Docket: IMM-1011-17
Citation:
2017 FC 280
[ENGLISH TRANSLATION]
Montréal, Québec, March 15, 2017
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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BOUBACAR DIALLO
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
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Respondent
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ORDER AND REASONS
[1]
Mr. Boubacar Diallo is before this court seeking
a stay of his removal from Canada for his country of origin, Guinea. An
application for a stay is an exceptional measure that must be justified. It is
also well-governed in law. In this case, the application to be
recognized as a refugee or person in need of protection was dismissed in
February 2015. The application for leave for judicial review was also
dismissed. Mr. Diallo also then submitted a request for a pre‑removal
risk assessment (PRRA), which was also dismissed, this time on February 16,
2016. The removal from Canada is scheduled for March 16 and the application
filed in this case seeks a stay of that removal that, according to the record
before the Court, was originally voluntary. In other words, this applicant
apparently did not seek an administrative stay from which an application for
leave for a judicial review could have been requested. In any event, I have reviewed
the application and found that it cannot succeed.
[2]
The test used for stays is always the same. The
applicant must satisfy the Court for each of the three parts of the tripartite
test:
- Is there a
serious issue to be determined in the underlying case?
- Will the
applicant suffer irreparable harm if he were to return to his country of
origin before his recourse is processed?
- Does the
balance of convenience favour the applicant?
(See RJR-Macdonald Inc v Canada
(Attorney General), [1994] 1 S.C.R. 311 and Toth v Canada (Minister of
Employment and Immigration) (1988), 86 NR 302 (FCA))
[3]
In the case at hand, the underlying recourse on
which the serious question must be examined is the decision related to the
pre-removal risk assessment. That is a first constraint. The serious question
is tied to the file before the PRRA officer, as the judicial review is also
limited to the file before the decision-maker. Section 113 of the Immigration
and Refugee Protection Act, SC 2001, c. 27 [the Act] sets out the
circumstances in which such an application can succeed. We need only cite paragraph
113(a), which reads as follows:
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Consideration of 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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[4]
Thus, the PRRA request is not an opportunity to
reassess what was decided by the Refugee Protection Division. This is another
constraint. Only the evidence available to the Refugee Protection Division can
be considered by the PRRA officer. In this case, the application under sections
96 and 97 of the Act was dismissed because, fundamentally, the applicant was
unable to demonstrate that he was a refugee or a person in need of protection.
On reading that short decision, we see that the applicant was not believed.
Essentially, the applicant complained of persecution by an army captain in his
country of origin because of a real estate transaction that apparently took
place between the applicant and the Captain’s father. Despite that transaction,
the army captain allegedly evicted the applicant and his family from the
premises to take them over himself following his father’s death. However, the
applicant apparently changed his version before the Refugee Protection Division
to make a general allegation that the army captain spread an accusation [translation] “among
people in the government that I was part of the coup d’état” (RPD
decision, at para 11). He stated that he no longer had any fears regarding the
land expropriated manu militari.
[5]
That version put forth at the hearing on
February 4, 2015, before the Refugee Protection Division was not believed and
the evidence in that regard was minimal and, in fact, contradicted the
applicant’s version. In fact, the application form for refugee protection in
Canada completed by the applicant stated that he is not wanted by authorities
in Guinea. In other words, the applicant raised the issue of being accused of a
coup d’état, but never supported it with any evidence and in contradiction of
his statement to obtain refugee protection.
[6]
While his request for a PRRA was pending, the
applicant had not submitted any further evidence regarding the risks that he
could face in Guinea. Thus, an initial decision was prepared on January 14,
2016, but it was clearly not communicated to the applicant when the new
elements were submitted on February 8, such that the PRRA officer chose to
examine that “new” evidence.
[7]
It must be noted that the PRRA decision prepared
when the applicant had not submitted any new evidence was certain to fail. That
was the conclusion quickly reached by the PRRA officer. Despite that, the
decision examined conditions in Guinea. Without claiming perfection, it
concluded that the ethnic group to which the applicant belongs is not systematically
targeted by the current government, which is in power following free and
democratic elections in the eyes of international observers. Without minimizing
the serious problems that persist, the PRRA officer concluded that conditions
in the country had not changed since the decision by the Refugee Protection
Division. There was nothing new since the decision by the Refugee Protection
Division.
