Docket: IMM-5559-13
Citation:
2014 FC 589
Ottawa, Ontario, June 20, 2014
PRESENT: The
Honourable Mr. Justice Mosley
|
BETWEEN:
|
|
KALALA PRINCE DEBASE BETOUKOUMESOU
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
These reasons relate to an application for
judicial review of a decision by a Citizenship and Immigration Canada (CIC)
Officer refusing Mr. Kalala Prince Debase Betoukoumesou’s application for a
Pre-Removal Risk Assessment (PRRA). The application was heard in Toronto on May
8, 2014 together with a related application for judicial review of a negative
decision regarding an application for permanent residence on humanitarian and
compassionate (H&C) grounds under s 25 of the Immigration and Refugee
Protection Act, 2001 SC, c 27 [IRPA] for which a separate decision
will be issued.
I.
BACKGROUND
[2]
Mr. Betoukoumesou is a 52 year-old citizen of the Democratic Republic of
Congo (DRC). While living in the DRC, Mr. Betoukoumesou
had a small transportation business with two minibuses and a small store. In
1990, he became a member of one of the major opposition parties, the Union pour la démocratie et le progrès social (Union for Democracy and Social Progress or UDSP). In
September 1991, his shop was pillaged and destroyed by soldiers. From that
moment on, he had difficulty providing for his family. In September 1992, he
was introduced to someone who worked for the “Service
national d’intelligence et de protection” (SNIP). Mr
Betoukoumesou was eventually hired as a civilian driver for the SNIP. He drove
military staff from their homes to the SNIP office in the morning and back home
after work.
[3]
On February 22, 1993, Mr. Betoukoumesou was
asked by his supervisor to take part in an operation that turned out to be a
mission to abduct three people. The supervisor ordered that any targets who
resisted the abduction be killed. One of the targets was an individual who
lived in the same neighbourhood as Mr. Betoukoumesou and who was a member of the
political opposition. Mr. Betoukoumesou was recognized and, as a result, was
threatened the next day at his home by a mob of approximately 20 people
who were all armed with makeshift weapons. They set his house on fire. Mr
Betoukoumesou escaped in his car. He spoke to his supervisor to report the
incident and request protection and assistance, but this was refused.
[4]
Mr. Betoukoumesou attempted to resign his position but this was
refused. He says that he was arrested on March 15, 1993 by military men working
for the Service d’action et de renseignement militaire (SARM).
They found UDSP material when they arrested him and accused him of being a spy.
He says he was held for four months by SNIP and routinely tortured. In August
he was transferred to a prison where he says he was detained without trial for
three years and tortured.
[5]
In January 1997 he says he received a letter
informing him that he was to be executed on March 15, 1997. He fled to Canada with his wife and four children and claimed asylum.
[6]
On May 17, 1999 Mr. Betoukoumesou was found by the Immigration
and Refugee Board (IRB) to be excluded from receiving refugee protection on the
basis of the exclusion clause 1(F)(a) of the Convention
relating to the Status of Refugees, 28 July 1951,
189 UNTS 150, (entered into force 22 April 1954) [Refugee Convention].
He was found to have been complicit in SNIP’s commission of crimes against
humanity in the DRC. Specifically, he was found to have been an accomplice to
the abductions of political opponents by armed militiamen, knowing that the
militiamen’s instructions were to kill any targets who resisted abduction. His
wife and four children were granted asylum.
[7]
Mr. Betoukoumesou’s application for leave and for judicial review
of the exclusion decision was dismissed. He filed the underlying application
for a PRRA on July 18, 2006. An application for mandamus with respect to
the PRRA application was denied leave on July 10, 2009.
II.
DECISION UNDER REVIEW
[8]
The officer noted that because the applicant had been found to be
excluded from refugee protection, his PRRA could only be considered under s 97
of the IRPA in application of paragraph 113(d) of the IRPA.
[9]
In his application, the applicant alleged that
he was at risk on the basis of his membership in the UDSP, his former
employment by the Mobutu regime, as well as because he had sent some family
members in the DRC an article considered to be “subversive”.
Two of his family members had since disappeared and he claimed that he was
wanted by the authorities.
[10]
The officer observed that the documentary
evidence indicated that individuals who were loyal to Mobutu were no longer
persecuted unless they were linked to rebel groups, and that large numbers of
Mobutu loyalists had returned to the DRC. The Officer therefore concluded that
this ground, on which the applicant’s family had been granted asylum, was no
longer available today.
[11]
The officer refused to consider one of the
documents submitted as it was not “new” but pre-dated the applicant’s hearing
before the IRB.
[12]
The officer held that the applicant’s past
activities as a member of the UDSP had not, on a balance of probabilities, made
him a person of interest to the authorities since he had thereafter been hired
by the SNIP. As for his present activities as a member of the UDSP, the officer
considered the applicant’s submissions that his sister and brother had
distributed a document he had sent them and thereafter disappeared, as well as
the documentary evidence. The officer reviewed the documentary evidence and
gave it little weight due to contradictions within and between the various
pieces of evidence submitted in support of this allegation. As a result of the
numerous contradictions relating to the applicant’s recent activities as a
member of the UDSP and the distribution of the “subversive” article, the
officer gave no weight to the applicant’s allegations relating to his
membership in the UDSP.
[13]
The officer gave little weight to a BBC article
indicating that failed asylum seekers and individuals the authorities believed
to be dissidents were interrogated and ran the risk of being detained. The
officer held that the applicant had not established that the authorities would
believe him to fall into either of these categories. Further, an IRB document
indicated that nothing led to the conclusion that failed asylum seekers were
persecuted by Congolese authorities, with the exception of individuals having
or believed to have had a political past. The officer therefore held that the
applicant would not, on the sole basis of being a failed asylum seeker, face
the risks set out in s 97 of the IRPA.
