Date:
20130715
Docket:
IMM-10931-12
Citation:
2013 FC 791
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
July 15, 2013
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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FRANCIS MBAIOREMEM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review submitted under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) of a decision by a
pre-removal risk assessment (PRRA) officer, dated May 31, 2012, rejecting the
application for a stay of removal of Francis Mbaioremem (the applicant).
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
applicant is a citizen of Chad. He left his country on April 13, 2008, and arrived
in the United States the following day. He then made his way to Canada and
claimed refugee protection on April 29, 2008.
[4]
On
November 29, 2010, the Refugee Protection Division (RPD) dismissed his refugee
protection claim on the ground that he was not credible.
[5]
The
Court heard the applicant’s application for judicial review of the RPD’s
decision and dismissed it on September 20, 2011 (see Francis v Canada (Minister
of Citizenship and Immigration), 2011 FC 1078).
[6]
The
applicant subsequently submitted a PRRA application. He claims to fear
returning to Chad because the regime currently in power views him as being a supporter
of a rebel group.
[7]
On
May 31, 2012, the immigration officer (the officer) denied the PRRA application.
He refused to consider the two letters (Exhibits A-3 and A-5) and affidavit
(pièce A-1) filed by the applicant because he determined that these did not
constitute new evidence within the meaning of paragraph 113(a) of the
IRPA. After having weighed all of the admissible evidence, the officer found
that the applicant had not established the existence of a serious possibility
of persecution on one of the Convention grounds or that he would face a personalized
risk of torture, a risk to his life or a risk of cruel and unusual treatment if
he were to return to Chad.
III. Legislation
[8]
Section
113 of the IRPA
stipulates that:
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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) — other than one
described in subparagraph (e)(i) or (ii) — 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; and
(e)
in the case of the following applicants, consideration shall be on the basis
of sections 96 to 98 and subparagraph (d)(i) or (ii), as the case may be:
(i)
an applicant who is determined to be inadmissible on grounds of serious
criminality with respect to a conviction in Canada punishable by a maximum
term of imprisonment of at least 10 years for which a term of imprisonment of
less than two years — or no term of imprisonment — was imposed, and
(ii)
an applicant who is determined to be inadmissible on grounds of serious
criminality with respect to a conviction of an offence outside Canada that,
if committed in Canada, would constitute an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years,
unless they are found to be a person referred to in section F of Article 1 of
the Refugee Convention.
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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) — sauf celui visé au sous-alinéa e)(i) ou (ii) —, 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;
e) s’agissant des demandeurs
ci-après, sur la base des articles 96 à 98 et, selon le cas, du sous-alinéa
d)(i) ou (ii) :
(i) celui qui est interdit de
territoire pour grande criminalité pour déclaration de culpabilité au Canada
pour une infraction à une loi fédérale punissable d’un emprisonnement maximal
d’au moins dix ans et pour laquelle soit un emprisonnement de moins de deux
ans a été infligé, soit aucune peine d’emprisonnement n’a été imposée,
(ii) celui qui est interdit de
territoire pour grande criminalité pour déclaration de culpabilité à
l’extérieur du Canada pour une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans, sauf s’il a été conclu qu’il est
visé à la section F de l’article premier de la Convention sur les réfugiés.
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Issues and
standard of review
Issues
1.
Did the PRRA officer err by rejecting
certain pieces of evidence in the record?
2.
Are the PRRA officer’s findings reasonable
in this case?
B. Standard
of review
[9]
In
Selduz v Canada (Minister of Citizenship and Immigration), 2009 FC 361,
[2009] FCJ No 471 at paragraphs 9 and 10, Justice Kelen wrote the following
with respect to the appropriate standard of review for decisions by PRRA
officers:
[9] The Court has held that the appropriate
standard of review for a PRRA officer's findings of fact and on issues of mixed
fact and law is reasonableness: see Erdogu v. Canada (Minister of Citizenship
and Immigration), 2008 FC 407, [2008] F.C.J. No. 546 (QL); Elezi v. Canada,
2007 FC 40, 310 F.T.R. 59. In Ramanathan v. Canada (Minister of Citizenship and
Immigration), 2008 FC 843, 170 A.C.W.S. (3d) 140 at paragraph 18, I held that
where an applicant raises issues as to whether a PRRA officer had proper regard
to all the evidence when reaching a decision, the appropriate standard of
review is reasonableness.
