Docket: IMM-5549-13
Citation:
2015 FC 15
Ottawa, Ontario, January 7, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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OLUWAFUNMILAYO ADESHINA
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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
[1]
The applicant submits that the Pre-Removal Risk
Assessment [PRRA] decision should be set aside and her application returned for
re-determination because the officer misinterpreted paragraph 113(a) of Immigration
and Refugee Protection Act, SC 2001 c 27, unreasonably engaged with the
evidence, and failed to assess the applicant’s risk in being returned to Nigeria. For the reasons that follow, I agree.
[2]
The applicant entered Canada on June 25, 2011,
using someone else’s passport. The basis of her claim was that she was
Nigerian and feared being killed by members of the Boko Haram. She says that
her husband’s mother was forcing them to join Boko Haram and that the group
persecuted her and her husband because they refused.
[3]
The Refugee Protection Division [RPD] did not
accept her refugee claim. It was rejected based on her failure to establish
her identity as Nigerian and based on credibility. The applicant produced her
Nigerian driver’s license at the hearing, but its authenticity was questioned
by the RPD. The RPD noted that she was unable to produce a passport, birth
certificate, or marriage certificate. The decision does not address country
conditions in Nigeria, because the RPD held on a balance of probabilities that
the applicant failed to establish her identity.
[4]
With her PRRA application the applicant
submitted documentary evidence including:
a)
Marriage and baptism certificates;
b)
Testimonies concerning her identity, her
kidnapping and persecution,
c)
Correspondence supporting the validity of her
driver’s licence, which validity the Board had questioned;
d)
Medical assessments indicating that the
applicant had previously suffered physical abuse;
e)
Psychological assessments and research
concerning the circumstances of the applicant when she testified before the
RPD; and
f)
Country condition documents concerning the
current threat posed by book Haram and the status of state protection.
[5]
The officer held that the applicant failed to
submit “new” evidence pursuant to paragraph 113(a)
of the Act sufficient to persuade him to arrive at a different conclusion than
the RPD. Specifically, the officer held that the documents that the applicant
submitted did not relate to new developments:
[C]ase law insisted the new evidence relate to
new developments, either in country conditions or in the applicant’s personal
situation, instead of focusing on the date the new evidence was produced, to
prevent that a failed refugee claimant could easily muster ‘new’ affidavits and
documentary evidence to counter the Board’s finding and bolster her story,
turning the process a PRRA application into an appeal of the Board’s decision. I
find this to be the case. [sic]
[6]
The officer assigned little weight to the expert
opinions offered because they were “not experts on country
conditions in Nigeria” and their opinions are based on facts as told by
the applicant. The officer concluded:
I have reviewed the application, and current
documentary evidence, and I am satisfied that country conditions have not
deteriorated since the Board’s rejection so as to place the applicant at risk
of persecution, at risk of torture, or risk to life, or at risk of cruel and
unusual treatment or punishment in Nigeria. This application is not allowed.
[7]
The officer did not address either the baptism
or marriage certificate and did not conduct an analysis of the country
conditions in Nigeria.
[8]
The parties agree that the standard of review
for the application of paragraph 113(a) of the Act is reasonableness: See Aboud
v. Canada (Minister of Citizenship and Immigration), 2014 FC 1019.
However, the interpretation of paragraph 113(a) of the Act has previously been held
to be reviewable on the standard of correctness: Hillary v. Canada (Minister of Citizenship and Immigration), 2011 FC 1462.
[9]
Paragraph 113(a) of the Act reads as follows:
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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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[10]
The Federal Court of Appeal in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 [Raza] at para
13, interpreted the “newness” requirement of this provision
as follows:
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.
[11]
The test for “newness”
described above is disjunctive, given the multiple use of the word “or”. Accordingly, documents produced by an applicant
are “new” if they are capable of contradicting a
finding of fact by the RPD (including credibility findings). The officer erred
in interpreting the case law to mean that documents are new only if they
can be used to prove a new country condition or changes in the applicant’s
circumstances. On this basis alone, the decision must be set aside.
[12]
The failure of the officer to address the
identity documents (birth and baptismal certificates) presented is another
reason for setting the decision aside. This evidence is clearly material. It
may be found not to be credible, and it may be that an officer would reject it
on other grounds; however, the evidence cannot simply be ignored. Similarly,
the letters and emails submitted by the applicant that speak to the credibility
of her story should also have been addressed. They cannot be dismissed only
because they do not speak to a change in the situation of the applicant since
the RPD decision.
[13]
Lastly, the officer did not properly consider
the psychological evidence. It was dismissed for being based on facts that he
considered not credible; however, the applicant submitted the evidence of her
psychological condition at the time of the RPD hearing as relevant to its
credibility findings. Such evidence was allowed as new in Abbasova v Canada (Minister of Citizenship and Immigration), 2011 FC 43.
[14]
It is deeply troubling to the court, and it is
unreasonable, and possibly contrary to law, that the applicant is to be removed
to Nigeria without there being any real assessment of her risk. The RPD did no
such analysis having rejected her claim on the basis of the failure to
establish her identity. The officer conducting the PRRA only noted that risk
circumstances had not changed in Nigeria since the RPD decision without
assessing what that risk was. The Supreme Court of Canada in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, makes it clear that a
person has a right to a proper risk assessment prior to removal. It may be
that this applicant is not at risk; however, that has never been determined.
[15]
Neither party proposed a question for
certification.
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