Date: 20140718
Docket: IMM-5882-13
Citation:
2014 FC 717
Ottawa, Ontario, July 18, 2014
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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NICHOLAS KIOKO
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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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JUDGMENT AND REASONS
Overview
[1]
Mr. Kioko, a Kenyan citizen, entered Canada as a visitor in September 2005. A few weeks after his arrival, he claimed asylum
alleging fear for his life if he had to return to Kenya. In particular, he
feared the violent reprisals of a Mr. Kiplagat for an interview he had given a
few weeks prior to his departure where he said he was about to denounce some
questionable practices of Kenya’s Athletics Association. At the time, Mr.
Kiplagat was the president of that Association. Mr. Kioko’s asylum claim was
granted in May of 2007 but in November 2010, his status as a person in need of
protection was vacated as it was found that he had misrepresented some of his
asylum claim’s material facts, including his previous arrests and convictions
in the United States where he had lived with his wife and three children from
2000 to 2004.
[2]
Confronted to a removal order, Mr. Kioko sought
from the Minister a pre-removal risk assessment. This request was rejected as
the Minister was not persuaded, due to a lack of corroborating evidence, that
Mr. Kioko would face, upon returning to Kenya, a personalized forward-looking
risk to his life or of cruel and unusual treatment or punishment. Mr. Kioko
challenged this assessment. In April 2013, this Court ordered that Mr. Kioko’
pre-removal risk assessment request be reviewed by taking into account a piece
of evidence, namely an arrest warrant allegedly issued against him at the time
he left for Canada in 2005, which he could have, but mistakenly did not, file
in support of the said request. In July 2013, the Minister concluded that Mr.
Kioko’s evidence was still insufficient to justify a stay of the removal order.
[3]
Mr. Kioko is now challenging this most recent
decision and does so in two respects. First, he says this decision is
credibility-driven with the result that he was entitled to an oral hearing.
Second, he contends that the Minister, in reassessing the evidence, ignored or
capriciously rejected material facts and drew conjectural conclusions.
[4]
For the reasons that follow, Mr. Kioko has not
persuaded me that he was entitled to an oral hearing or that the Minister’s
decision warrants to be interfered with.
I.
Pre-Removal Risk Assessment’s Legal Framework
[5]
The statutory authority for a pre-removal risk
assessment is set out in s 112 of the Immigration and Refugee Protection Act,
SC 2011, c 27 (the Act). That provision enables the Minister – or his delegate
– to determine whether a person who faces a removal order is in need of
protection. The effect of a positive assessment is to stay the removal order.
[6]
A pre-removal risk assessment is conducted on
the grounds set out in s 96 and 97 of the Act. In the case of Mr. Kioko, it was
conducted on the sole basis of s 97 as he was found, in the context of the
November 2010 vacating order, to be inadmissible to remain in Canada on grounds of serious criminality.
[7]
Persons applying for a pre-removal risk
assessment bear the onus of establishing, on a balance of probabilities, that
they need Canada’s protection (Adetunji v Canada (Minister of Citizenship
and Immigration), 2012 FC 708 at para 19, [2012] FCJ No 698 (QL) [Adetunji];
Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC
1067, at para 22, [2008] FCJ No 1308 (QL)). In the context of an assessment based
on the factors set out in s 97 of the Act, the claimants must prove that their
removal to their country of nationality would subject them personally to a risk
to their life, or to a risk of cruel and unusual treatment or punishment. They
also have to prove that they would be unable, or, because of that risk,
unwilling to avail themselves of the protection of that country, whatever the
geographical area they are removed to.
[8]
In the context of a pre-removal risk assessment
application, the concept of risks is forward-looking and a personalized risk is
a risk that is more significant than the one faced by the population of the
country of nationality (Campos v Canada (Minister of Citizenship and
Immigration), 2008 FC 1244 at para 9, [2008] FCJ No 1566 (QL) [Campos];
Andrade v Canada (Minister of Citizenship and Immigration) 2010
FC 1074 at para 46, [2010] FCJ No 1348 (QL) [Andrade]).
[9]
Pre-removal risk assessment’s applications are
generally assessed on the basis of an applicant’s written submissions and
documentary evidence (Adetunji, above at para 25) but s 113 of
the Act provides the Minister with the discretion to hold a hearing when
certain factors are present. In essence, these factors, prescribed by s 167 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 (the
Regulations), are whether (a) there is evidence raising a serious issue of the
applicant’s credibility; (b) the evidence is central to the application for
protection; and (c) the evidence, if accepted, would justify allowing the
application (Liban v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1252 at para 12, [2008] FCJ No 1608 (QL).
