Docket: IMM-2563-16
Citation:
2017 FC 116
Ottawa, Ontario, January 30, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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TSEGEREDA NUGUS
KAHSAY
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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.
Overview
[1]
The Applicant, Ms. Tsegereda Nugus Kahsay,
claims to be a citizen of Eritrea. She arrived in Canada in October 2013 and
immediately filed for refugee protection. Her refugee claim was rejected by the
Refugee Protection
Division [RPD] on February 24, 2014 on the basis that she had failed to
establish her identity. The Refugee Appeal Division upheld the RPD’s findings,
and leave for judicial review was denied on September 17, 2014.
[2]
The Applicant then filed a Pre-Removal Risk
Assessment [PRRA] application on November 6, 2015. In her application, she
states that she fled Eritrea because she had been arrested for failing to
perform mandatory military service. She provided country condition information
to support her position that she will also be at risk of persecution if she
returns to Eritrea because she is a failed refugee claimant abroad and because
she did not have permission to leave Eritrea.
[3]
In a decision dated February 8, 2016, the PRRA
Officer rejected the Applicant’s PRRA application, finding that the risks
alleged by the Applicant did not have a nexus to one of the five enumerated
grounds of the Convention and that she had not adduced sufficient evidence to
demonstrate that she faced a personalized, forward-looking risk if returned to
Eritrea.
[4]
The Applicant now seeks judicial review of that
decision. She submits that the PRRA Officer made a veiled credibility finding
and as a result, should have held an oral hearing pursuant to subsection 113(b)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The
Applicant also submits that the PRRA Officer erred in assessing the alleged risk
under section 97 of the IRPA.
II.
Analysis
[5]
The standard of review for a decision granting
an oral hearing in the context of a PRRA application has been mixed. In some
cases, the Court applies a correctness standard because the matter is viewed as
a matter of procedural fairness, while in others the reasonableness standard is
applied on the basis that the appropriateness of holding a hearing in light of
a particular context of a file calls for discretion and commands deference (Negm
v Canada (Citizenship and Immigration), 2015 FC 272 at paras 32-33; Kulanayagam
v Canada (Citizenship and Immigration), 2015 FC 101 at para 20; Bicuku v
Canada (Citizenship and Immigration), 2014 FC 339 at paras 16-19; Adetunji
v Canada (Citizenship and Immigration), 2012 FC 708 at para 24).
[6]
A PRRA Officer’s assessment of the evidence, involving questions
of mixed fact and law, is reviewable on a reasonableness standard (Mbaraga v
Canada (Citizenship and Immigration), 2015 FC 580 at para 22; Vijayaratnam v Canada
(Citizenship and Immigration), 2015 FC 48 at para 24). When reviewing
a decision against the reasonableness standard, the Court must consider 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 SCC 9
at para 47 [Dunsmuir]). Deference is owed to the decision-maker. While
there might be more than one reasonable outcome, “as
long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome” (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 59).
A.
Preliminary matters
[7]
At the outset of the hearing, counsel for the
Respondent indicated to the Court that the style of cause in this matter was
incorrect. While the department was operating under a new name, the “Minister of Citizenship and Immigration” was still
the responsible Minister under subsection 4(1) of the IRPA.
[8]
Additionally, counsel for the Respondent
reiterated the objection that was raised in the Respondent’s Further Memorandum
of Fact and Law regarding the inclusion of the Applicant’s Basis of Claim form
in her application record. While the document presumably formed part of the
record before the RPD, it was not before the PRRA Officer. The Respondent
properly noted and counsel for the Applicant agreed that the document could not
be relied upon by this Court to impugn the PRRA Officer’s decision.
[9]
Counsel for the Applicant also requested that
the Court consider the most recent version of the Immigration and Refugee Board
of Canada [IRB]’s “Responses to Information Requests”
[RIR] in relation to Eritrea, as it further corroborated the Applicant’s
contention of the risk faced by failed refugee claimants or people who left the
country illegally upon their return to Eritrea. Counsel argued that while the
September 10, 2014 version of the RIR had been included in the Applicant’s
submissions to the PRRA Officer, the PRRA Officer should have considered the
most recent version dated November 18, 2015.
[10]
There are a number of reasons why the Court will
not entertain the Applicant’s request.
