Date: 20080221
Docket: IMM-3551-07
Citation:
2008 FC 217
Ottawa, Ontario, February 21, 2008
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
OFELIA
ZAKOYAN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision by an
immigration officer (officer) dated July 9, 2007, rejecting the application by
Ms. Ofelia Zakoyan (applicant) for a pre-removal risk assessment (PRRA).
ISSUES
[2]
This
application raises the following issues:
1. Did the officer err in
excluding documents submitted by the applicant because they did not constitute
new evidence within the meaning of paragraph 113(a)?
2. Did the officer err in
referring to the decision by the Refugee Protection Division (RPD)?
3. Did the officer err in
referring to foreign guidelines?
4. Did the officer err when
considering the documentary evidence?
5. Was the officer required, as
part of the PRRA, to review the applicant’s application for permanent residence
based on humanitarian and compassionate considerations?
[3]
For the
following reasons, the application for judicial review will be dismissed.
BACKGROUND
[4]
The
applicant, a 71-year old widow, is of Georgian nationality but Armenian
ethnicity. She arrived in Canada on December 30, 2005, as a temporary resident
for a three-month period. She claimed refugee protection on April 4, 2006.
[5]
She fears
returning to Georgia because she believes that her life there is in danger due
to her Armenian ethnicity and because she is a member of a religious minority.
According to her story, she was attacked, beaten and had her hair pulled by a
neighbour and that neighbour’s boyfriend, who forced her to leave her home. She
received no assistance from her other neighbours or the local police who were
at the scene.
[6]
The day
after the attack, two police officers went to her home and told her that she
would need evidence to support her story but that her neighbours and the local
police refused to testify on her behalf.
[7]
She
subsequently went to live with a friend before leaving for Canada.
[8]
She also
alleged that her son was killed in an anti-Armenian crusade in 1992 and that
her daughter died in 1998 because she did not receive adequate medical care.
IMPUGNED DECISION
[9]
The
officer excluded a number of documents filed by the applicant because she [the officer]
believed they predated the RPD decision. On the other hand, she accepted four
documents that, in her view, constituted new evidence under the Act.
[10]
However,
having completed her analysis of these documents, she determined that the
alleged risks were unfounded.
[11]
The
officer stated that the applicant’s allegations were essentially the same as those
she made before the RPD. The officer indicated that she gave no probative value
to the additions and details of the attacks submitted by counsel for the
applicant because they contradicted the applicant’s statements to the RPD.
[12]
The
officer stated that the documentation she consulted on the current situation of
Armenians in Georgia showed that the main problem is their inability to
communicate in Georgian (the official language of the state) and that they are
under-represented in the various spheres of public life. The officer
acknowledged certain incidents in 2005 that were caused by tensions between
Armenians and Georgians, but none of these incidents occurred in the city where
the applicant lived (Tbilisi). The officer determined that the documentation
she consulted did not show that Armenians in Georgia were persecuted. She
therefore found that the state could provide adequate protection to the
applicant.
ANALYSIS
Standard of review
[13]
I adopt
the pragmatic and functional analysis that was done in Kim v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, 2005 FC
437, paragraph 19, by Mr. Justice Richard Mosley. For questions of law, the
standard of review is correctness, for questions of mixed fact and law,
reasonableness simpliciter, and for questions of fact, patent
unreasonableness.
1.
Did the
officer err in excluding documents submitted by the applicant because they did
not constitute new evidence within the meaning of paragraph 113(a)?
[14]
The
applicant submits that the officer erred in excluding certain documents
presented in support of her PRRA application. In fact, the officer excluded all
the documents that predated the RPD’s rejection of the application. The
application of paragraph 113(a) of the Act to the documents in question
is a mixed question of fact and law, which is reviewable against the standard
of reasonableness simpliciter.
[15]
Paragraph
113(a) of the Act provides 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;
|
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;
|
[16]
First, the
applicant submits that paragraph 113(a) refers to an applicant, not a
decision-maker. In her supplementary memorandum, she maintains that paragraph
113(a) does not refer to documentary evidence on the situation of the
country prior to the rejection of the application. She cites Raza v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 1632, 2007
FCA 385, a decision of the Federal Court of Appeal.
