Date: 20071018
Docket: IMM-291-07
Citation:
2007 FC 1063
Ottawa, Ontario, the 18th day of October 2007
Present:
the Honourable Mr.
Justice Shore
BETWEEN:
ABDRAMANE
DIALLO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
PRELIMINARY
[1]
It is the function
of the pre-removal risk assessment (PRRA) officer to assess the evidence
submitted:
[15] Despite the able efforts made by applicant’s counsel to demonstrate
that the officer’s conclusion is unreasonable, the documentary evidence is not
unequivocal. Questions of weight and credibility to be given to the evidence in
risk assessments are entirely within the discretion of the PRRA Officer and,
normally, the Court should not substitute its analysis for that of the Officer
(Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Ferroequus
Railway Co. v. Canadian National Railway Co., [2003] F.C.J. No. 1773 at
para. 14 (F.C.A.) (QL); Khan v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 974 at para. 4
(T.D.) (QL)).
[17] . . . It is sufficient to find here that there is documentary evidence
supporting the Officer’s conclusion. Although there may exist documentary
evidence that presents a somewhat differing position, I am not ready here to
accept that the failure to mention specifically such evidence alters the
Officer’s general conclusion that the applicant would not face a personalized
risk of persecution.
(Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, [2004] F.C.J.
No. 30 (QL).)
INTRODUCTION
[2]
This is an
application for leave from a decision by the decision-maker, C. Rebaza, on November 29, 2006 denying the PRRA application
of the applicant Abdramane Diallo.
FACTS
[3]
Mr. Diallo
is 29 years old and single. He
lived in Mali from the age of nine onwards
and returned to Guinea in 1999. He has two brothers
who it appears are in Guinea with his mother.
[4]
Mr. Diallo
lived at N’Zérékoré, in Guinea, and had a grain business
with his father and his older brother Modibo.
[5]
In
September 2000 threats by the rebels of the Front Uni Révolutionnaire allegedly
caused the inhabitants of Mr. Diallo’s village to flee. In February 2001 he
said he was able to leave the area with his mother and younger brother and go
to Conakry. Mr. Diallo said he then left
for abroad alone, as his mother and brother did not have the means to accompany
him. He said at that time they went to Mali, while his father and older brother
remained in Guinea.
[6]
He said he
left his country on account of [TRANSLATION] “the opposition of the rebels to
the existing government, and in particular the power conferred on the present
President Lassane Conte”. He arrived in Canada on April 6, 2001 and claimed refugee
status on April
23, 2001.
[7]
The
hearing before the Refugee Protection Division (RPD) took place on August 29, 2002. Mr. Diallo alleged a fear of
persecution on account of his membership in a particular social group, a risk
of torture and danger to his life and a risk of being subjected to cruel and
unusual treatment or punishment. He explained he feared being recruited by the
rebels against his will and alleged he also feared the army.
[8]
On
September 23, 2002 the RPD dismissed Mr. Diallo’s
refugee status application on account of a lack of credibility in his
testimony. The panel considered that Mr. Diallo’s inability to prove his
identity had a direct effect on the credibility of the application and
concluded that he was not a Convention refugee nor a person in need of
protection.
[9]
Mr. Diallo
alleged persecution [TRANSLATION] “on account of the deterioration in the
existing situation in Guinea and forced recruitment”. He
also said he feared [TRANSLATION] “threats to his life and safety due to the
risk of attack and situations of distress and destitution and other
disproportionate hardships”. He also said he feared the poverty which was
everywhere in the country and being a victim of attacks as he would be seen as
a foreigner when he arrived.
IMPUGNED DECISION
[10]
The PRRA
officer carefully analyzed the allegations of risk made by Mr. Diallo on the
following grounds:
·
regarding
the difficult general situation in Guinea referred to by the applicant, the
PRRA officer concluded that the applicant had not discharged his burden of
proof of showing that he would incur personal risk: the risk referred to by the
applicant was generalized risk, which did not correspond to the requirements of
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act);
·
the
officer concluded that the applicant had not established he would be targeted
by a specific group, that he belonged to a targeted group or had the profile of
a person likely to so belong: on the objective documentary evidence, the
applicant had not shown he had the profile of specifically targeted persons.