[10]
An oral hearing in the context of such
applications remains, however, the exception (Ahmad v Canada (Minister of Citizenship and Immigration), 2012 FC 89 at para 38, [2012] FCJ No 96 (QL) [Ahmad];
Adetunji, above at para 25).
[11]
The statutory and regulatory provisions referred
to above are reproduced in the Annex to this judgement.
II.
Issues
[12]
This case raises two issu47es. The first is whether
the Minister was, in the circumstances of this case, bound to hold an oral
hearing. The second is whether the Minister’s finding that Mr. Kioko has
not established, on a balance of probabilities, that he would face, upon return
to Kenya, a personalized risk to his life, or of cruel and unusual treatment or
punishment as per s 97 of the Act, is unreasonable.
III.
Issue 1: Was the Minister Bound to Hold a
Hearing?
A.
Standard of Review
[13]
The standard of review applicable to decisions
taken on pre-removal risk assessment applications differs according to the
nature of the issues raised. As it is in large part the result of a fact-driven
inquiry, the standard of reasonableness has consistently been applied to the
determination of risk upon being returned to a particular country. These
determinations, including the conclusions regarding the proper weight to be
accorded to the evidence, warrant considerable deference because of the
Minister’s specialized expertise in risk assessments (Adetunji, above at
para 22; Ahmad, above at para 41).
[14]
Issues of procedural fairness, on the other
hand, call for a more exacting standard of review – the standard of correctness
– and no deference is due to the decision-maker (Adetunji, above at para
23). The jurisprudence of this Court is however divided on the standard of
review to be applied to the Minister’s decision to hold a hearing or not in
the context of a pre-removal risk assessment application.
[15]
In some judgments, the Court has treated the
decision to not hold a hearing as a breach of procedural fairness and has, as a
result, applied the standard of correctness. In other judgments, it has been ruled
that deciding whether it is appropriate to hold a hearing on the basis of the
specific context of a case and the factors prescribed by s 167 of the
Regulations involved an exercise of discretion that attracts deference, and was
subject therefore to a standard of reasonableness (Andrade, above at
paras 19-20; Adetunji, above at para 24).
[16]
In her memorandum of fact and law, counsel for
Mr. Kioko took the position that the applicable standard of review of the
Minister’s decision to allow or not an oral hearing was that of reasonableness
(at para 23). However, she argued at the hearing that the applicable standard
was that of correctness. The respondent disagrees and contends that the
applicable standard is that of reasonableness.
[17]
I agree with the respondent that the
reasonableness standard applies to such decisions. Section 113 of the Act makes
it clear that a hearing in the context of a pre-removal risk assessment
application is only to be held in very specific circumstances tailored by the
pre-removal risk assessment regulatory scheme. As Justice de Montigny put it in
Adetunji, above, the decision to hold a hearing is “not taken in the abstract, according to what each Officer
thinks is required by procedural fairness”; it is rather taken “by applying the factors prescribed in s. 167 of the Regulations,
factors to the particular facts of each case” (Adetunji, above at
para 27).
[18]
As such, deciding whether to hold a hearing in
the specific context of a pre-removal risk assessment application is clearly,
in my view, a question of mixed fact and law and one over which the Minister,
being called upon to interpret his own statute, has expertise (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 25, [2009] 1 S.C.R. 339; Celgene Corp v Canada (Attorney General), 2011
SCC 1 at para 34, [2011] 1 S.C.R. 3; Nolan v Kerry (Canada) Inc., 2009 SCC 39 at para 35, [2009] 2 S.C.R. 678; Dunsmuir v
New Brunswick, 2008 SCC 9 at para 41, [2008] 1 S.C.R. 190).
[19]
I therefore share the view of those of my
colleagues who have held that such decisions attract deference and are
reviewable on the reasonableness standard (Adetunji, above at para 27; Andrade,
above at paras 21-22; Ventura v Canada (Minister of Citizenship and
Immigration), 2010 FC 871, at para 18, [2010] FCJ No 1079 (QL)).
[20]
Based on the factors outlined in s 167 of the
Regulations, the question to be decided on this first issue is therefore
whether the Minister’s decision to reject Mr. Kioko’s pre-removal risk
assessment application was premised on Mr. Kioko’s credibility or rather on the
insufficiency of the evidence he presented in order to support a finding that
he would be personally at risk if he were to be removed to Kenya (Adetunji,
above at para 30). If credibility is at issue, then the test to be applied is
whether this issue was central to the Minister’s decision to reject Mr. Kioko’s
application (Latifi v Canada (Minister of Citizenship and
Immigration), 2006 FC 1388 at para 49, [2006] FCJ No 1738 (QL)).
