Docket: IMM-2660-17
Citation:
2017 FC 1180
Ottawa, Ontario, December 21, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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SABRINA KEZIA
LIONEL
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS AND
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
[Application] of a Senior Immigration Officer’s [Officer] refusal of the
Applicant’s pre-removal risk assessment [PRRA]. For the reasons that follow, I
find no reason to interfere with the Officer’s decision.
II.
Decision
[2]
The Applicant, Sabrina Kezia Lionel, is a
citizen of St. Lucia. She sought refugee status in Canada on the basis that she
was bisexual and was assaulted by her boyfriend in St. Lucia. The Refugee
Protection Division [RPD] found that Ms. Lionel had not established, on a
balance of probabilities, either that she was bisexual or that she was
assaulted by her boyfriend. The RPD dismissed her refugee claim, determining
that it had no credible basis for the purposes of section 107(2) of Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[3]
In support of her PRRA, Ms. Lionel submitted an
unsworn letter, stating that (i) she had made a refugee claim in Canada due to
her sexuality and feared harm if returned to St. Lucia, and (ii) the father of
her son had been killed on January 8, 2017 by gunshot, along with two other
people, and that it “sadden me that this have happened
and is due to me” [sic].
[4]
Along with her letter, Ms. Lionel provided three
other pieces of evidence in support of her PRRA: (a) an article from St.
Lucia News Online, which discussed the fatal shooting of a man named Gillan
Charles and two other individuals, (b) the death certificate of Gillan Charles,
and (c) a birth certificate for her son, which indicated the father was Gillan
Charles and the mother was Sabrina Lionel. In her application forms, Ms. Lionel
also stated that that this evidence supported her request for protection
because her son’s father had been “shot due to me
connection” [sic].
[5]
The Officer, in the May 4, 2017 PRRA decision
under review [Decision], noted the history of Ms. Lionel’s failed refugee
claim, and found that Ms. Lionel had not “rebutted”
any of the RPD’s findings, but rather that she had “restated,
materially the same circumstances” she had advanced before the RPD, with
some “additional information”.
[6]
The Officer cited section 113(a) of IRPA, which
precludes an applicant from presenting new evidence on a PRRA except where the
evidence arose after, or where the applicant could not have reasonably been
expected to provide it before, the refugee claim’s rejection. The Officer also
cited section 161(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations], which provides that a person who makes written
submissions in support of a PRRA must identify how their evidence meets the
requirements of section 113(a) of IRPA and how that evidence relates to them.
[7]
The Officer reviewed Ms. Lionel’s evidence and
accepted that she had a child with Mr. Charles, and that Mr. Charles was
killed. However, the Officer found that this did not constitute “evidence of new risk development” that was “personal” to Ms. Lionel, because Ms. Lionel had not
explained the circumstances that had led to the shooting, and had merely
asserted that the shooting occurred because of her. The Officer noted that the
post from St. Lucia News Online provided no context and that no police
report or investigation had been provided.
[8]
The Officer concluded that Ms. Lionel had
provided no objective evidence linking her in any way to the shooting, and that
she was therefore neither a Convention refugee nor a person in need of
protection for the purposes of sections 96 and 97 of IRPA.
III.
Issues and Standard of Review
[9]
Ms. Lionel’s Application raises two issues: (i)
whether the Officer unreasonably dealt with her evidence, or unreasonably found
that her evidence did not constitute “evidence of a new
risk development”, and (ii) whether the Officer should have afforded Ms.
Lionel an oral hearing.
[10]
As held at paragraphs 19 and 21 of Kulanayagam
v Canada (Citizenship and Immigration), 2015 FC 101 [Kulanayagam], a
PRRA officer’s rejection of evidence on the grounds that it is not “new” evidence and findings of fact based on the evidence
submitted, are reviewable on a reasonableness standard.
