Docket: IMM-7627-14
Citation:
2015 FC 700
Ottawa, Ontario, June 2, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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HAIDAR EL BOUNI
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Applicant
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and
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MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] of a decision by an inland enforcement officer [the
Officer] refusing the applicant’s Pre-Removal Risk Assessment application
[PRRA].
[2]
The applicant is seeking an order quashing the
Officer’s decision and referring the matter back for re-determination. The
applicant also asks the Court for two declaratory orders: (1) that the officer
must make a new evaluation of the danger facing the applicants rather than
following the Refugee Protection Division’s credibility findings, and (2) that
the situation in Libya and Article 3 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85
[the Convention Against Torture] must be addressed for this type of decision to
be valid.
[3]
For the reasons that follow, the application is
dismissed.
II.
Background
[4]
The applicant, a Libyan citizen, sought refugee
protection on the basis of his alleged fear of his in-laws in Libya. He claims that
these people have close ties to Muammar Khadafi and the Libyan government.
[5]
The applicant married his former wife, Ms, Imam
Ellafi, in December 2007 after only meeting her and her family on one prior
occasion. He alleges that he later found out that Ms. Ellafi’s maternal
grandfather and brother were suffering from a mental illness. Worried that this
would affect their future children, he and his wife consulted a doctor in May
or June 2008. He claims that the doctor told them that the mental illness in
Ms. Ellafi’s family is hereditary and there was a “great
risk” that their children would have it.
[6]
The applicant alleges that, based on this
information from the doctor, he refused to have a child with his wife and began
using contraception. She was upset by this and her family began indirectly threatening
him in July 2008. The situation worsened when a family meeting was held in her
family’s village on November 13, 2008, where the applicant alleges that his
father-in-law pointed a handgun at him and threatened to kill him if he
continued to refuse to have a child by December 1, 2009 or if he divorced her.
He returned to their apartment in Tripoli and allegedly received several more
threats in-person and over the phone from Ms. Ellafi’s family. He alleges that
her family is closely connected to the Libyan army and security forces. He
filed a police complaint and allegedly found a dismembered dog outside his
apartment door the next day. After this incident, the applicant left the
apartment. He alleges that his neighbours told him that Ms. Ellafi’s uncle and
several armed men were looking for him and that people in vehicles were
watching for him at the apartment. He sought refuge with a friend outside
Tripoli.
[7]
The applicant decided to seek refugee protection
in Canada since his mother lives in Montreal. He obtained a United States visa
and fled to Tunisia in January 2010. He then travelled to the United States
before crossing the border into Canada on January 12, 2010. A conditional
departure order was issued against him at that time.
[8]
On March 5, 2012, the Refugee Protection
Division [RPD] denied his refugee claim on the basis that his story lacked
credibility. His application for leave and for judicial review of the RPD
decision was refused on August 10, 2012.
[9]
The applicant applied for permanent residence in
the spouse or common-law partner category on May 22, 2013. This application was
denied and this Court dismissed his application for leave and judicial review of
this decision because he had failed to perfect the application.
[10]
Meanwhile, he sought and obtained a divorce from
Ms. Ellafi in Canada.
[11]
The applicant was offered a PRRA on July 29,
2013 and submitted his application on August 28, 2013. He included the following
documentation in support of his claim that he would face a high risk of
threats, death, and torture if he returned to Libya:
- Affidavit of Mr. Tarek Taggazi (applicant’s
friend), dated August 23, 2013;
- Medical report detailing the risk of mental illness in Ms.
Ellafi’s family, dated July 16, 2008;
- Certificate of divorce from Ms. Ellafi, dated August 14, 2013;
- Affidavit of Ms. Gertila Zehra Mohamed (applicant’s mother),
dated August 15, 2013;
- Letter from Mr. Haidar Abderaheem Ali El Bouni (applicant’s
father), dated August 14, 2013;
- Letter from the regional council attesting to the incidents of
November 2009, dated August 21, 2013;
- Letter from the mayor’s office attesting that the applicant
received threats in July 2010;
- Letter from Mr. Jamal El Haraty (applicant’s neighbour), dated
July 21, 2013; and
- Letter from Mr. Farag Mohamed Frag and Mr. Husni Abdulla
Mohamed Ben Aun (applicant’s neighbours), dated August 18, 2013.
III.
