Docket: IMM-7850-14
Citation:
2015 FC 701
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Montréal,
Quebec, June 3, 2015
Present: The Honourable Mr. Justice Shore
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BETWEEN:
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BALEMA NEBIE
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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.
Introduction
[1]
This is an application
for judicial review under the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA) of a decision by a pre-removal
risk assessment (PRRA) officer concluded that the applicant would not be
at risk of persecution or torture, to a risk to his life or to a risk of cruel
and unusual treatment or punishment if he returned to Burkina Faso.
II.
Facts
[2]
The applicant is a 43-year-old citizen of Burkina
Faso. He is HIV positive.
[3]
After obtaining a visa from the Canadian
authorities in Abidjan, Côte d’Ivoire, the applicant arrived in Canada on November 28,
2009, and made a refugee claim soon after.
[4]
In support of his refugee claim, the applicant
alleged the following facts.
[5]
On December 13, 2008, on the anniversary of
the deceased journalist Norbert Zongo, the applicant, who worked as a taxi
driver, was arrested by the police, who wrongly believed that the applicant
participated in an illegal student demonstration. The applicant was detained
for a period of four months during which he was tortured and deeply humiliated.
Following his escape from prison in April 2009, the applicant fled Burkina Faso
for Canada. The applicant’s spouse allegedly informed him that one week after
his escape from prison, the authorities in Burkina Faso were looking for him at
his home (RPD Decision, Applicant’s Record, at pp 45 to 52).
[6]
On March 19, 2013, the Refugee Protection
Division (RPD) rejected the applicant’s refugee claim. Although the RPD found the
applicant credible, it found that the applicant had not shown that he was persecuted
and that the applicant had an internal flight alternative (IFA) in his home
village of Koualio.
[7]
On July 15, 2013, the Federal Court dismissed the
application for judicial review filed by the applicant against this decision.
[8]
On March 11, 2014, the applicant filed an application
for permanent residence based on humanitarian and compassionate considerations,
which was dismissed on September 18, 2014. This application was subject to
an application for leave and judicial review in docket IMM‑7852‑14.
[9]
On June 12, 2014, the applicant filed a PRRA
application under subsection 112(1) of the IRPA. This application was dismissed
on September 18, 2014, and is the subject of this judicial review.
III.
Impugned decision
[10]
In his assessment, the PRRA officer considered
the new evidence submitted by the applicant in support of his PRRA application:
•
Documentation that shows that the applicant is HIV
positive and that he is receiving treatment;
•
Articles and reports that address country
conditions in Burkina Faso;
•
Letter from Gilles Barette, Director of Centre
Afrika, dated October 29, 2013.
(PRRA
decision, Certified Tribunal Record, at p 7)
[11]
First, the officer familiarized himself with the
RPD’s conclusions and the risks raised by the applicant, such as political
instability and the lack of access to health care to treat HIV in Burkina Faso.
[12]
Among other things, the PRRA officer noted that the
applicant had not established that the authorities in Burkina Faso had been looking
for him since April 2009 and that he would be covered by sections 96 and 97 of the
IRPA.
[13]
The PRRA officer recognized that the applicant is
HIV positive. The officer also read the applicant’s argument regarding the lack
of access to health care to treat HIV in his home village of Koualio, located
140 km from the capital of Burkina Faso.
[14]
Furthermore, the officer found that the evidence
relating to the lack of health care to treat HIV must be set aside in
accordance with subparagraph 97(1)(b)(iv) of the IRPA, which
provides that the threat or the risk raised in a PRRA application must not result
from a state’s inability to provide adequate health care.
[15]
The officer then analyzed the documentary
evidence filed by the applicant. The officer considered that the evidence relating
to the general conditions of the country do not show that the applicant is
exposed to a personalized risk in Burkina Faso. Furthermore, the officer noted
that the evidence does not show that the applicant would still be sought by the
authorities for the alleged events, which took place between 2008 and 2009.
[16]
The officer then considered the letter from Gilles
Barette, Director of Centre Afrika, and found that this letter had no probative
value. The officer noted that the author of the letter lives in Canada and was
not a witness to the threats against the applicant and that he did not indicate
the sources of the information provided.