[11]
First, the November 2015 RIR is not one of the
documents mentioned in the List of Documents in the National Documentation
Package found in the Certified Tribunal Record. It is well-established that the
judicial review of a tribunal decision is to be considered on the basis of the
material that was before the tribunal when it made its decision (Association
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at para 19 [Access Copyright]). While
there are a few recognized exceptions to the general rule, the Applicant has
not demonstrated that any of those exceptions apply in the present case. I
cannot agree with the Applicant’s proposition that this document might be
admissible under the “general background”
exception (Access Copyright at paras 19, 20(a), 26).
[12]
Second, even if the document could have been
adduced as evidence, it should have been put before the Court by means of an
affidavit (Canadian Copyright Licensing Agency (Access Copyright) v Alberta,
2015 FCA 268 at para 20; Kahnapace v Canada (Attorney General), 2010 FCA
70 at para 4). Moreover, the Applicant would have been required to seek an
extension of time. The Order of Mr. Justice Roy granting leave in this matter
required that any additional affidavits be served and filed by the Applicant on
or before November 14, 2016.
[13]
The November 2015 RIR was only provided to the
Court and the Respondent on the morning of the hearing. It was not attached to
an affidavit and was not the subject of prepared submissions by either party.
The Court cannot accept that parties simply hand up evidence to the bench in
this manner.
[14]
Third, while the RIR report is dated November
18, 2015, the Applicant has not adduced any evidence demonstrating when it
became available or when it was posted to the National Documentation Package.
The date which appears on the updated RIR is not necessarily indicative of the
date it became available to the PRRA Officer (Ramos v Canada (Citizenship
and Immigration), 2011 FC 15 at para 43).
[15]
On a final note, I would add that the
documentation contained in the Certified Tribunal Record and consulted by the PRRA
Officer is as contemporaneous as the November 2015 RIR, which included the
USDOS report 2014 Country Reports on Human Rights Practices – Eritrea,
dated June 25, 2015, the UK Home Office report Country Information and
Guidance Eritrea: Illegal Exit, dated September 7, 2015, and the UK Home
Office report Country Information and Guidance – Eritrea: National (incl.
Military) Service, dated September 2015.
[16]
Accordingly, the November 2015 RIR will not be
considered by the Court.
B.
Did the PRRA Officer err in failing to hold an oral
hearing?
[17]
The Applicant submits the PRRA Officer made a
veiled credibility finding in stating that the “objective
corroborative evidence” submitted by the Applicant did not overcome the
credibility concerns of the RPD or demonstrate a forward-looking risk. The PRRA
Officer was therefore required to hold an oral hearing pursuant to subsection
113(b) of the IRPA. Relying on the decision of this Court in Liban v Canada
(Citizenship and Immigration), 2008 FC 1252 at para 14, the Applicant
argued that when the PRRA Officer stated in his decision that there was “insufficient corroborative evidence” to support the
Applicant’s assertions, the PRRA Officer was in fact saying he did not believe
her.
[18]
The
Respondent states that an oral hearing was not required because the Applicant’s
credibility was not at issue, nor was it central to the claim for protection.
The fact that the PRRA Officer referred to the RPD’s credibility finding does
not also mean the PRRA Officer made a veiled credibility finding.
[19]
Subsection
113(b) of the IRPA provides that “a hearing may be held if the Minister, on the basis of prescribed
factors, is of the opinion that a hearing is required.” The prescribed factors for
determining whether a hearing is to be held, set out in section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227, include whether there is
evidence that raises a serious issue of the Applicant’s credibility and whether
the evidence is central to the decision. Thus, the Court must determine whether
a credibility finding was made explicitly or implicitly and, if so, whether it
was central to the decision (Ibrahim v Canada (Citizenship and Immigration),
2014 FC 837 at para 16).
[20]
Regardless of the standard of review, I am not
persuaded by the Applicant’s argument that an oral hearing was required or that
the PRRA Officer’s use of the words “objective
corroborative evidence” amounts to a credibility finding. While the
Respondent conceded that the PRRA Officer’s reference to the issues before the
RPD in the decision’s background information is confusing, I agree with the
Respondent that credibility was not an issue for the PRRA Officer in his
decision. Although the PRRA Officer made reference to the RPD’s credibility
finding with respect to identity, the operative conclusion was that the
Applicant had not provided sufficient objective documentary evidence to establish
a personalized, forward-looking risk upon return. When prompted by the Court,
the Applicant was unable to identify any part of the decision, other than the
use of the words “objective corroborative evidence”,
which could support her assertion that the PRRA Officer had made a credibility
finding.
[21]
The Applicant also suggested that, as the RPD did not deal with
risk but only decided on the basis of identity, she should have been entitled
to an oral hearing.