Impugned Decision
[12]
The Officer refused the PRRA on May 8, 2014,
concluding that the evidence submitted did not meet the criteria to be
considered new evidence. The Officer found that the affidavits and letters from
the applicant’s friends, parents and neighbours all referred to past events
that arose before the RPD refused the claim, even though they were written
after that point in time. The medical report and the mayor’s letter both pre-dated
the RPD decision, so the Officer found that it was reasonable to assume that
they could have been presented at the time of the RPD hearing and the applicant
had provided no explanation for why this would not have been possible.
[13]
In the Officer’s estimation, the only new fact
raised in the PRRA application was the applicant’s divorce from Ms. Ellafi and
this was not relevant because he was not arguing that he was at risk by reason
of this divorce.
[14]
The Officer acknowledged that there are ongoing
issues in Libya including violent armed clashes, a deficient judicial system
and “serious weakness in the areas of women’s rights
and freedom of expression.” However, the Officer concluded that the problems
raised in the country condition documentation were generalized and that the
applicant had failed to adduce any evidence to cause the Officer to contradict
the RPD’s assessment of risk.
[15]
Overall, the Officer concluded that the
applicant had not demonstrated that he would face more than a mere possibility
of persecution or that there are serious reasons to believe he would be
subjected to torture or a risk to his life or of cruel and unusual treatment or
punishment if returned to Libya.
IV.
Statutory Provisions
[16]
The following provisions of the Act are
applicable in these proceedings:
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Immigration
and Refugee Protection Act, SC 2001, c 27
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Loi sur
l’immigration et la protection des réfugiés, LC 2001, ch 27
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112. (1) A person in Canada, other than a person referred to in
subsection 115(1), may, in accordance with the regulations, apply to the
Minister for protection if they are subject to a removal order that is in
force or are named in a certificate described in subsection 77(1).
…
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112. (1) La personne se trouvant au Canada et
qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements,
demander la protection au ministre si elle est visée par une mesure de renvoi
ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
…
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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;
…
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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;
…
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[Emphasis added.]
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[Soulignement
ajouté.]
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V.
Issues
[17]
The applicant raised the following issues in his
application for leave and for judicial review, but indicated at the hearing
that he is only proceeding on the first two issues:
1.
Did the Officer err in concluding that the
documents submitted by the applicant did not constitute new evidence within the
meaning of section 113(a) of the Act?
2.
Did the Officer err in concluding that the
applicant did not demonstrate that he would be personally at risk if he were to
return to Libya?
3.
Does the PRRA process raise issues of
institutional bias or lack of independence?
4.
Is paragraph 113(a) of the IRPA consistent with
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]?
VI.
Standard of Review
[18]
With the withdrawal of issues by the applicant,
the remaining two entail the Officer’s assessment of the evidence in a PRRA.
This is fundamentally a fact-finding exercise. His or her determination of what
constitutes new evidence is a question of mixed fact and law reviewed on a
basis of reasonableness (Wang v Canada (Citizenship and Immigration),
2010 FC 799 at para 11, 191 ACWS (3d) 574, Negm v Canada (Citizenship and
Immigration), 2015 FC 272, 250 ACWS (3d) 317).
VII.
Analysis
A.
Did the Officer err in concluding that the
documents submitted by the applicant did not constitute new evidence within the
meaning of section 113(a)?
[19]
In Raza v Canada (Citizenship and
Immigration), 2007 FCA 385, 289 DLR (4th) 675, the Federal Court of Appeal held
that a PRRA officer must respect the RPD’s negative refugee determination “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.” The Court in Raza
summarized the following questions to be asked about the evidence in a PRRA
application:
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).
[20]
The Court further noted that a PRRA officer may
properly reject evidence if it cannot prove that the relevant facts as of the
date of the PRRA application are materially different from the facts of the RPD
(Raza at para 17). While a PRRA application may require consideration of
the same factual and legal issues as in the refugee claim, the PRRA process is
not intended to be an appeal or opportunity for the applicant to have the same
allegations and facts reassessed (Raza at para 12, Figurado v Canada
(Solicitor General), 2005 FC 347 at para 52). It is common ground that the
applicant must put his or her best foot forward before the RPD.
[21]
The RPD’s finding that the applicant is not
credible would preclude a positive finding in a PRRA unless he shows, with new
evidence, that a “material
change in circumstances has occurred since the prior determination by the RPD” (Barrios Silva v Canada (Citizenship and Immigration), 2012
FC 1294 at para 20).
