Docket: IMM-2961-15
Citation:
2016 FC 127
Ottawa, Ontario, February 3, 2016
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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GORANCHO
TRAJCHEVSKI (AKA GORANCHO TRAJECHVSKI), MARIJA TRAJCHEVSKI (AKA MARIJA
TRAJECHVSKI), MILA TRAJCHEVSKI (AKA MILA TRAJECHVSKI)
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP & IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
negative pre-removal risk assessment (“PRRA”) decision of a senior immigration
officer (“Officer”) dated May 14, 2015 and made pursuant to ss 112 and 113 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).
Background
[2]
The Applicants are citizens of Macedonia. The
Principal Applicant is ethnic Roma, his wife, Marija, is ethnic Macedonian and
they describe their minor daughter, Mila, as being of mixed ethnicity.
[3]
On May 14, 2015 the Officer rendered the
negative PRRA decision concerning the family. However, it was not until June
11, 2015 that counsel for the Applicants received notice of the decision and
the Applicants were not served with the decision until June 22, 2015. In the
interim, on June 5, 2015, the Applicants had made further submissions in
support of their PRRA application, including documentary evidence of events in
Macedonia which occurred in May 2015.
[4]
The Applicants filed their application for
judicial review on June 24, 2015 and sought a stay of their removal which was
scheduled for August 6, 2015. The stay was denied on July 23, 2015.
Decision Under Review
[5]
The Officer noted that the Applicants had stated
that they were seeking protection because of ethnic tensions in their country
and because of discrimination against the Principal and Minor Applicants. Further,
that their counsel had submitted that the situation in Macedonia is worse now
for the Applicants than it had been in December 2013 when the Refugee Protection
Division (“RPD”) issued its decision and, as a Roma family, that they would
suffer persecution in Macedonia.
[6]
The PRRA Officer noted that his function was to
determine if the new evidence supplied by the Applicants demonstrated either
that they are at risk or that there has been a significant enough change to
conditions in their home country such that the state protection analysis
concluded by the RPD is no longer valid.
[7]
The Officer assessed the new evidence, including
a letter from the Principal Applicant’s father which, for the reasons set out
in the decision, he afforded little weight.
[8]
The Officer then addressed the submission by the
Applicants’ counsel that Roma are not allowed to leave Macedonia as a result of
the European Union’s (“EU”) warning that it may reintroduce visa restrictions
against Macedonia because of refugee claims made in other EU countries. The
PRRA Officer referred to an article in the Penn State Law Review from 2014 (“Penn
State Article”) which reported that the travel restrictions placed on Roma went
into effect in May 2011. The Officer stated that, because the Applicants
travelled to Canada in that month, they were not personally affected by the bar.
Further, that the article made suggestions as to recourse, should they have
problems upon their return, and that as of June 2014 passports are no longer
seized from Macedonians who return to the country following failed refugee
claims.
[9]
The Officer then assessed the current country
conditions in relation to state protection and found that, although Roma face
discrimination, the evidence did not show a significant change in country
conditions from the time of the RPD’s decision. Nor had the Applicants provided
evidence that would show that state protection is not available to them. As
the evidence before the Officer did not demonstrate a basis for a positive PRRA
decision, the application was refused.
Issues
[10]
Although not raised by either party in written
submissions, in my view, a preliminary issue was whether the application is
moot. However, counsel for the Respondent advised that he had no instructions
on the point nor was he aware of whether the Applicants had been removed when
their stay was denied. Counsel for the Applicants did not enlighten the Court
on this point. Accordingly, the question of mootness is not addressed in these
reasons.
[11]
The issues as are as follows:
i.
Did the Officer breach procedural fairness by
not considering the Applicants’ submissions sent after the decision was signed
but before it was communicated to the parties?
ii.
Did the Officer breach procedural fairness by
relying on extrinsic evidence without providing the Applicants with an
opportunity to respond?
Standard of Review
[12]
The standard of review for issues of procedural
fairness is correctness (Mission Institution v Khela, 2014 SCC 24 at
para 79 [Khela]; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43).