[21]
It is well established that in answering that
question, the Court must analyse the impugned decision by looking beyond the
words used by the Minister. It must, in other words, determine the true basis
of the decision before determining whether it turned on lack of credibility or
insufficiency of evidence (Andrade, above at paras 31-32).
[22]
In order to determine the true basis of the
impugned decision in the present instance, it is necessary to look at the facts
of the case from the very outset.
B.
The Facts
(1)
Mr. Kioko’s asylum claim and the
subsequent vacating order
[23]
Mr. Kioko is a long-distance runner. When he
came to Canada with a temporary resident visa in September 2005, it was to
participate in the Montreal Marathon. The asylum claim he filed shortly
thereafter was prompted by alleged threats to his life by people from the
Kenyan Athletic Association and the government’s secret services because of his
will to denounce the selling of young Kenyan athletes to some Middle East
countries. These threats all stem from a single event, an interview given by
Mr. Kioko in the summer of 2005 where he denounced some questionable practices
of the country’s Athletic Association; and they are all linked to a single
individual, Mr. Kiplagat, the president of that Association.
[24]
Mr. Kioko alleged that from the moment Mr.
Kiplagat learned about the interview, he planned to eliminate him. This threat
led Mr. Kioko to leave Nairobi, where he had his residence, for his mother’s
house in the country. Once at his mother’s house, he learned that strangers had
broken into his house in Nairobi, looking for him and seriously injuring his
cousin who was keeping an eye on the house at the time. Once in Canada, he was told that his house had been burnt down. The time the police and the fire
brigade took to arrive at the scene led him to believe that the perpetrators
had police protection. He also apparently learned, once in Canada, that Mr. Kiplagat had arranged for sedition charges to be laid, and an arrest warrant to be
issued, against him.
[25]
Mr. Kioko claimed asylum as a person in need of
protection under s 97 of the Act. The member of the Refugee Protection Division
of the Immigration and Refugee Board who interviewed Mr. Kioko believed his
story and accepted his claim.
[26]
Mr. Kioko’s story does not end there, however.
While he was securing Canada’s protection, evidence that Mr. Kioko had made
misrepresentations in his asylum claim on material facts such as his identity,
marital status, passports, previous arrests and convictions and orders to leave
a country, began to surface.
[27]
This all started in January 2007 when Mr. Kioko
was arrested and detained by the American border authorities as he was
attempting to enter the United States, where he still had family, with false
documents. He subsequently pleaded guilty to the offence of “improper entry by
alien” and was returned to Canada. This incident brought to light the fact that
in 2004, while he was living in the United States to pursue his career and training
as a long-distance runner, Mr. Kioko was convicted of the felony of “aggravated
battery” on his wife. As a result of this conviction, he was deported to Kenya in March 2005 where he lived up to his departure for Canada six months later.
[28]
This discovery meant that Mr. Kioko might have
been inadmissible to enter Canada in September 2005 and that he might have
misrepresented himself in his request for Canada’s protection. This prompted an
investigation on the part of the Canada Border Services Agency which eventually
led to Mr. Kioko’s asylum status being vacated. From that point on, Mr. Kioko
was deemed inadmissible to remain in Canada and his removal to Kenya was, as a result, ordered by the Minister. Mr. Kioko sought, but was denied leave to
challenge the vacating order.
(2)
The first pre-removal risk assessment
decision
[29]
Faced with the prospect of being removed to Kenya, Mr. Kioko again sought Canada’s protection by requesting this time, from the Minister, a pre
removal risk assessment under s 112 of the Act. He alleged, in this regard,
that Mr. Kiplagat was still interested – and still had the means through his
considerable connections to the Kenyan authorities – to exact vengeance for the
summer 2005 interview by arranging for his arrest, detention and conviction on
the sedition charges or even for having him killed. In support of Mr.
Kiplagat’s alleged continued interest in punishing him, Mr. Kioko reported
having been told by a relative that one of his uncles had died in a “suspicious” car accident in December 2010, sometime
after having been arrested and questioned on his whereabouts.
[30]
In July 2012, the Minister, through one of his
delegates, Senior Immigration Officer C. Palmer (the Officer), rejected Mr.
Kioko’s request on the ground that his allegations were not supported by
corroborating evidence such as a copy of the arrest warrant and information
about the car accident, the uncle’s death and the relative who informed him of
these events.