[17]
Finally, the PRRA officer found that the
applicant did not show that he is exposed to a personalized risk or that his personal
situation differs from that of the other inhabitants of Burkina Faso.
IV.
Statutory framework
[18]
The relevant provisions of the IRPA relating to
a PRRA application are the following:
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Application for protection
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Demande de protection
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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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Consideration for application
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Examen de la demande
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113.
Consideration of an application for protection shall be as follows:
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113. Il est disposé de la demande
comme il suit :
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(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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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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(b) a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required;
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b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
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(c) in the case of an applicant not described in subsection
112(3), consideration shall be on the basis of sections 96 to 98;
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c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
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(d) in the case of an applicant described in subsection
112(3) — other than one described in subparagraph (e)(i) or (ii) —
consideration shall be on the basis of the factors set out in section 97 and
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d) s’agissant du demandeur visé au
paragraphe 112(3) — sauf celui visé au sous-alinéa e)(i) ou (ii) —, sur la
base des éléments mentionnés à l’article 97 et, d’autre part :
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(i) in the case of an applicant for protection who is
inadmissible on grounds of serious criminality, whether they are a danger to
the public in Canada, or
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(i) soit du fait que le demandeur interdit de territoire pour
grande criminalité constitue un danger pour le public au Canada,
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(ii) in the case of any other applicant, whether the
application should be refused because of the nature and severity of acts
committed by the applicant or because of the danger that the applicant
constitutes to the security of Canada; and
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(ii) soit, dans le cas de tout autre demandeur, du fait que
la demande devrait être rejetée en raison de la nature et de la gravité de
ses actes passés ou du danger qu’il constitue pour la sécurité du Canada;
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(e) in the case of the following applicants, consideration
shall be on the basis of sections 96 to 98 and subparagraph (d)(i) or (ii),
as the case may be:
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e) s’agissant des demandeurs ci-après,
sur la base des articles 96 à 98 et, selon le cas, du sous-alinéa d)(i) ou
(ii) :
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(i) an applicant who is determined to be inadmissible on
grounds of serious criminality with respect to a conviction in Canada
punishable by a maximum term of imprisonment of at least 10 years for which a
term of imprisonment of less than two years — or no term of imprisonment —
was imposed, and
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(i) celui qui est interdit de territoire pour grande
criminalité pour déclaration de culpabilité au Canada pour une infraction à
une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et
pour laquelle soit un emprisonnement de moins de deux ans a été infligé, soit
aucune peine d’emprisonnement n’a été imposée,
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(ii) an applicant who is determined to be inadmissible on
grounds of serious criminality with respect to a conviction of an offence
outside Canada that, if committed in Canada, would constitute an offence
under an Act of Parliament punishable by a maximum term of imprisonment of at
least 10 years, unless they are found to be a person referred to in section F
of Article 1 of the Refugee Convention.
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(ii) celui qui est interdit de territoire pour grande
criminalité pour déclaration de culpabilité à l’extérieur du Canada pour une
infraction qui, commise au Canada, constituerait une infraction à une loi
fédérale punissable d’un emprisonnement maximal d’au moins dix ans, sauf s’il
a été conclu qu’il est visé à la section F de l’article premier de la
Convention sur les réfugiés.
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V.
Issues
[19]
The applicant raised three issues before the
Court, reproduced below:
1.
Did the officer err in law by not considering
the applicant’s medical condition in his PRRA, in particular regarding the
presumed internal flight alternative?
2.
Did the officer err in law in his analysis of
the personal and documentary evidence?
3.
Does the immigration officer’s decision respect
the fundamental rights protected by the Canadian Charter and by international
law, particularly the Convention Against Torture?
[20]
The Court considers that the following issue is
determinative in this case: Is the PRRA officer’s decision reasonable considering
all of the evidence?
VI.
Parties’ arguments
A.
Applicant’s arguments
[21]
The applicant raised three grounds in support of
his application.