ANALYSIS
Burden
and standard under sections 96 and 97 of Act
[11]
The
Federal Court of Appeal has held that the standard of proof for purposes of
section 97 of the Act is that of a balance of probabilities, as is true of
section 96 of the Act. As to the degree of a risk of torture required by the
phrase “believed on substantial grounds to exist” under paragraph 97(1)(a),
the Court considered that the risk must be more likely than not. The same
degree of risk is required under paragraph 97(1)(b) (Li v. Canada (Minister of Citizenship and
Immigration),
2005 FCA 1, [2005] F.C.J. No. 1 (QL), at paras. 14, 36 and 39).
[12]
Mr. Diallo
had to establish a personal risk in the event of return:
[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
(Ahmad v. M.C.I., [2004] F.C.J. No. 995 (F.C.); Gonulcan v.
M.C.I., [2004] F.C.J. No. 486 (F.C.); Rahim v. M.C.I., [2005]
F.C.J. No. 56, 2005 FC 18 (F.C.)). [Emphasis added.]
(Jarada v. Canada (Minister
of Citizenship and Immigration), 2005 FC 409, [2005] F.C.J. No. 506 (QL); also
Rizkallah v. Canada (Minister of Employment and Immigration), [1992] F.C.J.
No. 412 (QL).)
[13]
Determining
a risk of return is largely a question of fact. This Court therefore should not
intervene unless the PRRA officer’s conclusion is patently unreasonable, and
that is not the case here (Harb v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (QL).)
PRRA officer considered
applicant’s fear of forced recruitment
[14]
Mr. Diallo
said he feared being forcibly recruited if he had to return to Guinea. In his submission, the PRRA
officer failed to consider the documents relating to this fear and did not
analyze the fear.
[15]
In
fact, the fear is expressly mentioned in the PRRA officer’s reasons (reasons,
page 2: applicant’s record, p. 7).
[16]
The
officer noted in his decision that Mr. Diallo had filed a number of documents, but they were
general in nature and he did not show how they applied to his case (reasons,
page 4).
[17]
It
is well settled that as the decision-maker it is the PRRA officer’s function to
determine the weight that should be given to testimony and documentary evidence
filed in support of an application (Singh v. Canada (Minister of Citizenship
and Immigration), [1996] F.C.J. No. 1329 (QL), para. 3).
[18]
The
officer concluded on the basis of the documentary evidence that Mr. Diallo had not shown he
was targeted by a specific group, belonged to a specific group or had the
profile of a person likely to be so.
[19]
The
officer is presumed to have considered all the evidence in the record. He was
entitled to prefer the evidence he cited to that of Mr. Diallo (Florea v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)
(QL); Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J.
No. 1087 (F.C.A.) (QL)).
[20]
In
the case at bar, the officer concluded that Mr. Diallo had not filed sufficient
evidence to establish a risk of persecution, torture, a threat to life or a
risk of cruel or unusual treatment or punishment as required by sections 96 and
97 of the Act.
[21]
Reading
the documentary evidence in the record provides no basis whatever for
concluding that the officer erred in assessing it.
PRRA officer considered applicant’s fear
as national returning from Canada
[22]
As
to Mr. Diallo’s
fear as a national returning from Canada,
it appeared that the PRRA officer considered this fear. However, he noted that
there was nothing in the documentary evidence to confirm it.
[23]
Mr. Diallo
objected that he did not consider his affidavit and that of a friend mentioning
this fear.
[24]
The
case law of this Court indicates that the panel is presumed to have reviewed
all the evidence. Further, the panel is entitled to rely on documentary
evidence in preference to testimony by Mr. Diallo (Florea, supra;
Zhou, supra).
PRRA officer
did not err in analysis of section 96
[25]
The
officer concluded that Mr.