[31]
The Officer also reviewed the documentation
adduced regarding current country conditions, Mr. Kiplagat and the Kenyan
Athletic Association. He found that although corruption and impunity persist in
Kenya, as do long standing ethnic rivalries and endemic poverty, the country
conditions affected all Kenyans and did not point to an individualized risk to
Mr. Kioko.
[32]
As for Mr. Kiplagat and the Kenyan Athletic Association,
the Officer noted that the issues of the “selling”
of Kenyan athletes had been documented in the press well before Mr. Kioko’s
2005 interview on the subject, with many other athletes complaining about
possible bribery and corruption in the Kenyan athletic world. He found that
with the passage of time, and a new generation of athletes, there was
insufficient evidence to conclude that Mr. Kioko would still be of interest to
Mr. Kiplagat or other figures in the Kenyan Athletic Association. He noted in
this regard that no one among Mr. Kioko’s family, friends or fellow athletes
had submitted information on Mr. Kioko’s behalf as to any personalized danger
in relation to the summer 2005 interview or from the Kenyan authorities.
(3)
The second pre-removal
risk assessment decision
[33]
Mr. Kioko’s pre-removal risk was reassessed, as
ordered by this Court, so that the arrest warrant issued against Mr. Kioko be
taken into consideration. In support of this reassessment, Mr. Kioko filed a
new affidavit where he provided some details as to his uncle’s deadly car
accident. These details were provided through the affidavit of a family member who
was called to the scene of the accident by the police and who was told by
people on the scene that the police had been slow to intervene while his
injured uncle was apparently still alive. Mr. Kioko also filed some hospital
receipts allegedly related to the medical care his cousin needed after having
been beaten by strangers while he was guarding his house in August 2005.
Finally, he reported that one of his other uncles had been killed, while his
house was being robbed. In particular, he reported that this death had occurred
at about the same time his lawyer was appearing before this Court in April
2013. Mr. Kioko recognised however that there was no way to determine whether
there was a connection between the two events.
[34]
The Minister, through the Officer, gave no
weight to the affidavit dealing with the deadly car accident. He found, on the
one hand, that there was nothing in this affidavit linking that death to Mr.
Kiplagat. He noted, on the other hand, that there was no corroborative
information from other members of Mr. Kioko’s family indicating that there
might be such a link. The Officer’s conclusion regarding the death of Mr.
Kioko’s other uncle in April 2013 was to the same effect as he found no
corroborative evidence linking that death to Mr. Kiplagat.
[35]
With respect to the medical reports, the Officer
found that these reports were from a hospital located outside of Nairobi and
were dated from December 2005 whereas the incident that led to Mr. Kioko’s
cousin’s injuries had occurred in August 2005.
[36]
As for the arrest warrant, the Officer questioned
its validity on a certain number of grounds. First, he questioned the fact that
it was dated August 31, 2005, whereas Mr. Kioko was apparently only made aware
of its existence once in Canada. Second, he formed the view that if the warrant
had in effect been issued in August 2005, which was before Mr. Kioko’s
departure for Canada, it could have blocked his departure at the airport or the
issuance of his temporary resident visa by the Canadian local consular
authorities. Third, the Officer noted that there were no details on the “seditious charges” underlying the issuance of the arrest
warrant and that no follow-up documents had been adduced since the end of
August 2005 from the courts or the police on either the warrant or the charges.
Fourth, he observed that none of Mr. Kioko’s family members living in Kenya had written to express concerns as to his return to Kenya or a possible threat from Mr.
Kiplagat and his associates, regarding the pending warrant.
[37]
The Officer concluded that in the absence of any
other corroborating evidence from Kenya, the arrest warrant, considered alone
or together with the other evidence adduced, did not represent a personalised,
forward-looking risk to Mr. Kioko. Overall, he found, based on the evidence
provided in the context of both pre-removal risk assessments, that Mr. Kioko’s
fears of persecution and cruel punishment upon return to Kenya, either directly or indirectly at the hands of Mr. Kiplagat, to be unsubstantiated.
[38]
In particular, he found “inadequate
evidence to support a conclusion that Mr. Kiplagat continues to bear a grudge
against [Mr. Kioko] since his departure almost eight years ago, and that he
will seek to perpetuate this vengeance via the 2005 arrest warrant.”
C.