[22]
First, the applicant alleged that the officer
erred in neglecting to consider the applicant’s medical evidence. The applicant
states that his being HIV positive is determinative of his PRRA application and
is closely related to there being no internal flight alternative in the
location proposed by the RPD, which is in a rural area. The applicant alleged, first,
that he risks being persecuted in the IFA location contemplated because he is
HIV positive and that, second, access to health care for individuals with HIV in
Burkina Faso, especially in rural areas, is minimal, even non-existent.
[23]
Then, the applicant alleged that the officer neglected
to consider all of the documentary evidence, including that of the existing
conditions in Burkina Faso. The applicant alleged that the officer’s analysis is
incomplete and does not take into account the guidelines established by the UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status.
[24]
Furthermore, the applicant argued that it was unreasonable
for the officer to reject the letter from Gilles Barette on the ground that he
lives in Canada. The applicant pointed out that his experiences of detention,
torture and escape from prison were recognized by the RPD and that Mr. Barette’s
opinion, including his personal experience in Burkina Faso is relevant to clear
up the applicant’s situation as to the possibility of his removal, merited
being studied more closely.
[25]
Moreover, the applicant alleged that the applicant’s
removal to Burkina Faso did not respect the fundamental rights protected by
sections 7 and 12 of the Canadian Charter of Rights and Freedoms, and Canada’s
obligations under the standards of international law as codified in the Geneva
Convention, the International Covenant on Civil and Political Rights,
the American Declaration of the Rights and Duties of Man and the Convention
Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
[26]
Alternatively, the applicant argued that the
applicant falls under subsection 108(4) of the IRPA, which provides that refugee
status is available to the applicant if he shows that he has “compelling reasons” to refuse to seek the protection of
Burkina Faso. The applicant considers that the torture he experienced for four months
of arbitrary detention and the fact that he was weakened by his medical
condition, favour the recognition of compelling reasons in the circumstances.
B.
Respondent’s arguments
[27]
The respondent argued that the PRRA officer’s
conclusion that the applicant falls within subparagraph 97(1)(b)(iv)
of the IRPA, is consistent with the case law of the Federal Court and the Federal
Court of Appeal (Spooner v Canada (Minister of Citizenship and Immigration),
2014 FC 870 at paras 10 to 34 (Spooner)). The respondent pointed
out that the applicant did not prove the lack of access to health care in
Burkina Faso. It was to this very conclusion that Justice André F.J. Scott came
on November 13, 2013, so as to dismiss the applicant’s judicial stay
request in a second deferral of removal request filed by the applicant (docket
IMM‑7113‑13).
[28]
As for the other evidence filed by the applicant
in support of his PRRA application, it was open to the officer to consider it
insufficient to show that the applicant would be personally exposed to a risk
if he were to return to Burkina Faso. Among other things, the respondent pointed
out that the applicant submitted no evidence in support of his claim that he
would be discriminated against by his family if he were to return to his home
village because he is HIV positive; therefore, the applicant cannot criticize the
officer for omitting this argument. Furthermore, the applicant did not submit
evidence regarding the alleged risk in Ouagadougou, the capital of Burkina
Faso.
[29]
Moreover, the respondent noted that it is not up
to the Court to substitute its opinion for that of the officer with respect to
the probative value given to the evidence considered admissible by the officer under
paragraph 113(a) of the IRPA (Mbaioremem v Canada (Minister of
Citizenship and Immigration), 2013 FC 791 at paras 26 to 29 (Mbaioremem)).
[30]
Subsequently, by relying on this Court’s case
law, the respondent alleged that the applicant’s arguments relating to the Charter
are not justified (Spooner, above; Mbaioremem, above).
[31]
Moreover, the respondent pointed out that the
applicant’s argument regarding the compelling reasons under subsection 108(4)
of the IRPA is a new argument, which cannot be raised in reply. Alternatively, the
respondent argued that subsection 108(4) of the IRPA does not apply in
this case since cessation of refugee protection is not at issue (B.R. v
Canada (Minister of Citizenship and Immigration), [2006] FCJ 337 at paras 30
and 31).
VII.