[10] Accordingly, the Court will review the
PRRA officer's findings with an eye to "the existence of justification,
transparency and intelligibility within the decision-making process" and
"whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law." (Dunsmuir
v. New Brunswick, 2008 SCC 9, 372 N.R. 1 at paragraph 47). However, where the
PRRA officer fails to provide adequate reasons to explain why relevant,
important and probative new evidence was not considered, then the court will
consider that an error of law reviewed on the correctness standard.
[10]
The
appropriate standard in this case is reasonableness.
[11]
“Reasonableness
is concerned both with the existence of justification, transparency, and
intelligibility in the decision-making process and with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 190, [2008]
SCJ No 9 at para 47).
V. Position
of the parties
A. Applicant's
position
[12]
The
applicant contends that the officer erred in law when he excluded Exhibits A-1,
A-3 and A-5 because he misapplied the test set out in Raza v Canada (Minister
of Citizenship and Immigration), 2007 FCA 385 at paragraph 13 (Raza).
He maintains that this evidence was produced after the RPD’s decision and thus constitutes
new facts in the record.
[13]
In
addition, the applicant further claims that the expressions “not reasonably
available” and “not reasonably have been expected” in section 113 if the IRPA
should be narrowly construed, given the objective of the Act.
[14]
The
applicant argues that the officer failed to consider some of the documentary
evidence that corroborated his allegations. In so doing, he committed an error
of mixed fact and law. The applicant submits that the evidence as a whole is
sufficient to rebut the findings of the RPD and to conclude that there is a
substantial risk to his life and safety if he returns to Chad.
[15]
Furthermore,
the applicant alleges that the officer showed a biased and capricious attitude
when he rejected Abbott Diondoh’s letter on the ground that it was from a
person with a direct interest in the outcome. He noted that as the Abbott did
not stand to gain any benefit from the result of this refugee protection claim,
the officer treated this piece of evidence in a purely capricious and perverse
manner.
B. Respondent's
position
[16]
The
respondent argues that the officer considered all of the admissible new
evidence in this PRRA application and rendered a reasonable and well-reasoned
decision. It was reasonably open to the officer to refuse to consider Exhibits
A-1, A-3 and A-5 on the ground that they did not constitute new evidence within
the meaning of section 113 of the IRPA. The respondent notes that it matters
little whether the exhibits in question were dated or had been produced after
the RPD’s decision. Rather, the focus should be on whether the information
contained in these exhibits was available or could have been provided at the
time of the refugee protection hearing.
[17]
The
respondent also claims that it was reasonable for the officer to attach little
probative value to Abbott Diondoh’s letter because: (1) In his letter, Abbott
Diondoh re-states information he had already submitted in support of the
applicant’s refugee protection claim; (2) the letter merely states that those
who were after the applicant continue ask for information about him under the
same pretexts, but without providing further details or additional evidence; (3)
the letter does not suggest that the applicant’s three children, who remain in Chad,
have been subject to any threats; and (4) Abbott Diondoh lacks objectivity
because he is responsible for the care of the applicant’s three children.
[18]
Lastly,
the respondent concludes that the officer weighed all of the documentary
evidence describing the situation in Chad but determined that this evidence, along
with other admissible evidence submitted by the applicant, was not sufficient
to establish the existence of a real risk to the applicant’s life and safety if
he were to return to Chad. In short, the respondent argues that the officer’s
conclusion was reasonable and well-reasoned.
VI. Analysis
1. Did
the PRRA officer err by rejecting certain pieces of evidence in the record?
[19]
The
PRRA did not err by rejecting certain pieces of evidence, for the following
reasons.
[20]
After
having carefully read Exhibits A-1, A-3 and A-5, the Court is of the view that
the officer correctly refused to take this evidence into consideration. These
documents do not describe any “event that occurred or a circumstance
that arose after the hearing” (Raza, above, at paragraph 13).
Even if Exhibit A-1 was able to rebut the RPD’s doubts about the applicant’s
membership in the Association pour la Promotion des Libertés Fondamentales au Tchad
(APLFT), this evidence was available to the applicant at the time of the
refugee protection hearing and therefore he could reasonably have been expected
to have filed it at that time (Raza, above, at paragraph 13). Moreover,
such evidence indicating membership in an opposition movement is often submitted
with a refugee protection claim. The officer therefore correctly applied paragraph
113(a) of the IRPA to the exhibits in question.
