Date: 20081104
Docket: IMM-790-08
Citation: 2008 FC 1213
Montréal, Quebec, November 4, 2008
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
LAMINE
YANSANE
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The applicant is seeking the judicial review
under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act), of a decision of a pre-removal
risk assessment officer (PRRA officer) dated November 26, 2007,
refusing his permanent residence application based on humanitarian and
compassionate considerations (HC application) under
section 25 of the Act.
II. The facts
[2]
The
applicant is a young Muslim of Soussou ethnicity, 36 years old, married and the
father of three children. His wife, his three children, his parents and his
siblings still live in Guinea.
[3]
He
alleges that his parents are very pious and traditional. Apart from working as
a teacher at the Koranic school in Bagota, the applicant’s father is also an Imam
with the Kasapo mosque.
[4]
In
February 1994, the applicant was secretly dating Mariama Kalabane, a young
Catholic girl in his neighbourhood. Planning to marry her, he decided to
introduce her to his family, who reacted very badly to the news, particularly
the applicant’s father who categorically opposed his son’s marriage to a woman
of the Catholic faith. Following his uncle’s intervention, the applicant’s
father resigned himself to this marriage after his son promised him that after
his marriage, his son would ensure that his wife converted to Islam. The young
couple therefore married on October 2, 1994, with the consent of the
applicant’s father.
[5]
The
applicant claims however that there was still a great deal of tension between
him, his father and the rest of his family, based on the fact that his wife
remained a Catholic after their marriage. The applicant claims that he and his
wife are regularly the subject of moral and sometimes physical persecution, to
the point that his father would go so far as to pressure him to leave his wife
to marry a cousin, which he opposed. In October 2004, the applicant’s
situation became unbearable to the point that he decided to move to another city
with his wife and children.
[6]
The
applicant gradually became familiar with Catholicism and in the end determined
that this religion was less restrictive than Islam. He therefore decided to
abandon Islam and embrace the Catholic religion, despite his fear of his
family’s reaction and specifically the reaction of his father who in his
opinion would stop at nothing to make him pay for such humiliation.
[7]
On
September 15, 2005, the father and uncle went to the applicant’s house while
the applicant was there with his wife and children to investigate the rumour to
the effect that for some time the applicant had been regularly attending a
Catholic church. The applicant confirmed the rumour, attempted to make his
father understand his reasons and told him that he was seriously intending to
convert to Christianity. His father reacted in such a violent rage that he
shouted abuse and cursed his son, promising him that he would pay with his life
for such humiliation and for betraying Islam. He also reminded his son of an
Islamic principle to the effect that death was the fate of traitors.
[8]
Worried
about the danger which he believed was lying in wait, the applicant hid at the
home of his wife’s older brother, where his wife came to tell him that during
the night his father had come to their house looking for him with five members
of the Kasapo mosque.
[9]
After
sheltering his family in the home of one of his wife’s grandmothers, the applicant
left Guinea on October 15, 2005, with false documents provided by his
brother-in-law and arrived in Canada the next day seeking asylum.
[10]
On
August 16, 2006, the Refugee Protection Division (RPD) of the
Immigration and Refugee Board dismissed the refugee claim, finding that:
. . . the claimant did not discharge his
burden of establishing that there is a “serious possibility” that he would be
persecuted on one of the Convention grounds. Nor has he succeeded in
demonstrating, on a balance of probabilities, that, should he return to Guinea,
he would be personally subjected to a danger of torture, to a risk to his life,
or to a risk of cruel and unusual treatment or punishment.
[11]
The
applicant disputed the RPD decision but, on January 16, 2007, the Court refused
him leave to file an application for judicial review of that decision.
[12]
On
April 2, 2007, the applicant filed an HC application and he then added to his
record a pre-removal risk assessment application. Both of these applications
were heard by the same PRRA officer who dismissed them the same day, i.e. on
November 26, 2007, finding as follows:
[translation]
HC decision
“After considering the evidence and exhibits
provided by the applicant, consulting public sources and applying the criteria
set out in the IP-5 ministerial guidelines, I find that the filing of the visa
application abroad does not amount to unusual, undeserved or disproportionate hardship.”
PRRA decision
“Considering the applicant’s file,
including the PRRA application, the PIF, the decision and the reasons of the
decision of the IRB, the observations of the HC application, while consulting
various public source reference documents on the current situation in Guinea, I
am of the opinion that there is no more than a mere possibility of persecution in
his country as described at section 96 of the IRPA.
The pre-removal risk assessment does not
establish that there are reasonable grounds to believe that he would be subject
to a danger of torture within the meaning of article 1 of the Convention against
Torture or to a risk to their life or to a risk of cruel and unusual treatment
or punishment, as described at section 97 of the IRPA, in the event of his
removal to Guinea.”