[17]
Second,
she alleges that the
RPD did not make a ruling on the persecution based on religion and, as a
result, the officer was required to consider the documents that were submitted
as new evidence. In the alternative, she says that the officer’s failure to
inform the applicant of the exclusion is a breach of procedural fairness.
[18]
For her
part, the respondent contends that the reasoning followed by the officer to
determine whether the documents constituted new evidence was consistent with
both the statute and the jurisprudence.
[19]
I agree
with the applicant that paragraph 113(a) refers to an applicant, not a
decision-maker. On the other hand, the applicant seems to be indicating that
the officer does not have the authority to exclude documents that do not fall
within paragraph 113(a) because general evidence about a country cannot
be excluded unless the RPD analyzed and considered it. This argument confuses
the officer’s power to exclude any evidence that does not fall within paragraph
113(a) with the officer’s duty to research the particular situation in
the applicant’s country.
[20]
In her
supplementary memorandum, the applicant contends that excluding the documents
based solely on their date is an error. She relies on paragraph 16 of Raza,
above:
[16] One of the arguments considered by
Justice Mosley in this case is whether a document that came into existence
after the RPD hearing is, for that reason alone, “new evidence”. He concluded
that the newness of documentary evidence cannot be tested solely by the date on
which the document was created. I agree. What is important is the event or
circumstance sought to be proved by the documentary evidence.
[21]
However,
the dispute before the Federal Court of Appeal dealt with documents that were
dated after the rejection of the refugee claim. Confirming the opinion of
Mosley J., the Court held that the test for new evidence is not based solely on
the date of the document. An officer may refuse to consider documents created
after the RPD decision as new evidence if those documents contain facts that
are not materially different from the facts that were available when the RPD
made its decision. This reasoning is based on paragraphs 16 and 17 of the Raza
decision, above:
[17] Counsel for Mr. Raza and his family
argued that the evidence sought to be presented in support of a PRRA
application cannot be rejected solely on the basis that it “addresses the same
risk issue” considered by the RPD. I agree. However, a PRRA officer may
properly reject such evidence if it cannot prove that the relevant facts as of
the date of the PRRA application are materially different from the facts as
found by the RPD.
[22]
The case
before us involves documents that were created prior to the RPD hearing. Since
there was no evidence indicating that the impugned documents were not available
to the applicant before the hearing, the officer did not err in excluding them.
[23]
The PRRA’s
mandate to consult documentation about the country where a refugee claimant
comes from is set out in paragraph 11.2 of chapter PP 3 Pre-removal Risk
Assessment (PP 3 Manual):
The PRRA officer will undertake independent research of the
identified issues. The research sources consulted by the PRRA officer will vary
with each individual case. A number of research sources exist and may include
but are not limited by the following: Internet, Human Rights Package,
Contextual Package, Indexed Media Review, “Weekly Media Review” covering the
country or countries to which the applicant could be removed. The decision-maker
may also use other annually published material such as the U.S. Department of
State Country Report on Human Rights Practices, the Lawyers Committee for Human
Rights Critique, Amnesty International Reports, Reporters without Borders, L’État
du monde, Europa World and Human Rights Watch World Report.
Although submissions
may dictate the method of response a PRRA officer uses when conveying a
decision, they should not limit the amount of research the PRRA officer does.
[24]
The
applicant also faults the officer for not ruling on the alleged persecution
based on her religion.
[25]
The
respondent replies that the interview notes of an immigration officer made on
April 4, 2006, when the refugee claim was filed, show that the
applicant stated that she had not experienced any problems because of her
religion (tribunal record, page 277). In any event, the RPD did not believe
that the applicant had been persecuted in her country. Despite that
observation, the officer consulted the documentary evidence about Armenians in
Georgia and noted that their main problem was their inability to communicate in
Georgian (official language of the state).
[26]
With
respect to the procedural fairness argument, the respondent submits that the
officer was not required to inform the applicant about the documents she relied
on in making her decision because they are public documents, available to
everyone. The respondent cites Chen v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 341, 2002 FCT 266:
[22] The Federal Court of Appeal decision in Mancia
v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461
established a framework for approaching this issue. With respect to
documents regarding general country conditions relied upon by the PCDO that
were publicly available at the time the applicant's submissions were made, the
duty of fairness does not require the PCDO to disclose the documents to the
applicant in advance of rendering a decision. The onus is on the applicant
to canvass the documentary evidence and to address any concerns in the
submissions filed with the application.