[13]
That standard has also been applied to the issue
of a PRRA officer’s duty to consider any evidence provided by a claimant (Avouampo
v Canada (Citizenship and Immigration), 2014 FC 1239 at para 7; Ayikeze
v Canada (Citizenship and Immigration), 2012 FC 1395 at para 13; Monongo
v Canada (Citizenship and Immigration), 2009 FC 491 at para 14) and in the
context of the RPD’s duty to consider further post-hearing submissions (Ahanin
v Canada (Citizenship and Immigration), 2012 FC 180 at para 37). The issue
of when PRRA officers should give claimants an opportunity to respond has also
been reviewed on the correctness standard (Chandidas v Canada (Citizenship
and Immigration), 2013 FC 257 at para 19; Majdalani v Canada
(Citizenship and Immigration), 2015 FC 294 at para 15; Hernandez Moreno
v Canada (Citizenship and Immigration), 2015 FC 1224 at para 15). However,
the content of the duty is flexible and may differ depending on the context (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paras 21-28; Khela at para 89).
[14]
When applying the correctness standard, a
reviewing court will undertake its own analysis of the question without
deference to the decision-maker’s reasoning. The court must decide whether it
agrees with the determination of the decision-maker; if not, the court will
substitute its own view and provide the correct answer (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 50).
Issue 1: Did the Officer breach procedural fairness by not
considering the Applicants’ submissions sent after the decision was signed but
before it was communicated to the parties?
[15]
The Respondent concedes that the Officer was
required to review materials received up to the date of the communication of
the PRRA decision or until the Applicants received notice that a PRRA decision
had been rendered (Chudal v Canada (Minister of Citizenship and Immigration),
2005 FC 1073 at para 19; Pur v Canada (Minister of Citizenship and
Immigration), 2008 FC 1109 at para 16) and that the Officer likely did not
review the evidence submitted on June 5, 2015 (“June 5, 2015 submissions”)
prior to coming to his or her conclusions.
[16]
Regardless, the Respondent submits that there
was no procedural unfairness as the June 5, 2015 submissions would not have affected
the outcome of the PRRA. This is because: the news articles all speak to a
generalized risk in Macedonia and the documentary evidence must demonstrate a
personalized risk to the Applicants, in this case based on their alleged Roma
ethnicity (Matute Andrade v Canada (Citizenship and Immigration), 2010
FC 1074 at para 48); the articles do not meet the definition of new evidence
under s 113 of the IRPA as they do not demonstrate a significant enough change
to the country conditions to render the RPD’s state protection analysis invalid
(Hausleitner v Canada (Minister of Citizenship and Immigration), 2005 FC
641 at paras 31, 36); and, the articles would not have affected the Officer’s
negative assessment as they do not add anything relevant to the articles
already on the record.
[17]
A review of the June 5, 2015 submissions, which
are entirely composed of internet news items, demonstrates that the articles
are all very similar, report on the same three incidents and, as the Respondent
submits, make absolutely no mention of the risk alleged by the Applicants based
on their Roma ethnicity.
[18]
The articles concern unrest in Macedonia,
including: public protests in May 2015 arising from the release of wiretapped
conversations between senior government officials, including the Macedonian Prime
Minister, indicating that the government hired an off-duty police officer to
kill a 22 year old man; an attack by alleged ethnic Albanian terrorists against
police in a northern Macedonian town on May 10, 2015 resulting in 22 deaths
(8 police and 14 members of the armed group), although other reports
suggest that the government may have had involvement in the incident and
question whether the armed group was supported by members of Macedonia’s ethnic
Albanian minority; and, finally, one article which spoke to the discovery of an
explosive device in a café next to a government building.
[19]
Accordingly, I agree with the Respondent that
these articles speak, if anything, to a generalized risk in Macedonia. They do
not demonstrate a personalized risk to the Applicants based on their Roma or
mixed ethnicities. The Applicants also submit that because the violent
incident on May 10, 2015 involved ethnic Albanians, and because Roma are also
an ethnic minority, that they too may be at risk. In my view, this is a
speculative link to the risk claimed by the Applicants.
[20]
The Respondent also submits that the articles do
not meet the definition of new evidence as prescribed by s 113 of the IRPA
because they do not demonstrate significant enough change to country conditions
to render the RPD’s state protection analysis invalid. In my view, in the
context of s 113, the question is whether the evidence is 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, or, material, in the sense that
the claim probably would have succeeded if the evidence had been available to
the RPD (Raza v Canada (Citizenship and Immigration), 2007 FCA 385 at
para 13). The June 5, 2015 submissions are not relevant as they do not establish
that the Applicants are personally at risk because of their Roma ethnicity, nor
do they rebut the presumption of state protection based on ethnicity or general
civic unrest. They are also not material as they are unlikely to have affected
the outcome of the RPD’s decision.