Diallo did not establish he was targeted by a specific group, belonged to a
targeted group or had the profile of a person likely to be so.
[26]
He
further concluded that the alleged risk was a risk to which all citizens of Guinea were
subject.
[27]
Consequently,
Mr. Diallo’s
arguments that the PRRA officer misapplied section 96 of the Act are without
foundation.
Assessment of
evidence
[28]
There
is nothing in Mr.
Diallo’s contentions to show that the PRRA officer failed to consider important
and conclusive evidence, or that he erred in assessing the facts relied on by
the applicant.
[29]
In
the case at bar, the PRRA officer examined all the evidence and arguments made
by Mr. Diallo
and clearly indicated the reasons why he could not draw the conclusions desired
by Mr. Diallo from this evidence.
[30]
Mr. Diallo’s
arguments had to do with the inferences which in his submission the
decision-maker should have drawn from the evidence, which it is not the Court’s
function to review, and not the patently unreasonable nature of the conclusions
by the PRRA officer, which is the only basis on which the Court may intervene
to overturn findings of fact (Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 3, paras. 26 to 41).
[31]
The
respondent maintained that a decision-maker who had to rule on risks incurred by
a person in a given country was entitled to weigh the evidence and to attach
greater weight to sources which he regarded as reliable and credible than to
other evidence (Hassan v. Canada (Minister of Employment and Immigration),
[1992] F.C.J. No. 946 (QL); Tawfik v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 835 (QL); Marchant Andrade v. Canada (Minister
of Citizenship and Immigration), [1997] F.C.J. No. 553 (QL); Owusu v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 681 (QL); Victorov
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 900
(QL)).
[32]
Accordingly,
it was up to the PRRA officer to assess the evidence submitted:
[15] Despite the able efforts made by applicant’s counsel to demonstrate
that the officer’s conclusion is unreasonable, the documentary evidence is not
unequivocal. Questions of weight and credibility to be given to the evidence in
risk assessments are entirely within the discretion of the PRRA Officer and,
normally, the Court should not substitute its analysis for that of the Officer
(Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Ferroequus
Railway Co. v. Canadian National Railway Co., [2003] F.C.J. No. 1773 at
para. 14 (F.C.A.) (QL); Khan v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 974 at para. 4
(T.D.) (QL)).
. . . . .
[17] . . . It is sufficient to find here that there is documentary evidence
supporting the Officer’s conclusion. Although there may exist documentary
evidence that presents a somewhat differing position, I am not ready here to
accept that the failure to mention specifically such evidence alters the
Officer’s general conclusion that the applicant would not face a personalized risk
of persecution.
(Sidhu v. Canada (Minister of
Citizenship and Immigration), 2004 CF 39, [2004] F.C.J. No. 30 (QL).)
[33]
It
is the officer’s function to decide what weight should be given to Mr. Diallo’s allegations,
based on the documentary evidence on the situation in his country. Since there
is no patently unreasonable error in the officer’s assessment, there is no
basis for this Court to intervene.
[34]
In
his argument, although Mr.
Diallo in general expressed his disagreement with the PRRA officer’s comments,
he did not show how the officer’s decision was patently unreasonable.
[35]
It
is quite clear from the decision that the officer took the atmosphere of
insecurity prevailing in Guinea into account. In this regard, the officer
even took into account very recent documentary evidence on the situation in Guinea, as appears
from the list of documents cited in the PRRA decision (comments in record, pp.
6-7 of PRRA decision).
[36]
However,
the PRRA officer correctly found that the risk was generalized in nature, not personal.
[37]
The
PRRA officer even checked whether Mr. Diallo was part of a targeted group, and came to the
conclusion that he was not.
CONCLUSION
[38]
In
view of the foregoing, Mr.
Diallo’s arguments are not such as to persuade this Court that there are valid
grounds for allowing the relief he is seeking.
JUDGMENT
THE COURT ORDERS that
1. the application for judicial review is dismissed;
2. no serious question of general importance is
certified.
“Michel M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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