[13]
This
application contemplates only the HC decision.
[14]
Finally,
on March 3, 2008, the Court ordered that the applicant’s motion to stay his
removal be dismissed and in its order, the Court was careful to state that the
new evidence filed before it could not be used to establish the existence of a
serious question to debate at the level of this application for judicial
review.
III. Issue
[15]
The
only issue in this case is whether considering the circumstances in evidence
the PRRA officer made a reviewable error in his decision which resulted in the
refusal of the HC application.
IV. Analysis
Standard
of judicial review
[16]
The courts must give deference to the decisions of specialized
administrative tribunals with expertise in the matters in which they exercise
their jurisdiction. The deference to give to a tribunal depends on the
following factors: the existence of a
privative clause; whether the decision-maker has special expertise in a
discrete and special administrative regime; and the nature of the issue (Dunsmuir v. New
Brunswick,
2008 SCC 9 (Dunsmuir),
at paragraph 55).
[17]
The current case law can be applied to
determine which issues require the application of the reasonableness standard
(see Dunsmuir at paragraph 54). The Supreme Court of Canada
determined in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL),
at paragraphs 57-62, that the appropriate standard of review for
applications based on humanitarian and compassionate considerations is that of
reasonableness simpliciter, which since Dunsmuir, supra,
is the standard of reasonableness.
[18]
In this matter, there is no privative clause in
the Act. While it does provide the option of recourse to judicial review, this
cannot be done without leave from the Federal Court. In regard to the
decision-maker’s expertise, in this case the decision-maker is the Minister of
Citizenship and Immigration or his representative. The Minister has some
expertise in regard to immigration tribunals, particularly in regard to
exemptions from the application of the normal requirements. This militates in
favour of deference. Finally, in regard to the nature of the issue, the
decision to grant an exemption based on humanitarian and compassionate
considerations mainly requires the assessment of the facts relating to a
person’s case and has no bearing on the application or the interpretation of
specific rules of law. The fact that this decision is highly discretionary and
factual militates in favour of deference (Barzegaran
v. Canada (Minister of Citizenship and Immigration), 2008
FC 681).
[19]
For
these reasons, the Court will therefore apply the standard of reasonableness
to this case. As such, to justify its intervention, the Court must ask
whether the impugned decision is reasonable, considering its justification
and its whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir,
supra, paragraph 47).
Did the PRRA officer make a reviewable error in refusing
Lamine Yansane’s HC application?
[20]
Subsection 25(1) of the Act provides that the Minister can
grant permanent residence or an exemption from an obligation under the Act where
the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations.
[21]
The examination of such an application is comprised of two
separate assessments. To justify this exemption, the applicant must establish
that his personal situation is such that he would face
unusual, undeserved or disproportionate hardship if he had to apply for
permanent residence from outside Canada. The
decision-maker must therefore first determine whether the applicant provided convincing
evidence justifying an exemption from the obligation to file his permanent
residence application from outside Canada. The decision-maker must then
determine the applicant’s admissibility to Canada (Herrada v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1003, 157 A.C.W.S. (3d) 412).
[22]
The
applicant is alleging a risk of persecution by his family: his father allegedly
threatened to kill him because he did not accept his marriage or his conversion
to Catholicism and the rest of his family has trouble accepting his decision.
[23]
However,
the RPD responsible for hearing the applicant’s refugee claim and analyzing the
same risks and the same facts determined in its decision that the applicant was
not able to establish that there was a “serious possibility” that he would be persecuted. The RPD
further determined that the applicant had not established the probability of a
danger of torture or a risk to his life or to a risk of cruel and unusual
treatment or punishment if he were to return to his native country. This RPD decision
amounts to res judicata in regard to the risks alleged by the applicant as
a basis for his initial refugee application in Canada.
[24]
Further,
the officer responsible for the PRRA determined that [translation] “the filing of the visa application abroad [by
the claimant] does not amount to unusual, undeserved or
disproportionate hardship.”
The
applicant’s integration
[25]
Although
the applicant has lived in Canada since October 16, 2005, his family ties
are nonetheless in Guinea, where his wife and three children live.
[26]
Indeed,
after receiving social assistance benefits for several months (October 2005 to
the beginning of 2006), he began working in 2006 and held several jobs: a
retractable bridge operator since July 2006, after training, and a
part-time salesperson at the Olympic Stadium.
[27]
Considering
that the applicant worked as a mechanic in his country, that he was able to
work in Guinea without difficulty, that all of his family ties were in Guinea
and that his efforts to gain a certain economic independence, while laudable,
are not sources of excessive hardship, the PRRA officer determined there was no
need to grant him an exemption on these grounds.
