Docket: IMM-6168-13
Citation:
2015 FC 86
Ottawa, Ontario, January 22, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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RAUHA NDESHIPAN SHILONGO
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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
I.
Nature of the Matter and Background
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act], the Applicant
seeks judicial review of a pre-removal risk assessment [PRRA] that denied her
request for protection under subsection 112(1) of the Act. The Applicant
asks the Court to set aside the PRRA decision and return the matter to a
different officer for re‑determination.
[2]
The Applicant is a 35 year old female citizen of
Namibia from the village of Onambone. Prior to her arrival in Canada, she had lived for nearly seven years in the United Kingdom where she had legal status as the
accompanying partner of her boyfriend. When her boyfriend returned to Namibia to attend to his family’s business, the Applicant lost her status in the United Kingdom. If she had gone back with him though, she feared that she would be “targeted for forced marriage, physical abuse, rape and death
from her uncle with the approval and assistance of her father.” She therefore
came to Canada instead on August 23, 2010, and immediately sought refugee
protection.
[3]
On October 25, 2011, the Applicant’s application
for protection was refused by the Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada. The RPD did not question the
Applicant’s story that her father had promised her in marriage to her uncle,
nor did it disbelieve that she was raped and beaten by her uncle several times
after she refused to marry him. However, the RPD found that the Applicant had
an internal flight alternative [IFA] in Windhoek, where the state could protect
her.
[4]
The Applicant applied for leave to judicially
review the RPD’s decision to this Court, but her application was dismissed on
February 9, 2012 (Shilongo v Minister of Citizenship and Immigration,
IMM-8437-11 (FC)).
[5]
On November 16, 2012, the Applicant applied for
the PRRA now under review, essentially relying on the same allegations of risk.
Subsequent to her PRRA application, the Applicant was scheduled for removal
from Canada on October 24, 2013, but such removal was deferred as she secured a
stay of removal from this Court until this judicial review application was
decided.
II.
Decision under Review
[6]
A senior immigration officer [the Officer]
rejected the Applicant’s PRRA on June 26, 2013. Although the Applicant’s
counsel had requested an interview, no oral hearing was held.
[7]
Since the Applicant’s claim for protection had
already been rejected by the RPD, paragraph 113(a) of the Act
applied and the Applicant was limited to presenting “only
new evidence that arose after the rejection [by the RPD] or was not reasonably
available, or that the applicant could not reasonably have been expected in the
circumstances to have presented”.
[8]
Citing that paragraph of the Act, the
Officer rejected several documents that were dated June 4, 2003, including
medical reports and a personal statement from the Applicant requesting police
protection. Although the Applicant’s counsel asserted that her brother had
requested these documents years ago and they had only recently been released,
the Officer did not accept that explanation. In any event, the Officer
determined that all these documents were irrelevant since the RPD had not
questioned the Applicant’s story or her credibility. The Officer also
determined that some of the correspondence from the Applicant’s siblings was
not new evidence, since all such correspondence did was confirm that the
Applicant’s uncle and father are still looking for her, a fact which the
Officer stated would not affect the RPD’s findings that Windhoek is an IFA for
the Applicant.
[9]
The same was not necessarily true of the
statutory declarations from the Applicant’s mother and brother, each dated
November 15, 2012. They stated that the Applicant’s uncle had visited her brother’s
house in Windhoek on August 26, 2012, demanding to know the Applicant’s
whereabouts, and that her uncle’s body guards had attacked the family. The
Officer discounted these declarations, however, as follows:
I note that these attestations come from
parties with a vested interest in a positive outcome for the applicant’s case.
Moreover, there is no indication that the applicant’s mother and brother made
any efforts to report the threats and attacks to the police in Windhoek. It is reasonable to expect that if they were attacked and threatened at their
home that they would have sought redress from the state, and I am not persuaded
that protection would not be reasonably forthcoming.
…Accepting the applicant’s evidence regarding
continued threats does not rebut the findings of state protection in the IFA of
Windhoek.
…I find that I have insufficient evidence
before me to allow me to arrive at a different conclusion from that of the
Board, particularly where the applicant has failed to rebut the state protection
findings of the Board in the IFA of Windhoek.