The parties’ position
[39]
Mr. Kioko contends that the Officer came to
conclusions that were clearly addressed to his credibility. This, he says, was
the case in three specific instances: first, when the Officer indicated that
the affidavit concerning the car accident which resulted in the death of one of
Mr. Kioko’s uncle, appeared to have been tampered with; second, when he
mentioned that only he had raised the possibility of a link between the death
of the two uncles and Mr. Kiplagat and that in the absence of probative third
party evidence, he was unable to give much weight to this theory; third, when
he questioned the validity of the arrest warrant allegedly issued under Mr.
Kiplagat’s influence.
[40]
Mr. Kioko claims, as a result, that all three
factors prescribed in s 167 of the Regulations were present: the Officer did
not believe the prospective fear alleged by Mr Kioko; the allegations that were
not believed could have proven his forward-looking fear; and the sole reason
for rejecting his pre-removal risk assessment application was because he had
not proven such a fear. He further claims that the Officer had no basis to
disbelieve his allegations as his affidavit was evidence that was to be
believed if not contradicted.
[41]
The respondent submits that the Officer had
issue not with Mr. Kioko’s credibility but with the fact that the evidence
adduced was not sufficient to demonstrate he was facing a personalized
forward-looking risk upon his return to Kenya. In other words, the respondent claims
that the Officer took issue with the probative value of Mr. Kioko’s evidence.
[42]
On the weight to be accorded to Mr. Kioko’s
affidavit, the respondent claims that it was open to the Officer to require
more evidence to satisfy the legal burden of establishing a personalized
forward-looking risk on balance of probabilities.
D.
Analysis on the first issue
[43]
On a careful reading of the impugned decision, I
am of the view that it was premised on insufficiency of evidence rather than on
lack of credibility and that it was open to the Officer, as a result, to decide
not to hold a hearing.
[44]
Determining whether the requirements of s 167 of
the Regulations are present in a given case raises issues of an evidentiary
nature: burden and standard of proof on the one hand and credibility and
probative value of evidence, on the other hand. These notions are different
although that difference is sometimes tenuous.
(1)
Burden and standard of proof
[45]
As indicated previously, in pre-removal risk
assessments, the burden of proof is on the claimant. As in civil matters, this
burden requires the claimant to establish, on a balance of probabilities, that
he or she would be subject to a risk to life, or to a risk of cruel and unusual
treatment or punishment if returned to his or her country of nationality. This
is the standard of proof. In order to meet that burden in accordance with the
appropriate standard of proof, a claimant must present evidence to the Minister
of each of the facts that needs to be proven (Ferguson, above at para
22; Ozzoma v Canada (Minister of Citizenship and Immigration),
2012 FC 1167 at para 49, [2012] FCJ No 1232 (QL)).
[46]
However, not all evidence is of
the same quality. A claimant may have met the evidentiary burden of presenting
evidence of each fact that has to be proven but not the legal burden because
the evidence presented does not prove the facts required on a balance of
probabilities. As this Court stated in Ferguson, above, “the determination of whether the evidence presented meets the
legal burden will very much depend on the weight or probative value given to
the evidence presented” (Ferguson, above at para 24).
(2)
Credibility and probative value of
evidence
[47]
In his consideration of the evidence put before
him, the Minister may engage in two separate assessments: one of credibility
and one of probative value. An assessment as to probative value and
weight can however be made without making a determination as to credibility (Cho
v Canada (Minister of Citizenship and Immigration), 2010 FC 1299 at para
25, [2010] FCJ No 1673 (QL)). As a result, credibility may not be determinative
of an issue if the evidence submitted, whether credible or not, would simply
not have sufficient probative value (Prieto v Canada (Minister of
Citizenship and Immigration), 2010 FC 253 at para 38, [2010] FCJ No 307
(QL)).
[48]
This is where the notion of subjective and objective
fears comes into play. As I indicated earlier in these reasons, the concept of
risk in the context of pre-removal risk assessments is forward-looking. It is
therefore reasonable to expect an applicant to provide objective evidence in
support of his own allegations of risk which, in such context, is prospective
by definition (Haji v Canada (Minister of Citizenship and Immigration), 2009
FC 889 at para 10, [2009] FCJ No 1082 (QL)). As Madam Justice Dawson (now with
the Federal Court of Appeal) rightfully pointed out in Campos, above, “there is no legal basis for the submission that the reality of
an objective risk “is in the eye of the beholder” (Campos, above at para 20).
[49]
This means, as I understand it, that when an
allegation is critical to the pre-removal risk assessment, it is open to the
Minister’s delegate to require more evidence than the claimant’s own assertions
to satisfy the legal burden on balance of probabilities (Ferguson, above
at para 49).