[22]
The proper approach in such situations was
discussed in Chen v Canada (Citizenship and Immigration), 2009 FC 379,
where Mr. Justice Russell stated at paragraph 55 that, notwithstanding identity
problems, PRRA Officers are still obliged to assess risk in the country of
removal. In these cases, an applicant is entitled to present to the PRRA
Officer as “new” evidence the same evidence that
was presented to (but not considered by) the RPD (Yusuf v Canada (Citizenship and Immigration), 2013 FC 591 at paras 31-32).
[23]
Here, the PRRA Officer properly went on to assess
the risk in Eritrea and ultimately found that the Applicant had failed to
adduce sufficient evidence to establish a forward-looking risk.
C.
Did the PRRA Officer err in assessing the risk
under section 97?
[24]
The Applicant submits that the PRRA Officer failed to
consider objective evidence of the risk the Applicant would face if she returns
to Eritrea. She also argues that the PRRA Officer did not consider evidence
that she was arrested for failing to perform mandatory military service.
[25]
The Respondent submits that the PRRA Officer considered each of
the Applicant’s alleged risks in light of country conditions and provided clear
reasons as to why the alleged risks were not supported by the objective
evidence. The Applicant is asking this Court to reweigh that evidence, which is
inappropriate on judicial review.
[26]
I agree with the Respondent here that the PRRA
Officer carefully considered each of the risks alleged by the Applicant in
light of country conditions in Eritrea and provided clear reasons as to why the
alleged risks were not supported by the objective evidence.
[27]
The PRRA Officer gave low probative weight to
the Applicant’s evidence in the form of general country condition documents.
While the PRRA Officer acknowledged that the documents showed that Eritrea is
plagued by corruption and basic human rights violations, the documents did not
include any direct or personal reference to the Applicant, or otherwise
demonstrate a personalized, forward-looking risk for her.
[28]
The PRRA Officer then proceeded to address each
of the risks alleged by the Applicant. With respect to her belief that she is
personally of interest to the authorities for failing to apply for permission
to leave Eritrea, the PRRA Officer referred to publicly available
documentation, including a UK Home Office report which states that more
recently not everyone who has left Eritrea illegally is detained on return.
Some persons, including draft evaders, are able to return without punishment,
provided they pay a 2% tax and sign a letter of apology or participate in the
development of the country, including the National Service. The report also
suggests that officials have become more relaxed towards young people who left
the country without permission.
[29]
Secondly, regarding the Applicant’s alleged risk
because she is a failed refugee claimant, the PRRA Officer accepted that failed
refugee claimants returning to Eritrea are considered disloyal and could be
detained or persecuted. However, the UK Home Office report states that if
failed asylum seekers return and have not committed a criminal offence, as in
the Applicant’s case, no action will be taken. The PRRA Officer found that in
any event, there was insufficient information to demonstrate that Eritrea would
be aware of the Applicant’s failed refugee claim. As such, on a balance of
probabilities, there was insufficient evidence to demonstrate that she would
face a forward-looking risk in returning to Eritrea based on her failed refugee
claim in Canada.
[30]
Finally, with respect to her alleged risk
because of her evasion of military service, the PRRA Officer found that there
was insufficient evidence to establish that she would be considered anything
more than an ordinary deserter. No evidence was provided to support the
contention that she is of personal interest to the Eritrean authorities for
having failed to complete her military duties. The PRRA Officer concluded that
mandatory conscription is, in any event, not a risk defined by sections 96 or
97 of the IRPA unless an applicant can provide sufficient objective evidence
such that it can be defined as persecution or that there is a personalized,
forward-looking risk. The Applicant failed to provide such evidence.
[31]
I disagree with the Applicant that the PRRA
Officer failed to consider her evidence of personalized risk. The statement
upon which she relies in her PRRA application is insufficient to establish a
personalized risk. While she alleges having been arrested for failing to
perform mandatory military service, she does not provide any more details on
the circumstances surrounding the arrest. She also asked the Court to consider
the statements she made in her submissions to the PRRA Officer. I fail to see
how this letter substantiates her claim.
[32]
For all of these reasons, I find the PRRA
Officer’s decision to be reasonable and to fall within the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir at para 47). While the
Applicant may disagree with the PRRA Officer’s assessment of the evidence, it
is not the role of this Court to reweigh the evidence before the PRRA Officer
and to draw a different conclusion.
[33]
Neither party proposed a question for
certification nor does one arise.
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