[10]
The Applicant also submitted to the Officer that
similarly situated individuals like her cousin have been known to disappear or
have been killed for refusing to enter a forced marriage, but the Officer
determined that there was not sufficient evidence to corroborate these
statements, nor any reference to her cousin’s disappearance in the
correspondence from any of her family members.
[11]
Finally, the Officer assessed the documentary
evidence submitted by the Applicant, even though it was not personal to her.
That evidence did not show that the country conditions had changed since the
RPD made its decision and, in fact, confirmed the existence of state protection
by showing that, while gender-based violence occurs, the perpetrators are
convicted. Thus, the Officer saw no reason to depart from the RPD’s decision,
and concluded that the Applicant could receive adequate state protection in Windhoek.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[12]
According to the Applicant, the Officer’s
finding that the new evidence did not rebut the findings of state protection in
the IFA of Windhoek is unreasonable. The Applicant argues, relying on the
decision in Suduwelik v Canada (Citizenship and Immigration), 2007 FC
326 at paragraph 23, that the Officer should not have discounted the statutory
declarations just because they came from interested parties. It was incumbent
on the Officer to consider the Applicant’s personal risk profile in light of
all the evidence, the Applicant says, and not simply to rely upon generalized
country condition evidence.
[13]
Furthermore, the Applicant says that the Officer
here did not apply the Chairperson Guidelines 4: Women Refugee Claimants
Fearing Gender-Related Persecution [Guidelines], even though the
Applicant’s claims should have engaged them. The Applicant points out that
there is no reference whatsoever to the Guidelines in the Officer’s decision
and that he was not sensitive to what the Guidelines suggest is a reasonable
approach. In this regard, the Applicant cites the decision in Talo v Canada (Citizenship and Immigration), 2012 FC 478 at paragraph 5, 408 FTR 102.
[14]
In addition, the Applicant states that the
Officer’s plausibility finding is not subject to as much deference as other credibility
findings. According to the Applicant, it was not reasonable for the Officer to
assume that the Applicant’s mother and brother would or should have gone to the
police after her uncle’s body guards had attacked them in Windhoek. The
Applicant submits that this plausibility finding was not supported by the
evidence (citing, e.g., Lozano Pulido v Canada (Citizenship and Immigration),
2007 FC 209 at paragraph 37, and Gjelaj v Canada (Citizenship and
Immigration), 2010 FC 37 at paragraphs 3- 4).
[15]
The Applicant urges the Court to take a step
back and look at the bigger picture. The Applicant’s mother had taken the
Applicant to the police on two occasions prior to her departure from Namibia, but there was no adequate state protection in either instance. According to the
Applicant, it is just as plausible that the past experiences of the Applicant
and her mother may have made her mother realize that there would likely be
ineffective or inadequate state protection. The Applicant submits that the
Officer should have analysed this aspect of the Applicant’s circumstances more
closely than he or she did.
[16]
As to the decision in Obeng v Canada
(Citizenship and Immigration), 2009 FC 61 [Obeng], upon which the
Respondent relies, the Applicant says that Obeng can be distinguished on
the basis that the applicant in that case was not credible and there was
contradictory information in the new evidence. Also, in Obeng, the
evidence was not rejected because of where it came from. The Applicant says
that the new evidence here clearly shows the agent of persecution has now visited
the proposed IFA of Windhoek, looking for the Applicant.
B.
The Respondent’s Arguments
[17]
The Respondent says that the applicable standard
of review in respect of the Officer’s decision is reasonableness (citing Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraphs 47-48, 53, [2008] 1 S.C.R. 190 [Dunsmuir]).
[18]
The Respondent states that it was clearly open
to the Officer to give the new evidence little weight. The Officer’s
plausibility finding, according to the Respondent, is reasonable and stands up
to scrutiny (citing Perea Duran v Canada (Minister of Citizenship and
Immigration), 2006 FC 43 at paragraph 15). Further, the Respondent argues
that there still is state protection available to the Applicant in Windhoek, even with the evidence of the renewed threats from her uncle. The Respondent
urges the Court to find that the Applicant needed to show more objective
evidence of the threat she allegedly faced (citing Obeng at paragraph
31). The Respondent also asks the Court to follow the decision in Obeng,
which is a similar case involving a female citizen of Ghana.
