Date:
20080605
Docket:
IMM-3830-07
Citation: 2008 FC 705
Ottawa,
Ontario, June 5, 2008
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
Sophia ESANGBEDO OBIDIGBO and
Chuwkumomso ESANGBEDO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This is an
application for judicial review of a decision by a pre-removal risk assessment
officer (PRRA officer) dated August 8, 2007, refusing the pre-removal
risk assessment application filed by the applicants.
II. Factual background
[2]
The female
applicant was born in Benin, Nigeria, on March 1, 1982,
and is a Nigerian citizen.
[3]
The male
applicant is the female applicant’s son, who was born on March 30, 2003,
in Dublin, Ireland, and is an Irish citizen.
[4]
In
August 1999, when the female applicant was 17 years old, her father told
her that she had been promised in marriage. However, she refused the marriage.
[5]
In
December 1999, the female applicant’s father allegedly found out that she
was pregnant. Her father confined and beat her, causing her to lose the baby.
[6]
In January
2000, with the help of her sister, the female applicant saved herself and went
to live with her spouse in Lagos.
[7]
The female
applicant’s father then allegedly disowned her. She apparently found out that
her father was furious that she had run away and that her spouse had not asked
his permission to marry his daughter. During her first pregnancy, he had
allegedly asked where his grandson was to be born. Afraid for her own safety
and that of her unborn child, the female applicant allegedly left Nigeria in
March 2003 to seek refuge in Ireland.
[8]
On
March 30, 2003, the female applicant gave birth to her first son, the
male applicant. He apparently had health problems that his biological father
allegedly attributed to the Irish climate. He then allegedly convinced the
female applicant to return to Nigeria in January 2004.
Consequently, the female applicant abandoned her refugee claim in Ireland and returned to live in Lagos in her spouse’s apartment.
[9]
In
May 2004, the father of the female applicant’s spouse allegedly died.
Following a disagreement as to the inheritance, the female applicant’s spouse
apparently received death threats from his half-brothers. In July 2004,
her spouse allegedly disappeared.
[10]
In
August 2004, some of the female applicant’s spouse’s half-brothers
allegedly came to see her at her apartment in order to obtain documents
concerning their father’s property. She did not know where to find the documents
and apparently received death threats. That same day, two strangers allegedly robbed
and raped her in her apartment. She did not file a complaint with the police.
[11]
Following
that incident, the female applicant went to meet with her spouse’s family. The
family then allegedly told her that they no longer recognized the child she was
carrying (she was then pregnant with her second son), and given that she was
not legally married to her spouse, threatened to throw her out of the
apartment. A few days later, her spouse’s family carried out their threats. The
female applicant then sought refuge in a church with the male applicant and
allegedly arranged to leave Nigeria.
[12]
On
September 4, 2004, the female applicant left Nigeria alone to travel to the United States. She allegedly arrived in Canada the next day when she was
seven months pregnant. She was detained upon her arrival in Canada until November 2004.
[13]
On
November 26, 2004, the female applicant gave birth to her second son in
Montréal.
[14]
While the
female applicant was in Canada, the male applicant stayed at
the church in Nigeria. However, following threats
from his biological father’s family, the male applicant allegedly left Nigeria
for Italy with a member of the
religious congregation. He apparently stayed in Italy until his arrival in Toronto on May 9, 2005.
[15]
The
Immigration and Refugee Board’s Refugee Protection Division (RPD) rejected the
female applicant’s refugee protection claim on May 30, 2005, and the
male applicant’s on December 7, 2005.
[16]
The
applicants filed applications for leave and for judicial review with the
Federal Court for each of these two decisions. The female applicant’s
application was dismissed on August 25, 2005, and the male
applicant’s on April 7, 2006.
[17]
The
applicants filed an application for humanitarian and compassionate
consideration (H&C application) on February 23, 2006.
[18]
The
applicants filed an application for pre-removal risk assessment (PRRA
application) on December 21, 2006.
[19]
The PRRA
and H&C applications were refused on August 8, 2007.
[20]
An
application for leave and for judicial review of the H&C decision was filed
on September 20, 2007, and dismissed on February 8, 2008.
[21]
This
application challenging the decision refusing the PRRA application was filed on
September 19, 2007.
III. Impugned decision
(a)
The
applicants stated the same risks and relied on the same facts as were raised
before the RPD;
(b)
The female
applicant’s identity was established because she filed an Emergency Travel
Certificate (ETC) dated October 14, 2005. However, that document does
not provide any new information or evidence concerning the risks alleged in the
PRRA application;
(c)
The female
applicant’s affidavit dated July 20, 2005, commented on the RPD
decision and provided no new information or evidence concerning the risks
alleged in the PRRA application;
(d)
No weight
was attached to the letters from the McGill University Health Centre concerning
the state of the male applicant’s health because they contain no new
information concerning the alleged risks and because state of health is not a
factor to be considered in PRRA applications since it does not correspond to
the risks defined in sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S.C. 1985, c. I‑2 (the Act);
(e)
The
letters of people involved in or of witnesses to the applicants’ departure from
Nigeria are self-serving evidence,
and limited probative value was attached to them;
(f)
There is
unsatisfactory evidence of the violent events that triggered the applicants’
departure from Nigeria and of the existence of
personal risks to their lives and safety;
(g)
The
objective evidence indicates that the overall situation from the time of the
applicants’ departure from Nigeria until now still raises
concerns;
(h)
The
applicants were unable to prove that it would have been impossible for them to
seek an internal flight alternative in their countries. They were also unable
to demonstrate that the female applicant’s in-laws could track them everywhere
in Nigeria.