(3) The
Officer’s decision turns on insufficiency of evidence, not credibility
[50]
Mr. Kioko had to show that but for the
credibility issue on his subjective fear, assuming there was one, a positive
decision on his pre-removal assessment request would likely have resulted. This
required Mr. Kioko to show that he would likely have been able to establish, on
a balance of probabilities, the objective component of his fear as that
objective component cannot always be fully established simply by relating to
one’s story in an affidavit. Sometimes, additional probative evidence will be
required (Prieto, above at para 36; Haji, above at para 10; Ozzoma,
above at paras 52-56; Adetunji, above at para 32).
[51]
This was the case here. Mr. Kioko did provide
supporting evidence but this evidence was however found to be of little
probative value in terms of establishing the objective component of the
critical element of his alleged prospective fear.
[52]
This critical element is the role his alleged
persecutor might play upon Mr. Kioko’s return to Kenya. Indeed, Mr. Kiplagat is
the central piece of Mr. Kioko’s story and alleged fear. According to that
story, Mr. Kiplagat is an influential figure in Kenya, especially in the world
of athletics and he is still interested in exacting vengeance against Mr. Kioko
since the interview of July 2005 where Mr Kioko denounced his involvement in
the selling of Kenyan athletes. As a result of this interview, Mr Kiplagat has
arranged for an arrest warrant to be issued against Mr. Kioko and still wants
him to be punished upon his return to Kenya. Since Mr. Kioko left that country
in 2005, two of his uncles have died in suspicious circumstances and he
believes that Mr. Kiplagat and his agents are involved in these deaths.
[53]
Mr. Kioko’s pre-removal risk assessment application was
rejected by the Officer as he found that there was insufficient probative
evidence to support a conclusion that Mr. Kiplagat continues to bear a grudge
against Mr. Kioko and that he will seek to perpetuate this vengeance via the
August 2005 arrest warrant upon Mr. Kioko’s return. The only objective evidence
of that alleged prospective fear laid in the unfortunate death of two of Mr.
Kioko’s uncles, one in 2010, the other in 2013.
[54]
I am of the view that it was open to the Officer to
ascribe a low probative value and place little weight on that evidence. Indeed,
even accepting that the uncle who died in a car accident in December 2010 had
been interrogated earlier in that year on Mr. Kioko’s whereabouts, the theory
of his death being attributed to Mr. Kiplagat or his associates was
speculative. The affidavit signed by one of Mr. Kioko’s other uncles on the
circumstances of this death only repeated that it occurred in “suspicious
circumstance”, without any kind of details allowing to establish any kind of a
link with Mr. Kiplagat.
[55]
The evidence regarding the death of Mr. Kioko’s other
uncle was even more remote to any kind of role Mr. Kiplagat may have played in
this death. Mr. Kioko is simply asserting in that regard that this death
occurred at about the same time his counsel was appearing before this Court in
April 2013. As Mr. Kioko has himself recognized, it is impossible to establish
any link between Mr. Kiplagat and these two events.
[56]
As for the hospital receipts related to the August 2005
incident that apparently left Mr. Kioko’s cousin badly injured, apart from the
dates and hospital location problems identified by the Officer, this was
evidence directed at past treatment and not to either current conditions or
future risks. As such, it had very little relevance (Campos, above at
para 21).
[57]
The Officer’s finding that this evidence was
insufficient to support Mr. Kioko’s assertion of a forward-looking risk linked
to Mr. Kiplagat’s desire for vengeance certainly fell within a range of
possible outcomes which are defensible in light of the facts and the law. I am
not satisfied that this conclusion was credibility-driven and that it required,
as a result, that an oral hearing be held. It was rather related to the lack of
probative value of the evidence submitted by Mr. Kioko on a critical element of
his alleged fear.
[58]
My conclusion is no different with respect to the
arrest warrant. Again, Mr. Kioko had to prove, on a balance of probabilities,
that upon his return to Kenya, Mr. Kiplagat would seek to perpetuate this
vengeance via the arrest warrant by having him arrested, arbitrarily detained
and convicted after having been deprived of a fair trial. After having
concluded that the evidence concerning the deaths of Mr. Kioko’s two uncles had
very little probative value, the Officer found that Mr. Kioko’s fear in this
regard lacked objective corroborative evidence.
[59]
As the Officer pointed out, no follow-up documents have
been adduced since the warrant was issued and Mr. Kioko left Kenya; Mr. Kioko
has had no contact with Mr. Kiplagat since that time; there were no letters
from family members, friends or former or current fellow Kenyan athletes living
in Kenya to express concerns as to possible threats from Mr. Kiplagat regarding
the pending arrest warrant or, more generally, as to Mr. Kioko’s return to
Kenya.