[23] With respect to documents relied upon by
the PCDO that became publicly available after the filing of the applicant's
submissions, the Court in Mancia identified two criteria that, if
satisfied, would require disclosure. The duty of fairness would require the
disclosure of the documents to the applicant “... where they are novel and
significant and where they evidence changes in the general country conditions
that may affect the decision.”
[Emphasis
added]
[27]
In this
case, the documents that were consulted predate the applicant’s submissions.
Therefore there was no breach of procedural fairness by the officer.
Did the officer err in referring to the
decision by the RPD?
[28]
The
applicant alleges that the officer should not have given so much weight to the
RPD decision. She says that the fact that the application for judicial review
of that decision was dismissed does not in any way confirm the tribunal’s
statements.
[29]
A PRRA
application is not an appeal. In Isomi v. Canada (Minister of Citizenship
and Immigration), [2006] F.C.J. No. 1753, 2006 FC 1394, Mr. Justice Simon
Noël wrote the following:
[17] In addition, the decision to
adopt the same conclusions as the RPD seems to be warranted by the fact that
the application for leave and for judicial review of the RPD’s decision was
dismissed by this Court, given the failure to file the record. I concluded in
the following excerpt from Jacques v. Canada, supra, at
paragraph 22, that a PRRA decision is not an appeal of a decision of
the IRB:
As the respondent argues, a
PRRA officer does not sit on appeal or in judicial review and is therefore
entitled to trust the IRB’s findings in the absence of new evidence.
[18] In concluding on
this point, the PRRA officer did not make any error in adopting the conclusion
of the IRB to the effect that the applicant is a person excluded from Canada
under subparagraphs 1(F)(a) and (c) of the Convention.
[Emphasis
added]
[30]
The officer
did not give any probative value to the applicant’s assertion that she had been
humiliated in the past and that her neighbour had chased her and threatened
her. This statement contradicts what she said before the RPD. This finding is
not unreasonable given that the applicant did not provide any explanation about
these contradictions.
Did the officer err in referring to
foreign guidelines?
[31]
The
applicant submits that the officer should not have consulted the document Operational
Guidance Note: Georgia published by the Country of Origin Information
Service of the UK Home Office, a government department of Great Britain. The
applicant believes that these foreign guidelines may have influenced the
officer’s decision.
[32]
I agree
with the respondent’s response that this document is a source of information
normally used to find out about general country conditions. Therefore, there is
no reviewable error here.
Did the officer err when considering the
documentary evidence?
[33]
The
applicant argues that the officer minimized the applicant’s problems and
objects to the officer’s finding that the main problem is the Armenians’
inability to communicate in the official language of the state.
[34]
I believe
that the applicant is asking this Court to reassess the evidence. The assessment
of facts is completely within the officer’s jurisdiction. The Court will only
intervene if a patently unreasonable error has been shown. Here, the officer’s
findings are supported by the evidence.
Was the officer required, as part of the
PRRA, to review the applicant’s application for permanent residence based on
humanitarian and compassionate considerations?
[36]
The
respondent does not agree. Both parties cite the decision of Mosley J. in Kim,
above, in support of their arguments. However, paragraph 70 seems very clear to
me:
[70] By the same logic, I find that PRRA
officers need not consider humanitarian and compassionate factors in making
their decisions. There is no discretion afforded to a PRRA officer in making a
risk assessment. Either the officer is satisfied that the risk factors alleged
exist and are sufficiently serious to grant protection, or the officer is not
satisfied. The PRRA inquiry and decision-making process does not take into
account factors other than risk. In any case, there is a better forum for the
consideration of humanitarian and compassionate factors: the H & C
determination mechanism. I do not find that the officer erred in law by
refusing to consider humanitarian and compassionate factors in the context of
the PRRA decision.
[37]
Although
the applicant filed an H & C application, that application is not the
subject of this proceeding. In the history of the file, the PRRA officer noted
that the application for permanent residence had been received and that it was
following its course in accordance with the applicable rules. Therefore, in my
view, the officer was not required to deal with this application in the context
of the PRRA.
[38]
The
parties did not propose any serious question of general importance. This record
does not contain any.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the
application for judicial review is dismissed. No question is certified.
“Michel
Beaudry”
Certified true
translation
Mary Jo Egan, LLB
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