[21]
The
Court concurs with the respondent’s argument to the effect that the officer
adequately considered the objective documentary evidence contained in the record.
First, I emphasize that the officer is presumed to have considered all of the
evidence before him or her and is not required to refer to each and every piece
of that evidence (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No 598); Hassan v Canada (Minister of Employment and Immigration)
(1992), 147 NR 317, [1992] FCJ No 946 (FCA)).
[22]
Furthermore,
it should be noted that at page 4 of his decision, the officer stated as
follows:
“ . . . I acknowledge that Chad has continued reports
of human rights abuses against political dissidents and those believed to be
involved in rebellious groups. The applicant did not establish through evidence
that he faces a serious possibility of persecution for perceivably being a
supporter of rebel groups who attacked the capital in 2008. . . .”
[23]
The
PRRA officer acknowledged that the authorities in Chad continue to violate the
fundamental rights of political dissidents and those suspected of belonging to
rebel groups. The officer adequately considered the documentary evidence.
[24]
The
applicant failed to persuade the officer, with the evidence he adduced, that he
was a member of a class of persons who would be personally at risk in Chad. As
with a claim made pursuant to section 96 and subsection 97(1) of the IRPA, the
purpose of a PRRA application is to assess the risk to which a refugee claimant
would be subject to if returned to his or her country of origin. Since the Raza
decision, above, it is settled law that the purpose of a PRRA application
is to consider new circumstances that have occurred since the rejection of the
refugee protection claim, a PRRA application cannot and must not be used to
reassess the claim (see also Badobrey v Canada (Minister of Citizenship and Immigration),
2012 FC 990 at paragraph 23).
[25]
It
appears that the only new evidence filed in the record, namely, Abbott Diondoh’s
letter, states that the applicant’s persecutors continue ask for information about
him under the same pretexts. It was reasonable for the officer to find that the
RPD would not have ruled otherwise if it had been apprised of this information.
2. Are
the PRRA officer’s findings reasonable in this case?
[26]
The
officer attributed little probative value to Abbott Diondoh’s letter on the
following grounds: (1) the letter reiterates the same information that had been
submitted in the applicant’s refugee protection claim; (2) it states that those
who were after the applicant continue ask for information about him under the
same pretexts, but without providing additional details or corroborating
evidence; (3) the letter does not suggest that the applicant’s three children,
who remain in Chad, have been subject to any threats; and (4) there is a
connection between the applicant and Abbott Diondoh, as the latter is responsible
for the care of the applicant’s three children; the letter lacks objectivity.
[27]
It
is not for the Court to substitute its own assessment of one piece of evidence
for that of the decision maker, in this case the PRRA officer, but rather, to
ensure its reasonableness (see Ferreira v Canada (Attorney General),
2013 FCA 81 at paragraph 5; Eid v Canada (Minister of Citizenship and Immigration),
2010 FC 639 at paragraph 69). Contrary to the applicant’s arguments, the Court
considers the officer’s determination as to the probative value of Abbott
Diondoh’s letter to be reasonable and within the possible outcomes pursuant to
paragraph 113(a) of the IRPA.
[28]
In
his memorandum filed on November 26, 2012, the applicant submits that limiting
the evidence that can be considered in a PRRA context to new evidence within
the meaning of paragraph 113(a) of the IRPA is inconsistent with
sections 7 and 12 of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B to the Canada Act
1982 (UK), 1982, c 11 [Charter] and Canada’s international obligations on
human rights. However, in his supplementary memorandum filed May 6, 2013, the
applicant states, at paragraph 16, that the interpretation and application of
paragraph 113(a) in Raza, above, are consistent with the
Charter’s principles, and with Canada’s obligations under international law. The
Court agrees with the applicant that Raza clearly dealt with the
legality of paragraph 113(a) of the IRPA.
[29]
Given
that the assessment of the evidence adduced by the applicant and considered by
the officer contains no errors in terms of the application of paragraph 113(a)
of the IRPA and that the officer’s finding falls within a range of possible
outcomes, the Court dismisses this application for judicial review.
JUDGMENT
THE
COURT DISMISSES this application for judicial review and finds that
there is no question of general interest to certify.
“Andre F.J. Scott”
Certified
true translation
Sebastian
Desbarats, Translator
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