argues, paragraph 113(a)
must be invalidated.
[91]
Paragraph 113(a)
is worded as follows:
113. Consideration of an application
for protection shall be as follows:
(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;
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113. Il est disposé de la demande comme il suit:
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;
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[92]
Parliament
did not act contrary to the principles of fundamental justice or fairness by
limiting the types of evidence a PRRA officer may consider, since the officer's
role is not generally to review the RPD's
findings of fact, including those relating to the applicant's credibility.
Apart from evidence that was not reasonably available at the time of the RPD
hearing or that the applicant could not reasonably have been expected in the
circumstances to have presented to the RPD, the new evidence must therefore relate
only to new developments either in country conditions or in the applicant's
personal situation, for otherwise a PRRA application could easily become an
appeal of the RPD's decision (Elezi, supra, paras. 27, 29).
[93]
Accordingly,
paragraph 113(a) does not deny Mr. Doumbouya the opportunity
to present all evidence relevant to his PRRA.
[94]
This
provision is therefore consistent with section 7 of the Charter and with the Canadian
Bill of Rights, S.C. 1960, c. 44.
(i) The
relationship between PRRA officers and CIC cannot give rise to a reasonable
apprehension that those officers are biased and not independent
[95]
Mr. Doumbouya
submits that the PRRA procedure is constitutionally invalid because it denies
PRRA applicants the right to be heard by an independent and impartial tribunal
with regard to their application for protection.
[96]
In support
of this argument, Mr. Doumbouya simply submits that the pre‑removal
risk assessment is made by a CIC officer.
[97]
However,
Parliament may delegate decision‑making authority to a member of the
executive. Thousands of decisions are made by the executive branch, and those
decisions are subject to intervention by the judicial branch. Decision‑making
by the executive is lawful and not in itself a violation of the Charter (it is
a standard based on the separation of powers among the three branches of
government) (Suresh, supra, para. 121; Satiacum v. Canada
(Minister of Employment and Immigration) (C.A.), [1985] 2 F.C. 430,
p. 437).
[98]
In the
Immigration Manual, paragraph 5.14 of Chapter PP3, Pre-removal Risk
Assessment, published by CIC on December 14, 2005, asks PRRA officers to keep the
following guidelines in mind when making their decisions:
It
is important to show that PRRA officers have carefully analyzed the case,
weighed all of the evidence, and balanced the
treatment they have given to the evidence considered. The decision should
be based on the evidence presented and researched, supported by the factual
weight of the evidence itself. The decision should not be based
on any preconceived bias or information. The research should be fresh
and show that the PRRA officer has addressed the individual case. Each
applicant in the PRRA process is entitled to a fully independent assessment
of the facts.
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Les
agents d’ERAR doivent démontrer qu’ils ont soigneusement analysé le dossier,
apprécié la preuve et considéré équitablement les éléments de preuve
examinés. La décision devrait être fondée sur les éléments de preuve déposés
et documentés et s’appuyer sur les éléments de preuve factuels. Elle ne
doit pas reposer sur la partialité ou sur des préjugés. La recherche doit
être récente et démontrer que l’agent a étudié un dossier précis. Dans le
processus de l'ERAR, chaque demandeur a droit à un examen indépendant complet
des faits.
(Emphasis
added)
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[99]
The
relationship between the decision‑making officer and CIC cannot give rise
to a reasonable apprehension of institutional bias, especially given that, at
the time the impugned decision was made in this case, the PRRA unit at CIC was
insulated from the enforcement and removal functions of the Canada Border
Services Agency (CBSA) (Lai v. Canada (Minister of Citizenship and
Immigration), 2007 FC 361, [2007] F.C.J. No. 476 (QL), para. 74; Kubby
v. Canada (Minister of Citizenship and Immigration), 2006 FC 52, [2007]
F.C.J. No. 172 (QL), para. 9; Say v. Canada (Solicitor General),
2005 FC 739, [2005] F.C.J. No. 931 (QL), paras. 29‑32, aff'd
2005 FCA 422, [2005] F.C.J. No. 2079 (QL)).
[100]
Moreover,
both this Court and the Federal Court of Appeal found that the PRRA unit had
the necessary institutional independence even when it was part of the CBSA rather than CIC (Kubby, supra,
referring to Say, supra).
[101]
PRRA
officers are subject to the constraints imposed by the fact that their
decisions are quasi‑judicial (Lai, supra, para. 75).
[102]
Mr. Doumbouya's
argument based on the bias or lack of independence of PRRA officers is
therefore unfounded.
CONCLUSION
[103]
The
officer's decision in this case contains no reviewable error and is not
vitiated by a lack of natural justice.
[104]
Moreover,
paragraphs 113(a) and (b) of the Act and section 167 of the
Regulations are considered constitutional.
JUDGMENT
THE COURT ORDERS the dismissal of the
application for judicial review and confirms the constitutional validity of
paragraphs 113(a)
and (b) of the Act and section 167 of the Regulations.
"Michel M.J. Shore"
Certified
true translation
Brian
McCordick, Translator