[60]
One important feature of the Officer’s decision was the
passage of time. He noted that eight years had passed since the 2005 interview
and Mr. Kioko’s subsequent departure from Kenya. He therefore looked for
evidence of some probative value that would establish that Mr. Kiplagat was
still seeking to perpetuate his vengeance on Mr. Kioko and still held the kind
of power to persecute him via the arrest warrant, as alleged. In other words,
the Officer asked himself, as I understand his decision, whether the 2005
alleged threats from Mr. Kiplagat could have dissipated over time. It was
certainly within the Officer’s purview to evaluate the fact of the passage of
time on the reality of the current risk and I see nothing unreasonable with
this approach (Campos, above at para 20; N.N.N. v Canada
(Minister of Citizenship and Immigration), 2009 FC 1281 at para 70, [2009]
FCJ No 1641 (QL) ; J.N.J. v Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 1088 at para 35, [2010] FCJ No 1361).
[61]
One could reasonably infer that this inquiry into the
passage of time was justified in the particular circumstances of this case as
there was evidence, as pointed out by the Officer, that Mr. Kioko was not the
first, and was not the last, athlete, to denounce the “selling” of young Kenyan
athletes to other countries.
[62]
Mr. Kioko relies on this Court’s decision in Liban,
above, but the two cases are distinguishable. In Liban, the Minister’s
delegate accepted that homosexuals and alcohol addicts were persecuted and
could even face the death penalty in the applicant’s country of origin but he
did not believe that the applicant was either a homosexual or an alcoholic
addict. This Court found that these findings were conclusions about the
applicant’s credibility and that they were central to the officer’s decision
since, if the applicant had been believed on these two crucial points, he would
likely have found him at risk (Liban, above at paras 13-14).
[63]
Here, the Officer accepted that Mr. Kioko had a
conflict with Mr. Kiplagat in 2005 and that two of his uncles had died in
tragic circumstances, but he was not satisfied that there was sufficient
probative evidence supporting a finding that Mr. Kiplagat was still, today,
interested in exacting vengeance on Mr. Kioko upon his return to Kenya and that
these unfortunate deaths were a sign of things to come in this respect.
[64]
Mr. Kioko has therefore not persuaded me that
the true basis of the Officer’s decision was credibility-driven and that, as a
result, the requirements of s 167 of the Regulations, which would have entitled
him to a hearing, were present.
IV.
Issue 2 : Was the Officer’s Decision Reasonable?
A.
Standard of Review
[65]
It is well established that deference is owed to
the Minister’s factual determinations, including his conclusions with respect
to the proper weight to be accorded to the evidence placed before him, when he
proceeds to a pre-removal risk assessment. In the absence of a failure to
consider relevant factors or reliance upon irrelevant ones, the weighing of the
evidence lies within the purview of the Minister and does not normally give
rise to judicial review (Ahmad, above at para 41).
[66]
The role of the Court in this context is not to
reweigh the evidence that was before the Minister but to ensure that the Minister’s
decision falls within a range of possible outcomes which are defensible in
light of the facts and the law. The fact that the Court may have reached a
different conclusion than the one reached by the Minister is irrelevant to the
analysis (Ahmad, above at para 41; Adetunji, above at para 22; Ferguson , above at para 49).
[67]
There is no dispute between the parties as to
the standard of review applicable to the Officer’s finding that Mr. Kioko has
failed to establish a forward-looking risk upon returning to Kenya.
B.
Mr. Kioko’s claim
[68]
Mr. Kioko contends that the Officer ignored or
capriciously rejected material facts and drew conjectural conclusions and that,
as a result, the impugned decision is unreasonable.
[69]
In particular, Mr. Kioko claims that the Officer
committed a reviewable error by arbitrarily choosing to believe the facts that led
him to leave Kenya in 2005 but not those respecting the arrest warrant and his
uncles’ death and by requiring the more recent facts be supported by
corroborative evidence. He says that this “relentless” suggestion that more
documents were needed set a higher standard than what is required by law.
[70]
Mr. Kioko also submits that although the Officer
made reference to the Refugee Protection Division’s decision accepting his asylum
request, he never analysed it and, in so doing, he ignored a crucial fact that
suggested a different outcome than the one he ultimately reached.