[21]
While the Applicants submit that the June 5,
2015 submissions show a “new, violent and deadly insurrection”
that began in May 2015 which “heavily affects the
State’s ability to provide protection to its nationals” and that the
situation is worsening on a daily basis, in my view, the articles do not and
could not support such an interpretation. While it is true that they document
two violent events and one potential event, this does not establish the
existence of an insurrection. Nor do the articles provide any evidence of a
change in Macedonia’s ability to protect its citizens.
[22]
I would also note that, with respect to the
documentation submitted by the Applicants that was considered by the Officer,
he or she states that some of it dealt with ethnic Albanian issues, some reports
were about violent incidents in Macedonia but were not described as arising
from anti-Roma sentiment and, while counsel described the articles as
highlighting persecution faced by Roma families, some were general accounts of
violence without context or reference. The June 5, 2015 submissions provided
similar information and, in my view, do not demonstrate a new risk or a significant
change in Macedonia’s country conditions that would have affected the outcome (Gnanaseharan
v Canada (Minister of Citizenship and Immigration), 2004 FC 872 at paras
33-40). Therefore, the fact that the Officer did not consider them does not
result in a breach of procedural fairness.
Issue 2: Did the Officer breach procedural fairness by
relying on extrinsic evidence without providing the Applicants with an
opportunity to respond?
[23]
The issue of the prohibition by the Macedonian
government on Roma citizens leaving that country was raised by the Applicants
in their initial PRRA submissions. The Applicants submit that the Macedonian
government’s refusal to let its Roma citizens leave the country was
discriminatory and racist and that they were relying on this information in
their PRRA to support persecution and a lack of state protection by the
Macedonian government. The Applicants submit that the Officer relied heavily
on the Penn State Article, which was not found in the national document package,
to refute the Applicants’ evidence in this regard. Further, that the failure
to provide the Applicants with an opportunity to respond to the extrinsic
evidence results in a breach of procedural fairness.
[24]
In this regard, the Applicants rely on the test
set out by the Federal Court of Appeal in Mancia v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461 [Mancia] as to when procedural
fairness requires disclosure of documents not found in the national document
package. In that case, in answer to a certified question, the Federal Court of
Appeal said that each case is to be decided based on its own circumstances but
that fairness requires disclosure where the documents “are
novel and significant and where the evidence changes in the general country
conditions that may affect the decision” (Mancia at para 27).
[25]
In this case, the Officer noted that the Penn State
Article states that the limits on the ability of Roma to leave Macedonia were put
in place in May 2011. The Officer found, as the Applicants left for Canada in
May 2011, that they were not personally affected by the limit. However, that
if they had any issues on return, the article also made suggestions as to the
best route to take to seek relief against the government. In that regard, the
article states that should a Roma individual wish to address his or her
grievances, including racial profiling, against the Macedonian government, then
the European Court of Human Rights is most likely to provide relief. The United
Nations High Commissioner for Refugees is also a possibility, but less likely
to provide a realistic remedy. The Officer also noted that the article states that
passports are no longer seized from people returning to Macedonia.
[26]
In my view, the Penn State Article was neither
novel nor significant, nor did it change the general country conditions such
that the RPD’s state protection analysis would be affected.
[27]
The policy precluding Roma travel was in effect
since May 2011, thus it existed at the time that the RPD made its decision in
December 2013. The article does not suggest that the policy changed during
that period. So, while the article itself may post-date the RPD’s decision and
that of the Officer, the policy in issue does not. Further, it is not
significant. This is because even if the article is in error, and there is no
suggestion that that is the case, and the travel bar is still in place, this
again is not a different situation from when the RPD rendered its decision.
Thus, the article does not evidence changes in the country conditions in a way
that would affect the RPD’s decision. Or, as stated by the Officer, it does
not show a significant change in the country conditions.
[28]
I also do not agree with the Applicants’
suggestion that the Officer uses the Penn State Article to discredit the Applicants’
fear of persecution or to attack the Applicants’ credibility. Rather, the
Officer references the article to demonstrate that there had not been a
significant change in country conditions in answer to the submission by counsel
for the Applicants that Roma are prohibited from leaving Macedonia. And, while
the article may refute that the prohibition still exists, for the reasons
stated above, fairness in the context of these circumstances did not require
disclosure and an opportunity to respond. Further, the Officer clearly stated
in his reasons that he would not be revisiting the RPD’s credibility findings
and I am satisfied that he did not do so. Therefore, I do not accept the
Applicants’ submission made at the hearing before me that the Penn State
Article was used to impugn their credibility.
[29]
Accordingly, the Officer did not breach
procedural fairness by relying on the Penn State Article without providing the
Applicants with an opportunity to respond to it.
[30]
For the above reasons, the application for
judicial review is dismissed.
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