[19]
In any event, the Respondent submits that the
analysis of state protection done by the RPD and by the Officer here was
reasonable. Furthermore, the Respondent says that the nature of the new
evidence concerning the IFA available to the Applicant did not obligate the
Officer to explicitly consider the Guidelines (citing Obeng at paragraph
35, and Fernandez v Canada (Citizenship and Immigration), 2008 FC 232 at
paragraph 6).
[20]
The Respondent therefore submits that the
Officer’s decision was reasonable and that the reasons for it do not have to be
perfect (citing Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 14, [2011] 3 SCR
708).
IV.
Standard of Review and Analysis
A.
Standard of Review
[21]
Absent any question of procedural fairness, the
standard of review by which to assess a PRRA officer’s decision is
reasonableness (Jainul Shaikh v Canada (Citizenship and Immigration),
2012 FC 1318 at paragraph 16). Since a PRRA officer’s assessment of any new
evidence under paragraph 113(a) of the Act is essentially a question of
mixed fact and law, the decision attracts deference. Accordingly, this Court
may only intervene if the PRRA officer’s reasons are not justified,
transparent and intelligible, or if the decision is not within the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir at paragraph 47).
[22]
The Federal Court of Appeal in Raza v Canada
(Citizenship and Immigration), 2007 FCA 385 at paragraph 13, 289 DLR (4th)
675 [Raza], determined that a PRRA officer must respect a negative
refugee determination by the RPD “unless there is new
evidence of facts that might have affected the outcome of the RPD hearing if
the evidence had been presented to the RPD.” For the purposes of
assessing that, the Court of Appeal in Raza summarized the following
questions to be asked about the new evidence:
1. Credibility: Is the evidence
credible, considering its source and the circumstances in which it came into
existence? If not, the evidence need not be considered.
2. Relevance: Is the evidence
relevant to the PRRA application, in the sense that it is capable of proving or
disproving a fact that is relevant to the claim for protection? If not, the
evidence need not be considered.
3. Newness: Is the evidence new
in the sense that it is capable of:
(a) proving
the current state of affairs in the country of removal or an event that
occurred or a circumstance that arose after the hearing in the RPD, or
(b) proving a
fact that was unknown to the refugee claimant at the time of the RPD hearing,
or
(c) contradicting
a finding of fact by the RPD (including a credibility finding)?
If not, the evidence need not be considered.
4. Materiality: Is the evidence
material, in the sense that the refugee claim probably would have succeeded if
the evidence had been made available to the RPD? If not, the evidence need not
be considered.
5. Express statutory conditions:
(a) If the
evidence is capable of proving only an event that occurred or circumstances
that arose prior to the RPD hearing, then has the applicant established either
that the evidence was not reasonably available to him or her for presentation at
the RPD hearing, or that he or she could not reasonably have been expected in
the circumstances to have presented the evidence at the RPD hearing? If not,
the evidence need not be considered.
(b) If the
evidence is capable of proving an event that occurred or circumstances that
arose after the RPD hearing, then the evidence must be considered (unless it is
rejected because it is not credible, not relevant, not new or not material).
[23]
The Federal Court of Appeal further noted in Raza
that a PRRA application by a failed refugee claimant is not an appeal or
reconsideration of the decision of the RPD to reject a claim for protection.
Nevertheless, it may require consideration of some or all of the same factual
and legal issues as a claim for refugee protection. This being so, it was not
unreasonable for the Officer here to look to the RPD’s state protection
findings.
[24]
In Silva v Canada (Citizenship and
Immigration), 2012 FC 1294 at paragraph 20, Madam Justice Elizabeth Heneghan
stated that, because of Raza, “a finding by the
RPD that a claimant has an IFA or can access state protection or is not
credible would preclude a positive finding in a PRRA unless the claimant shows,
with new evidence, that a material change in circumstances has occurred since
the prior determination by the RPD”.
[25]
The essential issue now before the Court,
therefore, is whether it was reasonable for the Officer not to find that a
material change in circumstances has occurred since the prior determination by
the RPD.
B.