Standard of review
[32]
The standard of review applicable to conclusions
of fact and mixed fact and law reviewed by the PRRA officer is the standard of
reasonableness (Kovacs v Canada (Minister of Citizenship and Immigration),
[2010] FCJ 1241 at para 46; Aleziri v Canada (Minister of Citizenship
and Immigration), [2009] FCJ No 52 at para 11).
[33]
The reasonableness of a decision is “concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at para 47 (Dunsmuir)).
VIII.
Analysis
[34]
An individual subject to a removal order can
avail himself of a PRRA under subsection 112(1) of the IRPA, in compliance
with Canada’s domestic and international obligations and the principle of non-refoulement
(Figurado v Canada (Solicitor General), [2005] FCJ 458 at para 40 (Figurado)).
[35]
Paragraph 113(a) of the IRPA provides
that in a PRRA, a failed refugee claimant can only present evidence that arose
after his application was rejected or was not reasonably available or, if it
was, that it could not reasonably have been expected in the circumstances to be
presented, at the time of the rejection.
[36]
The limits imposed by the admissible evidence at
this stage relies on the logic that the PRRA is not an appeal of a decision of
the Immigration and Refugee Board, or a de novo review of a refugee
claim (Mikhno v Canada (Minister of Citizenship and Immigration), 2010 FC
385 at para 23 (Mikhno); Figurado, above at para 52). This
principle was set out by the Federal Court of Appeal in Raza v Canada (Minister
of Citizenship and Immigration), [2007] FCJ 1632 at paras 12 to 15):
[12] 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 refugee protection. Nevertheless, it may require
consideration of some or all of the same factual and legal issues as a claim
for refugee protection. In such cases there is an obvious risk of wasteful and
potentially abusive relitigation. The IRPA mitigates that risk by limiting
the evidence that may be presented to the PRRA officer. …
[13] As I read paragraph 113(a), it is based
on the premise that a negative refugee determination by the RPD must be
respected by the PRRA officer, 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. Paragraph 113(a) asks a number of questions, some expressly and
some by necessary implication, about the proposed new evidence. …
[14] The first four questions, relating to
credibility, relevance, newness and materiality, are necessarily implied from
the purpose of paragraph 113(a) within the statutory scheme of the IRPA
relating to refugee claims and pre removal risk assessments. The remaining questions
are asked expressly by paragraph 113(a).
[15] I do not suggest that the questions
listed above must be asked in any particular order, or that in every case the
PRRA officer must ask each question. What is important is that the PRRA
officer must consider all evidence that is presented, unless it is excluded on
one of the grounds stated in paragraph [13] above.
[Emphasis added.]
[37]
In this case, the reasons of the PRRA officer and
the certified record reveal that the officer considered and weighed all the evidence,
including the new evidence filed by the applicant.
[38]
Specifically, the officer clearly sets out the
reasons supporting his decision to give little or no probative value to some evidence.
[39]
Among other things, it was open to the officer to
find that the applicant did not show that the lack of health care in Burkina
Faso stemmed from discriminatory treatment or was linked to persecution, which
would have resulted in excluding the application of subparagraph 97(1)(b)(iv)
of the IRPA. It was also open to the officer to conclude that the letter from
Gilles Barette had no probative value with respect to the risks alleged by the
applicant.
[40]
Although the applicant disagreed with the weight
given respectively to the evidence submitted, this does not render the officer’s
decision unreasonable. The assessment of the probative evidence in the new evidence
submitted by the applicant is within the expertise of the PRRA officer. In this
view, the Court must show deference toward the officer’s conclusions (Mikhno,
above at para 27).
[41]
Finally, the Court considers that the evidence in
the record does not help determine Charter questions raised by the applicant (Spooner,
above at para 29; Covarrubias v Canada (Minister of Citizenship and
Immigration), [2006] FCJ No 1682 at para 60).
IX.
Conclusion
[42]
Considering the above, the Court finds that the
officer’s decision is reasonable, in accordance with the principles set out by the
Supreme Court of Canada in Dunsmuir, above.
[43]
Therefore, the application for judicial review is
dismissed.
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