[23]
For these
reasons, the PRRA officer found that the applicants had failed to demonstrate
that they would be persecuted on their return to Nigeria or that they would be in danger of torture
or subject to a risk to their lives or to a risk of cruel and unusual treatment
or punishment as defined in the Act. The application was refused.
IV. Statutory framework
[24]
The
relevant provisions of the Immigration and Refugee Protection Act are provided
in the Annex.
V. Issues
[25]
The
applicant is raising the following issues:
(a) Did the
PRRA officer infringe on the female applicant’s fundamental rights by rendering
her decision in French, given that the female applicant does not understand
French?
(b) Did the
PRRA officer err in not taking into account the best interests of the children
and the family unit when she rendered her decision?
(c) Was the
PRRA officer’s decision made based on an erroneous finding of fact or without
regard for the evidence before her?
VI. Standard of review
[26]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada found that there
should be only two standards of review: correctness and reasonableness. The
Court indicated that the standard of correctness must be maintained in respect
of jurisdictional and some other questions of law (see Dunsmuir at
paragraph 50). When applying the correctness
standard, a reviewing court will not show deference to the decision-maker’s
reasoning process; it will rather undertake its own analysis to decide whether
the decision is correct.
[27]
The
Supreme Court also indicated that, in
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes, which are defensible in respect of the
facts and law (see Dunsmuir at paragraph 47).
[28]
Guidance with regard to the
questions that will be reviewed on a reasonableness standard can be found in
the existing case law (see Dunsmuir at paragraph 54). The following
factors will determine whether deference ought to be given to a tribunal:
whether there is a privative clause, whether the decision-maker has special
expertise in a discrete and special administrative regime and what the nature
of the question of law is (see Dunsmuir at paragraph 55).
[29]
In Kim
v. Canada (Minister of Citizenship and
Immigration),
2005 FC 437, Mr. Justice Mosley applied the pragmatic and functional approach
comprehensively to determine the standard of review applicable to PRRA
officers’ decisions. He found as follows at paragraph 19:
[19]
Combining and balancing all of these factors, I
conclude that in the judicial review of PRRA decisions the appropriate standard
of review for questions of fact should generally be patent unreasonableness, for
questions of mixed law and fact, reasonableness simpliciter, and for
questions of law, correctness. I am fortified in my conclusions by the
positions taken by my colleagues in other recent PRRA decisions. [Emphasis
added.]
[30]
The Act does not provide for the right to appeal
a PRRA officer’s decision. Although it provides the possibility of recourse to
judicial review, it can only be done with the leave of the Federal Court.
Furthermore, it contains no privative or limitation clause. Concerning the
nature of the issue, the PRRA officer’s decision is entirely based on a
question of mixed law and fact, which militates in favour of certain deference
(Haque v. Canada (Minister of Citizenship and Immigration), 2007 FC 1312 at paragraph 14). The expertise
of the PRRA officer is variable, depending on the nature of the question
considered (Kim, above, at
paragraphs 16 through 19). Somewhat more
deference should nonetheless be shown in cases where the PRRA officer is
dealing with questions of mixed fact and law for which they can be expected to
have some knowledge, training and experience, such as the application of the
legal definition of protected person to the facts of a given case.
[31]
The first issue in this case is one that raises
a question of procedural fairness and natural justice. A decision resulting
from an unfair proceeding, that is, one that breaches procedural fairness,
would be set aside.
[32]
The second issue essentially
raises the question of whether the PRRA officer applied the proper test in the
context of the PRRA application, namely, considering the best interests of the
female applicant’s children. In my opinion, this is a question of law,
reviewable on the correctness standard.
[33]
The third issue is basically
a question of fact. The applicable standard of review is reasonableness.
VII. Analysis
A. Did the PRRA
officer infringe on the female applicant’s fundamental rights by rendering her
decision in French, given that the female applicant does not understand French?
[34]
No one is challenging the
fact that the applicants had proceeded exclusively in English until the
decision dated August 8, 2007, and that the PRRA decision was
rendered in French. However, the application for leave indicates that the
female applicant received the written reasons for the decision on September 7, 2007,
and that she did not request that an English version of the decision be sent to
her. The female applicant’s counsel merely said that [Translation] “the female applicant’s fundamental rights were
infringed on because she received a decision only in French, without a
translation, which resulted in her being unable to understand the reasons
without an interpreter . . . ” without stating the type of harm she had
supposedly suffered. It should be noted that the letter that was sent with the
PRRA decision was in English and that, a priori, the language of the
PRRA decision did not seem to have hindered the female applicant from finding
out what it said, despite having to use an interpreter, and of then undertaking
legal proceedings within the prescribed time limit. Considering that the female
applicant did not request a translation of the reasons for the officer’s
decision and that she suffered no harm (Yassine
v. Canada (Minister of Employment and Immigration, (1994) 172 N.R. 308 (F.C.A.) [1994] F.C.J. No.