Analysis
[26]
The RPD had assessed and determined that there
was an IFA for the Applicant in Windhoek in view of the fact that she came from
a traditional community and feared forced marriage, physical abuse, rape and
death at the hands of the uncle to whom she had been promised, her father, and
their agents. This fear was present while she lived in the village of Onambone until she fled Namibia with her boyfriend in December, 2003. Neither the
RPD nor the Officer here questioned the Applicant’s credibility or the fact she
has been subjected to physical abuse, rape and death threats from her uncle
with the approval and assistance of her father.
[27]
The test to determine whether an IFA is
available is set out in Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706 at 709-710, 140 NR 138 (CA) [Rasaratnam].
The decision-maker must be satisfied on a balance of probabilities that: (1) there
is no serious possibility that the claimant will be persecuted in the proposed
IFA; and (2) conditions in the proposed IFA are such that, in all the
circumstances, it would be reasonable for the claimant to seek refuge there.
[28]
In this case, the Officer found that the new
evidence did not rebut the finding that the Applicant had a viable IFA in Windhoek. The Officer concluded that: “I have insufficient evidence
before me to allow me to arrive at a different conclusion from that of the
Board, particularly where the applicant has failed to rebut the state
protection findings of the Board in the IFA of Windhoek”.
[29]
Part of that finding was based on the Officer’s
view that the sworn statements could not be trusted because they were from the
Applicant’s family members. In my view, that was unreasonable. Although it is
often better for such evidence to be corroborated (Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067 at para 27, 74 Imm LR (3d) 306), it
was still sworn testimony, and it is difficult to know what other evidence
could reasonably be expected in a situation like this. After all, a threat such
as that alleged would never have been made to someone completely uninterested
in the Applicant’s life, and if the sworn statements are true then the
Applicant’s mother and brother were the only witnesses; there could be no
evidence of the incident of which they are not the ultimate source. As Mr.
Justice Russel Zinn observed in a similar situation in Rendon Ochoa v Canada
(Citizenship and Immigration), 2010 FC 1105 at para 10, 93 Imm LR (3d) 113,
they were “uniquely placed to provide evidence and are
indeed the only people who could properly provide the evidence that is sworn to
in their statements.”
[30]
This evidence was also important. Before the
RPD, the only threat that the Applicant had ever faced was in the village of Onambone. Now that threat had materialized in the very place that the RPD found
was a viable IFA for the Applicant, and it was unreasonable to find that would
not likely have changed the RPD’s analysis.
[31]
I agree with the Applicant that in these
circumstances, it was incumbent upon the Officer to consider the Applicant’s personal
risk profile in light of all the evidence, and not simply rely upon generalized
country condition evidence. The Officer should have assessed whether there was
any serious possibility that the Applicant would be persecuted in the proposed
IFA and, also, whether the conditions in the proposed IFA were such that, in
all the circumstances, it would be reasonable for the Applicant to seek refuge
there.
[32]
In this case, the Officer did not reasonably account
for the fact that the Applicant’s agent of persecution had made his way to the
alleged IFA. Moreover, the Officer did not address whether it would be
reasonable for the Applicant to seek refuge in the IFA in view of the fact that
her uncle had recently been looking for her there.
[33]
I also agree with the Applicant that Obeng,
while superficially similar to this case, is not determinative. Although Obeng
also was a case of a woman being subjected to a forced marriage and allegations
of abuse, the applicant in that case failed to establish that her life and her
safety were threatened or that she would be at risk if returned to Ghana. That is unlike the Applicant here, whose credibility and fear were not questioned by
the RPD or the Officer. In addition, the documents from interested parties
which had been considered by the PRRA officer in Obeng had fundamental
flaws by not being dated and not signed, unlike the statutory declarations from
the Applicant’s mother and brother in this case.
V.
Conclusion
[34]
In view of the foregoing reasons, it is
unnecessary to address the other arguments raised by the parties, since I find
that it was not reasonable for the Officer to rely simply upon generalized
country condition evidence and not consider or assess the Applicant’s personal
risk in light of the new evidence. The Officer’s decision is not defensible in
view of the facts or the law.
[35]
In the result, the Applicant’s application for
judicial review is allowed, the matter remitted to another immigration officer
for re-determination and there shall be no award of costs. No serious question
of general importance is certified.
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