[71]
Finally, Mr. Kioko challenges, as pure
speculation, the Officer’s finding that the arrest warrant, if valid, as
alleged, could have prevented him from leaving Kenya or from getting a Canadian
visa.
C.
Analysis
[72]
My analysis on the first issue is in large part
dispositive of this second issue.
[73]
As I already indicated, it was open to the
Officer to ascribe a low probative value and place little weight on the
evidence of prospective fear based on the unfortunate death of Mr. Kioko’s two
uncles. The Officer did not question these deaths but he found this evidence
not to be helpful in establishing, on a balance of probabilities, any kind of a
link with Mr. Kiplagat and his alleged desire for vengeance.
[74]
The same can be said about the arrest warrant.
On a careful reading of the Officer’s decision, the key finding regarding the
arrest warrant clearly appeared to be that there was no probative corroborative
evidence establishing that Mr. Kiplagat, especially given the passage of time,
was still seeking to perpetuate his vengeance on Mr. Kioko and still held the
kind of power to persecute him via the arrest warrant.
[75]
Even assuming that it was still valid, there was
nothing on record, according to the Officer, to support a finding that the
arrest warrant itself represented a forward-looking personalized risk for Mr.
Kioko. It was Mr. Kioko’s burden to establish that prospective risk on a
balance of probabilities. The Officer concluded that he had not met his burden.
I cannot say that this was an unreasonable conclusion in light of the evidence that
was before the Officer.
[76]
This conclusion is dispositive of Mr. Kioko’s
claim that the Officer drew conjectural conclusions in his questioning of the arrest
warrant’s validity. This finding, as I read the decision, was not central to
the Officer’s overall conclusion that Mr. Kioko had not established that he was
facing a forward-looking risk upon returning to Kenya. What was central to his
conclusion was that there was inadequate evidence to support a finding that Mr.
Kiplagat continued to bear a grudge against Mr Kioko since his departure in
2005 and that he was still seeking to perpetuate this vengeance via the 2005
arrest warrant.
[77]
Even assuming, therefore, that the Officer drew
conjectural conclusions with respect to Mr. Kioko’s capacity to leave Kenya or
get a visa from the Canadian consular authorities when he left Kenya given the
alleged existence of the arrest warrant at the time, this, in my view, is not
enough to disturb the Officer’s decision.
[78]
In
the absence of sufficient evidence showing that Mr. Kiplagat still represented
a risk for Mr. Kioko upon his return to Kenya, the Officer looked at the
country conditions and found that the problems Kenya is facing affected all
Kenyans and did not point to an individualized risk to Mr. Kioko. This finding
was not challenged.
[79]
Again, the issue here is not whether, confronted
to the same body of evidence, I could have reached a different conclusion but
whether the Officer’s overall finding regarding Mr. Kioko’s evidence of a prospective
risk falls within a range of possible outcomes which are defensible in light of
the facts and the law. In my view, it does.
[80]
Finally, the fact that the Officer did not make an
explicit finding on the Refugee Protection Division’s decision accepting his
asylum claim is of no avail to Mr. Kioko. It is well settled now that a
decision-maker may not include in his reasons all the arguments, statutory
provisions, jurisprudence or other details the reviewing judge would have
preferred and is not required to make an explicit finding on each constituent
element leading to its final conclusion (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, at
para 16).
[81]
As long as the reasons allow the reviewing court
to understand why the tribunal made its decision and determine whether the
conclusion is within the range of acceptable outcomes, there is no basis for
intervention (Newfoundland and Labrador Nurses' Union, above, at para
16).
[82]
In my view, this is the case here. The Refugee Protection Division’s decision was not a “crucial
fact”, as Mr. Kioko contends. First, Mr. Kioko would have been found
inadmissible to enter Canada in 2005 if he had not concealed material facts in
his immigration forms. Second, as a result of the vacating order, this decision
is void; in theory, therefore, Mr. Kioko was never granted Canada’s protection. But most importantly, one could reasonably say that this decision is
relevant to establish past treatment, as oppose to future risk.
[83]
That decision from the Refugee Protection
Division was therefore highly problematic and certainly not a “crucial fact” in
the particular circumstances of the case. The absence of an explicit finding on
said decision in the Officer’s reasons was not enough to prevent the Court from
understanding why the Officer made his decision and determining whether the conclusion
he has reached falls within the range of acceptable outcomes.
[84]
For all of these reasons, Mr. Kioko’s judicial
review application is dismissed.
[85]
Neither party has proposed a question of general
importance. None will be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that
1.
The present application for judicial review is
dismissed.
2. No
question is certified.
“René LeBlanc”
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