949 (QL)), I am of the opinion that there was no breach of the duty of
procedural fairness in the circumstances. Consequently, this Court’s
intervention is not warranted for this reason.
B. Did the PRRA officer err in
not taking into account the best interests of the children and the family unit
when she rendered her decision?
[35]
The female applicant is claiming that the PRRA
officer failed to consider the best interests of her two children, who are very
young and are of Irish and Canadian nationality respectively. The female
applicant’s claims concerning the best interests of her children and of the family
unit and the various humanitarian and compassionate considerations are factors
to be considered within the scope of an H&C application. In addition, the
Federal Court of Appeal has ruled, in Varga v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 394, [2006] F.C.J. No. 1828 (QL) at
paragraph 20, that a PRRA officer has no obligation to consider those
interests when conducting a PRRA of at least one of the children’s parents. See
also Toure v. Canada (Minister of Citizenship and Immigration), 2007 FC 480 at paragraph 19; Martinez
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1660 at paragraph 12, and Sherzady
v. Canada (Minister of Citizenship and Immigration), 2005 FC 516 at paragraphs 14 to 15.
[36]
Therefore, I am of the opinion that the female
applicant’s claims concerning the second issue have no merit in the context of
a PRRA application.
C. Was the PRRA
officer’s decision made based on an erroneous finding of fact or without regard
for the evidence before her?
[37]
The risks raised by the female applicant in her
PRRA application are based on allegations of persecution surrounding the
settlement of the estate of the father of her spouse, who has disappeared, and
of her marginalization as a single woman with two children in Nigeria.
[38]
In support of their PRRA application, the
applicants repeated the same facts and fears previously examined by the RPD.
The RPD found that the evidence submitted was not credible and did not believe
the allegations concerning the risks to the lives and safety of the applicants.
[39]
Since the RPD rejected their refugee protection
claim, the applicants have submitted no new evidence or facts that would have
supported the alleged personal risks. It was up to the PRRA officer to
determine the weight to be attached to the various pieces of evidence filed in
support of the PRRA application, including the letters of support (Singh v.
Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1329
(QL) at paragraph 3; Diallo v. Canada (Minister of Citizenship and
Immigration), 2007 FC 1063 at paragraph 17, and Malhi v. Canada
(Minister of Citizenship and Immigration), 2004 FC 802 at paragraph 6). The
PRRA officer did not err in the assessment of that evidence. In their claims,
the applicants are essentially expressing their disagreement with the PRRA
officer’s findings. In my opinion, the applicants have not demonstrated in what
way these findings pertaining to the risks to their lives and safety were
unreasonable. Consequently, the Court’s intervention is not warranted.
[40]
Despite the lack of new evidence and facts, the
PRRA officer conducted an analysis of the contemporaneous documentary evidence
on the situation in Nigeria.
The task of weighing this evidence and attaching more weight to evidence from
sources that she believed to be more reliable and credible than to other
evidence was the responsibility of the PRRA officer, after a thorough examination
of that evidence. I am of the opinion that the PRRA officer made no errors in
her assessment of that evidence.
[41]
I also note that the female applicant did not
challenge the PRRA officer’s finding that an internal flight alternative is
possible for her in Nigeria.
That finding alone is sufficient for the PRRA application to be refused.
VIII. Conclusion
[42]
For these
reasons, I find that the PRRA officer’s decision is not unreasonable. It falls within a range of possible, acceptable
outcomes, which are defensible in respect of the facts and law. Consequently,
the application for judicial review will be dismissed.
[43]
The
parties did not propose a serious question of general importance to be
certified as set out in paragraph 74(d) of the Act. I am satisfied
that this case raises no such question. No question will therefore be
certified.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that
1.
The application for judicial review is
dismissed.
2.
No serious question of general importance is
certified.
“Edmond P. Blanchard”
Certified
true translation
Susan
Deichert, Reviser
Annex
Immigration and Refugee Protection Act, R.S.C. 1985,
c. I-2:
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96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A person in need of protection is a
person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person in Canada who
is a member of a class of persons prescribed by the regulations as being in
need of protection is also a person in need of protection.
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;
(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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96. A qualité de réfugié au sens de la Convention —
le réfugié — la personne qui, craignant avec raison d’être persécutée du fait
de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve
hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du
fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne
qui se trouve au Canada et serait personnellement, par son renvoi vers tout
pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans
lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de
le croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de
traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut
ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est
exposée en tout lieu de ce pays alors que d’autres personnes originaires de
ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace
ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au
mépris des normes internationales — et inhérents à celles-ci ou occasionnés
par elles,
(iv) la menace ou
le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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;
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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