[14]
As for the general documentary evidence on state
conditions, the officer held that these risks were generalized risks faced by
the entire population. The officer further held that the applicant had not
established that he fell into one of the categories of individuals who do face
a personalized risk, such as journalists, politicians and human rights
activists. Given the lack of evidence of a personalized risk, the officer held
that there were not substantial grounds to believe that removal would subject
the applicant to a danger of torture, or a risk to his life or to a risk of cruel
and unusual punishment.
III.
ISSUES
[15]
The applicant submits that the issue is whether the officer erred
in law, made a mistake of fact, an error in fairness or exceeded jurisdiction.
In my view, no error of law or excess of jurisdiction arises on the facts of
this case. The case turns on the officer’s review of the evidence and
appreciation of the facts.
[16]
The standard of review for PRRA decisions overall has been
satisfactorily determined by the jurisprudence to be reasonableness: Singh v
Canada (Minister of Citizenship and Immigration), 2014 FC 11.
[17]
In reviewing a decision against the
reasonableness standard, the Court must consider the justification,
transparency and intelligibility of the decision-making process, and whether
the decision falls within a range of possible acceptable outcomes which are
defensible in light of the facts and the law: see Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 90 at para 47, and Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa] at para
59.
[18]
Procedural fairness is implicated in this matter because the
applicant argues that he should have been granted an interview. In that regard
the standard of review is correctness. The Court must determine whether the
process followed by the decision-maker satisfied the level of fairness required
in all of the circumstances: Khosa, above, at para 43.
IV.
ARGUMENTS AND ANALYSIS
[19]
The applicant submits that the officer erred in
failing to consider a document that was found to have pre-dated the IRB
hearing. This error stemmed from the applicant’s mistake in creating an Index
to the materials he submitted with his application. The date given in the Index
was 1996 whereas it was, in fact, a 2006 document. The applicant submits that
the officer would have realized the error had the officer in fact read the
article. In my view, this error is not attributable to the officer. The error
is repeated in the body of the submissions. In any event, the content of the
article is similar to the general country documents which the officer did
review. I find that it was not a material error as it cannot be said
that the decision would have been different if the officer had considered the
article as new.
[20]
The credibility of the applicant’s claims
regarding his association with the UDSP before he left the DRC, was rejected by
the officer although this was accepted by the IRB, the applicant submits. The officer
found that he did not have a sufficient profile for the authorities to be
interested in him despite his association with the UDSP and lengthy detention.
It was unlikely that he would have obtained employment with SNIP if he had such
a profile and unlikely that he would have worked for an organization the UDSP
accused of being responsible for human rights abuses had he been active in the
organization. This was a finding within the scope of the officer’s discretion.
[21]
The applicant asserts that it was unreasonable
for the officer to give little weight to his affidavit on the basis that he was
the interested party and that it was also unreasonable to dismiss the value of
an article that he had cited in his affidavit and letters from non-governmental
organizations.
[22]
In my view, the officer’s consideration of the
applicant’s evidence fell within the range of reasonableness and no breach of
procedural fairness arises from the failure to conduct an interview. The
officer provided a number of reasons as to why the evidence was given
little weight and the weight to be given to the evidence is within the
officer’s discretionary decision-making power: Garcia Cruz v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 853 at para 11.
[23]
The questions raised by the officer did not go to the applicant’s
credibility but to the value of the supporting evidence. The officer does not
state that she disbelieves the applicant but points to inconsistencies in the
documents. The letter from the Association
Africaine de Défense des Droits de l’Homme (ASADHO),
for example, does not indicate how the organization would have known what the
applicant’s brother and sister allegedly said under torture. The letter from
the UDPF is inconsistent with the allegation that he had previously been
considered a traitor to that organization. The content of a letter from an
organization styling itself as the “Bill Clinton Foundation for Peace”
is inconsistent with the applicant’s claim. The officer reasonably observes
that it is easy to obtain documents at low cost in the DRC. It was also open to
the officer to wonder why the applicant would be at risk for sending an article
to his siblings from a journal published in Kinshasa a year earlier.
[24]
The officer misunderstood a letter from the Ligue Nationale pour les Elections Libres et Transparentes (LINELIT) with regard to the transfer of
documents in Sun City, South Africa that are said to have caused the arrest of
the applicant’s brother and sister in the DRC. The letter is confusing as to
the provenance of the documents but suggests that they were sent to the
applicant. The officer read that as meaning that the applicant was present in Sun City when he could not have been. In any event, this error is not, in itself,
sufficient to find the decision as a whole unreasonable.
[25]
At the time the decision was rendered, the
officer had the negative H&C prepared by a different officer in the PRRA
file. The applicant had yet to be notified of that decision and argues that
this was a breach of procedural fairness citing Bhagwandass v Canada (Minister of Citizenship and Immigration), 2001 FCA 49, [2001] FCJ no 341 (FCA)
[Bhagwandass].
[26]
Bhagwandass concerned
the failure to disclose a Ministerial Opinion Report and Request for a
Minister’s Opinion in the context of a danger assessment. It was clear that the
documents contained highly relevant information that the decision maker relied
upon in making the discretionary decision and that fairness required that the
applicant be provided with an opportunity to respond. That is not the case
here. The information in the H&C decision was available to the applicant
and had, for the most part, been submitted by him in his application for an
exemption. In those circumstances, the failure to disclose the H&C decision
prior to the determination of the PRRA application did not constitute a breach
of procedural fairness.
[27]
In the result, I am satisfied that the decision
under review fell within the range of possible acceptable outcomes which are
defensible in light of the facts and the law and that the application must be
dismissed.
[28]
No questions were proposed for certification.
Email this Content