Applicant’s
fear
[28]
The
fear raised by the applicant in the application for exemption is not at all
different than the one alleged before the RPD in support of his refugee
application as assessed by this Court in January 2007.
[29]
Essentially,
the applicant fears his father, an Imam, as well as other members of his family,
because of his marriage to a Catholic in 1994 and his decision near the end
of 2005 to himself convert to Catholicism. Before the PRRA officer he
added to this evidence the realization in 2007 of this conversion by his
baptism on Canadian soil, as well as his wife’s move, after he left Guinea, to
place her and his children in the safety of his in-laws.
[30]
With
the exception of the applicant’s baptism in 2007 and the move of his wife
and children after his departure, the RPD considered in its decision all of
these elements before determining why it could not lend credence to the
applicant’s story.
[31]
The
purpose of the PRRA is not to repeat the same exercise or to sit on appeal of
an PRD decision which has the effect of res judicata after the Court’s
refusal to grant leave to submit the decision to judicial review (Ahmed v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 483, [2000]
F.C.J. No. 1365 (QL), at paragraph 27; Hussain v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 751
(F.C.T.D.) (QL), at paragraph 12).
[32]
The PRRA officer observes that the applicant raised essentially
the same risks in his HC application and PRRA as he did in his refugee claim
before the RPD. As the RPD found that the applicant lacked credibility, the
PRRA officer determined that the applicant had not adduced sufficient evidence
to establish that his safety and his life would be in danger in his country.
[33]
The
applicant reiterates nevertheless that he would be killed by his father if he
were to return to Guinea. But such a statement does not reflect the prevailing
situation in Guinea from 1994 to 2005, which indeed justifies the RPD
in its decision to find him lacking in credibility.
[34]
Regarding
the fact that the applicant’s situation was allegedly [translation] “aggravated” following his baptism, the PRRA
officer determined, in his decision, that the official realization of his conversion
initiated and publicly unveiled in Guinea does not add anything new to the
elements of risk already raised.
[35]
With
regard to respecting the freedom of religion in Guinea, the evidence
establishes the secularity of the state of Guinea, the constitution of which
provides for the freedom of religion. The PRRA decision states that the
government does tolerate religious abuses in the government or in the private
sphere. According to the documentary evidence, discrimination or violence in
Guinea does not result from religion. Although the situation is not perfect,
the Christians have freedom of religion in Guinea even though they only make up
10% of the population.
[36]
Bear
in mind that the Court did not deem it appropriate to
give leave for judicial review of the RPD’s decision. Therefore, the RPD’s
finding on the applicant’s lack of credibility and on the facts predating its
decision remain. Accordingly, at the time that it was determined that it would
not cause the applicant unusual, undeserved or disproportionate hardship
to file his visa application from abroad, the PRRA officer, like
the RPD before him, could have had good reason to doubt that the safety and
life of the applicant would be at risk if he were to return to Guinea.
Introduction
of new evidence
[37]
The
applicant filed with his supplemental affidavit the additional evidence filed
in support of his application to stay his deportation and his application for
review of the HC decision. Besides the fact that this additional evidence
appears to set out the same risks already submitted before the RPD and the PRRA
officer, but in a different guise, the applicant has filed them after the CH
and PRRA decisions and in the context of this judicial review proceeding.
[38]
The
Court cannot at this stage allow the applicant to proceed as such, by raising
evidence that was not before the administrative decision-maker whose decision
is the subject of this proceeding, even if this new evidence does not add any
new element to the risks already assessed by the RPD
and the PRRA officer. The applicant is perhaps not aware, but his
counsel cannot disregard it: this is a fundamental principle. Even more so that
the applicant’s supplemental affidavit, filed and undoubtedly prepared for him
by his counsel, does not set out any exceptional circumstances or prior leave
which could justify proceeding as such (Bekker v. Canada, (2004) 323 NR
195 (FCA), at paragraph 11; Samsonov v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1158, at paragraph 7; Asafov v.
Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 713 (FC), at paragraph 2).
[40]
For
these reasons, the Court maintains the respondent’s objection to the production
of these exhibits at this stage of the proceeding; and since this evidence
becomes inadmissible in the context of this judicial review, there is no need
to elaborate further, except to say that it is at best a repetition of the same
risks assessed by the RPD and the PRRA officer in finding as they did, in a
different guise.
[41]
Accordingly,
after reviewing the evidence in the record and the HC
decision at issue, and having considered the parties’ arguments, the Court
finds that the PRRA officer could reasonably find that the HC application and
the PRRA application should be refused, taking into account that the RPD
observed that the applicant was completely lacking in credibility and further
relying on its own analysis of the new evidence added since, namely the confirmation
of the applicant’s adherence to Catholicism by the baptism
on Canadian soil as well as the recent move of his wife and children to escape
his in-laws.
