the PRRA application was the abuse suffered by
all members of the family. In a decision dated May 15, 2008, a PRRA
Officer rejected their claim for protection. The Applicants seek judicial
review of the decision.
II. Preliminary
Matters
A. The minor Applicants’ claims
[2]
The
situation with respect to the minor Applicants was clarified at the hearing of
this matter.
[3]
Samuel
is a citizen of both the United
States
and Botswana. The Applicants concede
that any PRRA would be made against the United States. Accordingly, there is almost no
likelihood that he could demonstrate the need for protection in the United States. Accordingly, the
application for judicial review will be dismissed against Samuel.
[4]
On
the other hand, David is only a citizen of Botswana. The Respondent acknowledges that the
reasons of the PRRA Officer, insofar as they relate to David, are inadequate. I
agree and the application for judicial review will be allowed in respect of
David.
B. H&C approval in principle
[5]
Since
the commencement of this application for judicial review, the Applicants have
received approval-in-principle for permanent residence in Canada on humanitarian and compassionate
(H&C) grounds. Consequently, a negative decision in this judicial review
will not result in a removal of the Applicants to Botswana. I questioned whether
the H&C approval renders the judicial review moot or, if not, why I would
not simply adjourn the hearing. I was persuaded by the Applicants’ counsel that
I should deal with this application in spite of the approval-in-principle.
[6]
The
main reason for doing so relates to the age of a daughter who currently resides
in the United
States. It
will take one to two years to finalize the medical, security and criminality
clearances for permanent residence under the H&C class. During that time,
the daughter in the United
States
will turn 22 and, thus, be ineligible for sponsorship. However, should Ms. Mooketsi
be successful in this judicial review and in reconsideration of her PRRA, she
may obtain protected person status prior to the daughter’s 22nd
birthday and, accordingly, be able to sponsor her daughter.
[7]
While
I express no view of whether the foregoing is an accurate summary of the
immigration procedures in play, I am persuaded that I have sufficient reason to
consider Ms. Mooketsi’s application on its merits.
III. Issues
[8]
The
issues raised by this application, in respect of Ms. Mooketsi are as follows:
1.
Did
the Officer err by ignoring and misapprehending the “new evidence” that
countered the credibility findings of the RPD?
2.
Did
the Officer err by rejecting certain of the evidence submitted on the basis
that it was not “new evidence” under s. 113(a) of Immigration and Refugee
Protection Act, S.C. 2001, c.27 (IRPA)?
IV. Analysis
A. General
[9]
In making an application for protection under the PRRA process, a
rejected refugee claimant may submit “new evidence”. Section 113(a) of IRPA
provides that:
|
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;
|
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;
|
[10]
The
leading authority on the assessment of evidence submitted in a PRRA application
is Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, 370 N.R. 344. As stated by Justice Sharlow,
in that decision at paragraph 12, “A PRRA application by a failed refugee
claimant is not an appeal or reconsideration of the decision of the RPD to
reject a claim for refugee protection”.
[11]
The Raza
decision clarifies the limits on “new evidence” that may be considered under s. 113(a).
In paragraph 13, Justice Sharlow observes the overarching principle that a negative
RPD decision must be respected by the PRRA Officer “unless there is new
evidence of facts that might have affected the outcome of the RPD hearing if
the evidence had been presented to the RPD”. She follows this with a list of
questions or “grounds” upon which evidence submitted for a PRRA may be
rejected. In paragraph 15, Justice Sharlow states the following:
I
do not suggest that the questions above must be asked in any particular order,
or that in every case the PRRA Officer must ask each question. What is
important is that the PRRA Officer must consider all evidence that is
presented, unless it is excluded on one of the grounds stated in paragraph [13]
above. [Emphasis added]
[12]
In
this case, the Applicants submitted extensive evidence to refute the conclusion
of the RPD that the Applicants’ claim of domestic violence was not credible.
This evidence was reviewed by the Officer who determined that some of the
evidence was “new” and that some of it did not qualify under s. 113(a). The
Applicants raise issues with respect to both categories of evidence.
B. Did the PRRA Officer misapprehend
the evidence accepted as “new”?