[8]
That “evidence”
was therefore received by authorities on or about February 8, but it consisted
of typed texts dated in November and December 2016. Those new elements were
given very little weight. To be successful, the applicant thus had to show on a
balance of probabilities that those new elements were such that they
demonstrated a risk.
[9]
The PRRA officer examined the various texts
presented in extremis. He examined each one. It was agreed at the hearing that
the summary of each text in the PRRA decision was entirely compliant. Where
there was disagreement was regarding the conclusion by the PRRA officer. The texts
were given little weight, while the applicant would obviously have preferred
that they be given more. For there to be a serious question to debate in a
judicial review of the PRRA decision, the applicant had to establish a
likelihood that the judicial review would be allowed (“likelihood
of success”).
[10]
As was established in Wang v Canada (Minister
of Citizenship and Immigration), 2001 FCT 148; [2001] 3 FCR 682 [Wang],
when an applicant seeks the same relief as is sought in the application for
judicial review, it is not enough to satisfy the Court that the issue raised is
not frivolous or vexatious, but instead the likelihood of success must be
demonstrated. That is what led Pelletier J. of this court, as he then was, to
state:
[10] […] It is this congruence of the relief sought in the interlocutory and the final
application which leads me to conclude that if the same relief is sought, it
ought to be obtained on the same basis in both applications. I am therefore of
the view that where a motion for a stay is made from a removal officer’s
refusal to defer removal, the judge hearing the motion ought not simply apply
the “serious issue” test, but should go further and closely examine the merits
of the underlying application.
In my opinion, that was not demonstrated and
the likelihood of success in that regard is slim. It could even be nil. First,
it is hard to understand in the case at hand why the additional evidence
regarding an allegation that was made was not presented before the Refugee
Protection Division. The there is very little new in the content of the texts. Second,
the texts are vague and imprecise. Moreover, when referring to people far from
the applicant, we do not even know what the source may have been for the
evidence presented. Those new elements from the applicant’s former spouse, his
oldest son, an uncle, a person in the field of human rights, and the applicant’s
lawyer in Guinea are all flawed by their generality, meaning that they are
given little weight.
[11]
The applicant is therefore required to establish
the likelihood that he could convince that the decision was not reasonable,
i.e. that it is not within the range of possible, acceptable outcomes and that
it does not meet the tests of justification, intelligibility, and transparency.
Unfortunately, the applicant has far from established that. In my opinion, the
decision by the PRRA officers was not successfully challenged. In fact, it is
hard to see how any other decision could have been reached. it is not enough to
simply disagree with the conclusion. It must be shown that it was not
reasonable.
[12]
Consequently, the “new”
evidence does not, to a large degree, on its face, meet the conditions for
admission in paragraph 113(a) of the Act and, although it was accepted, as the
PRRA officer was prepared to do, they do not have the weight needed to conclude
that there is a serious question that can result in a stay.
[13]
It never goes beyond a simple possibility or the
presentation of generalities that do not advance the case.
[14]
I add that it must be remembered that, despite
everything, the PRRA officer conducted an objective documentary review of
conditions in Guinea. That evidence tends to further show that the fears of
risk are not borne out, further weakening the new general assertions in favour
of the applicant. In my opinion, irreparable harm was not demonstrated.
[15]
I would add a comment. The applicant seems to be
relying on a false premise. A question does not become serious because the
consequences would be considered unwanted by a litigant. The serious question
must be related to the underlying judicial review. The Act requires that the
three parts of the tripartite test be met. Moreover, an application for a stay
is not an opportunity to try to argue that the Refugee Protection Division
erred or that the PRRA officer erred because he did not review the decision by
the Refugee Protection Division. For the PRRA, the power conferred is limited
(but not as much as that of the law enforcement officer) and it excludes a
review of the RPD decision. That is why the starting point of the underlying
PRRA decision is that the judge who is to rule on the stay must not assume the
authority to consider anything other than what is validly before the Court. The
full review of the alleged risk is not started over. The PRRA decision can only
be reviewed to determine, in the case before us, whether there is a likelihood
of success in challenging the reasonableness of the decision, based on the
admissible evidence presented. That was not demonstrated.
[16]
The application for stay is therefore dismissed.
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