[42]
The
HC decision contemplated by this proceeding is justified and falls within the
possible and acceptable outcomes in fact and in law, such that this Court
cannot qualify it as unreasonable. Quite the contrary. As a result of this
finding, this application for judicial review is dismissed.
V. Question for
certification
[43]
The
applicant proposes the following question for certification:
[translation]
Is new evidence obtained after an
administrative decision based on humanitarian and compassionate considerations
or on the risk of return which is relevant and conclusive on a central issue
admissible on judicial review of the decision of the immigration officer
pursuant to section 24 of the Canadian Charter of Rights and Freedoms
when seeking to establish a Charter violation?
[44]
The
judgment on an application for judicial review may be made to the Federal
Court of Appeal only when, in rendering judgment, the judge certifies that a
serious question of general importance is involved and states the question (paragraph
74(d) of the Act).
[45]
However,
for the Court to agree to certify a question, it is not sufficient to submit
that the question has never been decided; the proposed question must also be
“determinative of the appeal … [the certification process must
not be used] as a tool to obtain from the Court of Appeal declaratory judgments
on fine questions which need not be decided in order to dispose of a particular
case” [Emphasis added.] (Canada (Minister of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637 (F.C.A.) (QL), at
paragraph 4).
[46]
The
applicant argues that [translation]
“deportation
with substantial risk of torture or risk to his life violates the guarantees
under section 12 of the Canadian Charter of Rights and Freedoms (Charter).”
He alleges that this situation justifies the reconsideration of new evidence in
the context of a judicial review in Federal Court.
[47]
Bear
in mind that the PRRA officer did not find that the applicant was exposed to a
risk of torture or risk to life in Guinea and that the Court has already
determined that there are no grounds to intervene with respect to this finding,
which it deems reasonable. But even if there were grounds for intervention, this
Court could have intervened without new evidence or without referring to
section 24 of the Charter.
[48]
The
question to certify cannot be determinative on the appeal since it was never
submitted to the PRRA officer, all the more so because the applicant sought to
offer this evidence obtained after the HC and PRRA decisions.
[49]
Further
and contrary to the arguments of the applicant’s counsel, the question is not
new and has already been decided, need it be repeated, by this Court as well as
by the Court of Appeal (see Bekker, Samsonov , and Asafov, supra).
[50]
It
appears that yes, since the Court is aware that in Isomi v. M.C.I.
(2006) FC 1394, the same counsel, Mr. Istvanffy, sought to file new
evidence and certification of a similar question in the context of the judicial
review of a PRRA decision. Yet this Court, per Mr. Justice Simon Noël,
told him that the reference to section 24 of the Charter in no way alters
the jurisdiction of the Federal Court and the rule in the case law that new
evidence cannot be admitted in the context of a judicial review, without
changing the role of the judge sitting in a similar matter.
[51]
The
duties and obligations of Mr. Istvanffy toward his client do not as such
dispense him of his duties and obligations to the Court. As an officer of the
Court, he could therefore not disregard as he did in this case a well‑established
rule in the case law which indeed had been explained to him on more than one
occasion. Accordingly, we point out to counsel several requirements of the code
of ethics of counsel who are members of the Barreau du Québec:
1. An advocate
shall uphold respect for the law. He must not utter words or
publish writings contrary to laws (article 2.01);
2.
The advocate must avoid any procedure of a purely dilatory nature (article 2.05).
Improperly stating before the
Court that one of the issues has not been decided, and encouraging a party to
file documents which simply present in different packaging the same risk
factors already considered by the previous decision-maker does not appear to
comply with these requirements.
[52]
It
is also appropriate to point out to him that there is an alternative to the option
chosen in this case, namely to file a new exemption application pursuant to
section 25 of the IRPA, to the extent that it truly raises new evidence
and not just the same risk factors already considered.
[53]
The
applicant’s use of the principles arising from the Charter do not as such give
rise to an entitlement to have the proposed question certified, since in this
case the application for judicial review cannot be assimilated to an appeal and
must be assessed solely on the basis of the evidence already submitted to the
first decision-maker.
[54]
In
short, the question is not determinative to the appeal: it does not transcend
the interests of the parties, it does not address elements with significant
consequences since the applicant is not deprived of recourse, and further the
underlying principle is not new since it had already been decided by the Court
as well as the Federal Court of Appeal. Accordingly, the Court will refuse to
certify the question.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review and REFUSES to certify the question
proposed by the applicant.
“Maurice E. Lagacé”
Certified true translation
Kelley Harvey, BA, BCL, LLB
Email this Content