[13]
As
noted above, the RPD rejected the Applicants’ claim for protection. In short,
the RPD, based on numerous implausibilities and inconsistencies, did not
believe the Applicants’ claim of domestic abuse. One piece of evidence that was
before the RPD was a US court order related to
custody of the principal Applicant’s other three children who were (and remain)
in the United
States. In
its decision, the RPD commented on the lack of information underlying this
order. The underlying documents were presented in the submissions to the PRRA
Officer and accepted as new evidence.
[14]
In
dealing with this evidence, the PRRA Officer wrote:
I
give minimal weight to the documents used in support of the custody order as
they detail accounts of the abuse suffered by the children at the hands of
their father, however there is insufficient objective evidence there was abuse
toward the principal applicant. Furthermore, although the RPD was not aware of
all the details they were informed of the Court’s decision to grant custody of
the children to the court, and were also aware the applicant provided testimony
about the husband’s abuse toward the children (in the USA).
I
do note in the eldest daughter, Prudence’s affidavit she stated “my mother has
also been the focus of my father’s wrath and thus she has never been able to
protect us from him.” However, the affidavit provides no other details and this
statement on its own is insufficient objective evidence to rebut the findings
of the RPD.
[15]
In
my opinion, the Officer’s conclusion was reasonable based on the evidence.
Apart from the affidavit evidence of Ms. Mooketsi’s sister, in which she
claimed to have witnessed the abuse, there was little direct evidence that Mr.
Mooketsi had been physically abusive towards the principal Applicant. Rather,
the evidence was directed towards the severe abuse that the three U.S.-based
daughters had endured, Ms. Mooketsi’s inability to prevent this and the
multitude of instances in which the daughters had been abandoned by their
parents.
[16]
Based
on this new evidence, it was open for the Officer to conclude that there was
insufficient objective evidence to rebut the findings of the RPD. The decision
fell, in my view, within the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190
at para. 47).
C. Did the Board err by rejecting evidence?
[17]
The
Officer rejected much of the evidence filed because it did not qualify as “new
evidence”. The Applicants assert that much of the rejected evidence contradicts
the credibility finding – a finding of fact – of the RPD. This is one of the
grounds, the Applicants submit, upon which evidence ought to be admitted as
“new”, as found in Raza, above, at paragraph 13(3)(c).
[18]
In
my view, the Applicants have misapplied the Court of Appeal decision in Raza.
I do not read the decision and, in particular paragraph 13, as a statement to
the effect that, if any one of the questions posed can be answered in the
positive, the evidence is “new”. As noted in paragraph 15 of Raza
decision, evidence must be considered “unless it is excluded on one of
the grounds stated in paragraph [13] above”. Thus, if the “new” evidence could
have been presented at the RPD hearing, then s. 113(a) requires that such
evidence be rejected, even if it contradicts a finding of fact by the RPD. This
is reinforced by paragraph 13(5)(a) of the Raza decision.
[19]
After
examining each and every piece of the rejected evidence which has been raised
on this juridical review, I find that the PRRA Officer’s application of s.
113(a) to the evidence was reasonable. Ms. Mooketsi’s submissions were not new.
They did not indicate a new risk apart from repeating Ms. Mooketsi’s own claims
of the spousal abuse, which the RPD had found to be not credible. Furthermore,
the evidence from various third parties either repeated Ms. Mooketsi’s own
claims as were told to them or was evidence that could have reasonably been
made available to the RDP.
[20]
I
conclude that the Officer’s rejection of the newly submitted evidence was
reasonable.
V. Conclusion
[21]
In
summary, I conclude that the application for judicial review of the decision of
the PRRA Officer:
1.
Will
be allowed in respect of David Joel; and
2.
Will
be dismissed in respect of Samuel Mooketsi and Priscilla Mooketsi.
[22]
Neither
party proposes a question for certification and none will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
The application for judicial review of the decision, in respect of the
Applicant, David Joel; this matter will be referred back to a different PRRA
Officer for reconsideration;
2.
The application for judicial review, in respect of Priscilla Mooketsi
and Samuel Mooketsi, is dismissed; and
3.
No question of general importance is certified.
“Judith
A. Snider”
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