[22]
The applicant is challenging the Officer’s
conclusion that the evidence he submitted was not new evidence within the
meaning of section 113 of the Act. The applicant claims that the Officer erred
by ignoring the documents referring to an ongoing search for him and threats
made since the RPD decision. I disagree. Most of the evidence introduced before
the PRRA Officer contravenes the express statutory limitations since it was
reasonably available to the applicant for his presentation at the RPD.
[23]
The respondent also submits that the PRRA
officer could not ignore the fact that the RPD had already determined that the
applicant’s allegations of risk were not credible and that this Court denied
leave for judicial review of the RPD decision. Moreover, I find that the
quality of much of this evidence is wanting. The father’s letter, mother’s
affidavit, and Mr. El Haraty’s letter contain vague and overly broad
allegations about an ongoing search and threats after the applicant’s
departure, without any details about when these occurred. They also reiterate
the allegations that were before the RPD and do not rebut the RPD’s credibility
findings in the sense of establishing that the relevant facts at the date of
the PRRA application were materially different from the facts as found by the
RPD.
[24]
The applicant also claims that the Officer
rejected this evidence on the basis that it came from family members and other
interested parties, which he submits is an error of law (Gonzalez Perea v
Canada (Citizenship and Immigration), 2008 FC 432). I disagree that the Officer
based his decision on this reasoning, but even had this been the case, it would
have been justified. The applicant referred to the case of Elezi v Canada
(Citizenship and Immigration), 2007 FC 240, [2008] 1 FCR 365 [Elezi].
At paragraph 45 of Elezi, Justice de Montigny cites with approval a
passage from section 4.999 of, Immigration Law and Practice (2nd ed.,
loose-leaf) by Lorne Waldman that:
Finally, I would argue that the nature of
the evidence itself should also be considered. If the evidence is highly
probative of the case and is credible evidence, then the officer should
generally exercise his or her discretion in favour of receiving the evidence
because of the importance of the issues at stake…
[25]
However, I find that confirmatory evidence of
family members and friends, which is not subject to cross-examination, is not
highly probative or credible evidence. Highly probative evidence is intrinsically
well-presented evidence from independent sources confirming a material fact in the
matter.
[26]
In any event, the respondent notes that there is
no evidence indicating that the Officer based this decision on who the letters
and affidavits were from – the Officer examined each piece of evidence and
concluded that they all referred to incidents that occurred prior to the RPD
hearing. The respondent refers the Court to Kaybaki v Canada (Citizenship
and Immigration), 2004 FC 32, 128 ACWS (3d) 784, where Justice Kelen
concluded that the officer did not err in rejecting similar evidence, which I
agree supports its position.
[27]
It is acknowledged that the question of weight
to be given to evidence in risk assessments is within the purview of the
Officer. The Officer is charged with determining if the applicant is subject to
risks that have arisen since the RPD decision, and in this case, the Officer’s
conclusion that the only new risk evidence related to the divorce was correct (Doumbouya
v Canada (Citizenship and Immigration), 2007 FC 1187 at paras 36-38,325 FTR
14).
[28]
The applicant’s evidence in this application is
that he did not obtain these documents at the time of the RPD hearing because
he was poorly advised by his former counsel. I agree with the respondent’s submission
that the Court should not consider this because the applicant has not followed
the requisite steps before pleading the incompetence of his former counsel. The
onus remained on the applicant to provide the relevant acceptable documentation
to establish his claim.
B.
Did the Officer err in concluding that the
applicant did not demonstrate that he would be personally at risk if he were to
return to Libya?
[29]
The applicant submits that the Officer erred in
assessing the documentary evidence concerning the current situation in Libya and his risk upon return. It is his position that all of the documents referred to by
the Officer show that there is an appalling human rights situation in Libya with
a complete breakdown of state authority.
[30]
I find that the country condition documentation
did not raise any new risk or new information that had come up since the RPD
decision (Selliah v Canada (Citizenship and Immigration), 2004 FC 872 at
para 38, 256 FTR 53). There is also the problem arising from the applicant’s
failure to demonstrate a connection between the generalized country conditions
and his personal situation, so it was reasonable for the Officer to reject the
application (Jarada v Canada (Citizenship and Immigration), 2005 FC 409
at para 28, [2005] FCJ No 506 (QL)). Accordingly, I find no reviewable error in
the Officer’s treatment of state protection issues.
VIII.
Conclusion
[31]
The application is dismissed. There were no
questions suggested for certification and none are certified.
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