[11]
Ms. Lionel submits that the decision to hold an
oral hearing is a question of procedural fairness reviewable on a correctness
standard (Duitama Gomez v Canada (Public Safety and Emergency Preparedness),
2010 FC 765 at paras 11-13). Although there is some jurisprudential divergence,
I maintain the view articulated at paragraph 20 of Kulanayagam that a
PRRA officer’s decision not to conduct an oral hearing attracts a
reasonableness standard of review (also accepted in AB v Canada (Citizenship
and Immigration), 2017 FC 629 at para 15; Balogh v Canada (Citizenship
and Immigration), 2017 FC 654 at para 23; Ikeji v Canada (Citizenship
and Immigration), 2016 FC 1422 at para 20 [Ikeji]).
IV.
Analysis
A.
New Evidence
[12]
As set out above, Ms. Lionel submitted four
pieces of evidence on her PRRA: her own statement, the St. Lucia News Online
article, Mr. Charles’ death certificate, and her son’s birth certificate. She
now raises several points with respect to the Officer’s treatment of her
evidence.
[13]
First, relying on Raza v Canada (Citizenship
and Immigration), 2007 FCA 385 [Raza] and Cech v Canada
(Citizenship and Immigration), 2016 FC 1312 [Cech] (at paras 23-24),
Ms. Lionel submits that the Officer unreasonably rejected her evidence
simply because it went to the same risks considered by the RPD or that, in the
alternative, it is not clear from the Decision why the evidence was rejected (Cech
at para 20).
[14]
Ms. Lionel then argues that, because Mr.
Charles’ shooting occurred after her failed RPD claim, the Officer unreasonably
found that her evidence did not constitute “evidence of
a new risk development”.
[15]
Finally, she submits that by finding she had
submitted no “objective” evidence linking her to
the shooting, the Officer imposed a new burden of proof on Ms. Lionel not recognized
in the jurisprudence.
[16]
I do not accept any of Ms. Lionel’s arguments
with respect to new evidence. Each argument, in my view, attacks the Decision’s
form and not its substance.
[17]
First, I do not agree that the Officer imposed a novel burden upon Ms. Lionel
in referencing the lack of objective evidence furnished. Ms. Lionel’s burden of
proof was on the balance of probabilities. Nothing in the Decision’s language
provides a basis for concluding that a different burden of proof was applied
(see Ferguson v Canada (Citizenship and Immigration), 2008 FC 903 at
paras 9-12 [Ferguson]).
[18]
Second, the Officer clearly dealt with and considered the evidence submitted
by Ms. Lionel, regardless of the Officer’s statement that the evidence was not “evidence of a new risk development”. The Officer
expressly accepted that Mr. Charles was the father of Ms. Lionel’s son and that
he had been shot and killed on January 8, 2017, but concluded that Ms. Lionel
had not established a connection between herself and the shooting. The article
from St. Lucia News Online corroborated the shooting but provided no
context. Indeed, Ms. Lionel’s own letter stated that the shooting was “due to” her, but not how the shooting was a consequence
of, or itself evidence of, her sexual orientation.
[19]
Third, I do not agree that the Officer
unreasonably rejected any of Ms. Lionel’s evidence on the sole basis that it
went to the same risks dismissed by the RPD. A PRRA is neither an appeal nor a
reconsideration of a failed refugee claim, and a PRRA officer must respect a
negative refugee determination unless there is new evidence that might have
affected the outcome of the RPD hearing (Raza at paras 12-13). Ms.
Lionel stated in her letter that her sexual orientation put her at risk of harm
in St. Lucia. This was the same allegation that the RPD did not accept, and it
was open to the Officer to determine that Ms. Lionel had not, through her
statement or any of her other evidence, rebutted the RPD’s findings on this
point.
[20]
Contrary to Ms. Lionel’s suggestions, the
Officer’s decision did not run afoul of Raza — rather, it was consistent
with it. Nor do I think that Cech assists Ms. Lionel. In that case, the
officer “hedged all bets” in rejecting the
evidence, which had been plentiful (Cech at para 20). In the
circumstances of this case, the Officer’s reasons for denying Ms. Lionel’s PRRA
are much more transparent and, as conceded by counsel at the hearing of this
Application, the evidence provided by Ms. Lionel to the Officer was very thin
at best.
[21]
Ms. Lionel takes issue with the Officer’s
treatment of her evidence, but I conclude that the Officer simply did as much
as could be done with it (see Eruabor v Canada (Citizenship and Immigration),
2008 FC 378 at para 8). The
Officer could only work with what was provided. I agree with Ms. Lionel that
the Decision was not perfect, but it still hit all relevant points in a reasonable manner.
B.
Oral Hearing and Credibility
[22]
Ms. Lionel submits that a PRRA officer must hold
an oral hearing whenever the evidence raises a serious issue of the applicant’s
credibility, in keeping with section 167 of the Regulations. More specifically,
she argues that an oral hearing is required where a full and complete
acceptance of the applicant’s version of events would have resulted in a
positive decision, relying on Negm v Canada (Citizenship and Immigration),
2015 FC 272 at para 36.
[23]
Ms. Lionel submits that she provided credible
evidence on her PRRA showing that Mr. Charles was killed, which, coupled with
her own statement that he was killed “due to”
her, ought to have led to a determination in her favour — unless the Officer disbelieved her statement, in
which case an oral hearing was required.
[24]
I disagree. The basis of the Officer’s decision was
a lack, or insufficiency, of evidence, not a finding that Ms. Lionel was not
credible. The Officer wrote:
I do not find, however, that this
constitutes evidence of a new risk development which is personal to the
applicant and which has arisen since the date of the Board’s decision […] In
light of the foregoing and as no other objective evidence has been provided, I
find that the applicant is not a Convention refugee […] nor person in need of
protection […]
[25]
A finding of insufficient evidence can be difficult
to distinguish from a finding of credibility (Ikeji at para 27). In this
case, it is not. Rather, it is clear that the Officer based the Decision on
insufficient evidence, rather than an explicit, implicit, or otherwise “veiled” credibility finding. An oral hearing was
therefore not required.
[26]
The Officer’s statement that Ms. Lionel did not
present any “objective” evidence linking her to
the shooting does not, on its own, amount to a credibility finding (see Kahsay
v Canada (Citizenship and Immigration), 2017 FC 116 at para 20). Contrary
to Ms. Lionel’s submissions, she did not state in her letter to the Officer
that Mr. Charles was killed due to her sexuality. Her letter and application
forms merely state that the shooting was “due to her”.
The Officer’s analysis appropriately finds that Ms. Lionel’s statement was
insufficient to support a connection of any kind between herself and Mr.
Charles’ death, whether on the basis of her sexuality or otherwise (see Olah
v Canada (Citizenship and Immigration), 2017 FC 921 at para 26).
[27]
Indeed, this case shares similarities with Ferguson,
where Justice Zinn explained:
34 It is also my view that there is
nothing in the officer’s decision under review which would indicate that any
part of it was based on the Applicant’s credibility. The officer neither
believes nor disbelieves that the Applicant is lesbian - he is unconvinced. He
states that there is insufficient objective evidence to establish that she is
lesbian. In short, he found that there was some evidence - the statement of
counsel - but that it was insufficient to prove, on the balance of
probabilities, that Ms. Ferguson was lesbian. In my view, that determination
does not bring into question the Applicant's credibility.
[28]
Ferguson was
followed by this Court in the recent decision Ikeji, in which Justice
Strickland relied upon the lack of detail in the applicant’s affidavit to
distinguish between “veiled credibility” and “insufficient evidence” findings (at paras 33-34).
[29]
To conclude this second issue, Ms. Lionel’s position
is ultimately that her bare statement that Mr. Charles’ shooting was “due to” her, put her credibility at play. However,
Ms. Lionel’s statement was insufficient evidence of either her own credibility
or of any connection between
herself and Mr. Charles’ shooting. The Decision was based on insufficient
evidence, not credibility, and it was therefore reasonable for the Officer to
not hold an oral hearing.
[30]
Accordingly, the Application is dismissed. No
questions for certification were proposed and none arise.
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