Docket: IMM-12353-23
Citation: 2024 FC 1500
[ENGLISH TRANSLATION]
Ottawa, Ontario, September 24, 2024
PRESENT: The Honourable Madam Justice Ngo
BETWEEN:
|
GIANCARLO MOTINO SORIANO
|
Applicant
|
and
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
[1] The applicant seeks judicial review of a negative decision of an immigration officer from Immigration, Refugees and Citizenship Canada [Officer] rejecting his pre-removal risk assessment [PRRA] application of June 20, 2023 [Decision]. The Officer rejected this application on the grounds that the applicant failed to provide sufficient evidence to establish that there would be a prospective risk of torture or persecution, cruel and unusual treatment or punishment, or risk to his life in the event of removal to his country of nationality or habitual residence.
[2] The applicant claims that the Officer did not reasonably assess the evidence in the record. Furthermore, the applicant argues that by refusing to hold a hearing, the Officer breached her duty of procedural fairness.
[3] For the reasons that follow, the application for judicial review is dismissed. The applicant has not demonstrated that the Decision was unreasonable. I also find that there was no breach of procedural fairness.
I. Facts and Decision under review
[4] The applicant is a citizen of Honduras. He arrived in Canada on March 18, 2017, and made a refugee protection claim. In his claim, the applicant submits that his safety is at risk from a group belonging to MS‑13, who demanded $10,000 from him and threatened him. He states that he witnessed two violent incidents in which his neighbour and a friend were beaten by the people threatening the applicant.
[5] On June 10, 2019, the Refugee Protection Division [RPD] rejected the applicant’s refugee protection claim. The determinative issue before the RPD was his credibility. It determined that the applicant had not provided sufficient [translation] “credible”
and [translation] “trustworthy”
evidence. The RPD raised several issues regarding the applicant’s lack of credibility. It also stated that [translation] “all of the answers”
obtained when the applicant was questioned were found to be [translation] “unsatisfactory and not credible”
.
[6] On June 20, 2019, the applicant was charged with assault under paragraph 266(b) of the Criminal Code of Canada, RSC 1985, c C‑46 [Criminal Code]. On January 23, 2020, and January 30, 2020, the applicant was charged with breach of conditions under subsection 145(3) of the Criminal Code.
[7] On February 10, 2020, the Refugee Appeal Division [RAD] dismissed the applicant’s appeal because it had not been perfected within the prescribed time.
[8] On April 14, 2021, the applicant was the subject of a deportation order and a subsection 44(1) report was issued, because it was determined that the applicant was inadmissible under paragraph 36(2)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[9] On May 4, 2021, the applicant submitted his PRRA application. The Officer noted that the applicant was claiming risks similar to those in his refugee protection claim, stating that he would be killed if he were to return to his country of origin. He said that he is being targeted by members of MS‑13 because he refused to pay the money demanded.
[10] The applicant submitted new evidence in his PRRA application. The documents submitted are the following:
A document from the Honduras human rights defence committee dated March 23, 2017. This document was rejected in accordance with paragraph 113(a) of the IRPA because it predated the hearing of the refugee protection claim.
A death certificate and a letter providing an update on the situation in the applicant’s community. This letter explains that several people in his neighbourhood—including his best friend—were killed by members of MS‑13 because they refused to pay the money demanded. This evidence was rejected because it had no probative value to establish the facts alleged, for example that the applicant refused to pay the money, or to counterbalance the RPD’s findings.
A letter from the applicant’s brother stating that his young brother’s life is in danger because he refused to pay the money demanded. The Officer concluded that in the absence of more details and corroborative evidence, this piece of evidence had no probative value to establish that the applicant is facing a risk to his life.
[11] The Officer also concluded that a hearing was not required since the evidence provided is not relevant to the factors in paragraph 113(b) of the IRPA and section 167 of the Immigration and Refugee Protection Regulations [IRPR].
[12] On June 20, 2023, the application was rejected. The Officer found that the applicant had failed to demonstrate that he might face more than a simple possibility of persecution within the meaning of section 96 of the IRPA. She was also of the opinion that the applicant had failed to demonstrate that there are substantial grounds to believe that he would face a danger of torture, risk to his life, or risk of unusual treatment or punishment if he were to return to his country of origin, within the meaning of paragraphs 97(1)(a) and 97(1)(b) of the IRPA.
II. Issues and standard of review
[13] The issues raised in the application for judicial review are as follows:
Is the Decision unreasonable?
Was procedural fairness breached as a result of a hearing not being held given the new evidence?
[14] Procedural fairness allegations are assessed on a basis that resembles the standard of correctness. The Court must analyze whether the procedure was fair having regard to all of the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54 to 56; Lipskaia v Canada (Attorney General), 2019 FCA 267 at para 14). The ultimate question remains whether the applicant knew the case he had to meet and had a full and fair chance to respond. The duty to act fairly has two components: (1) the right to a fair and impartial hearing before an independent decision maker, and (2) the right to be heard (Fortier v Canada (Attorney General), 2022 FC 374 at para 14; Therrien (Re), 2001 SCC 35 at para 82). Everyone has a right to the chance to present their case fully and fairly (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para 28).
[15] If it is not a matter of procedural fairness, the parties agree that the Court must review the merits of the Decision under the reasonableness standard. Indeed, the case law confirms that reasonableness applies to decisions rendered by PRRA officers, including their assessment of the evidence (Buname v Canada (Citizenship and Immigration), 2023 FC 353 at para 18, citing Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10 and 23 [Vavilov] and Tesfay v Canada (Citizenship and Immigration), 2021 FC 593 at para 5; Rinchen v Canada (Citizenship and Immigration), 2022 FC 437 at paras 15 and 16).
[16] In applying the reasonableness standard, a court does not ask what decision it would have made in place of that of the administrative decision maker. It is rooted in the principle of judicial restraint (Vavilov at para 13). It does not seek to ascertain the range of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the correct solution to the problem (Vavilov at para 83). A reviewing court cannot reweigh or reassess the evidence considered by the decision maker (Vavilov at para 125). A reasonable decision is a decision that is based on a coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker (Vavilov at para 85).
[17] The burden is on the party challenging the decision to show that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency (Vavilov at para 100).
III. Analysis
[18] The applicant argues that the Officer did not consider or balance the evidence submitted in the PRRA application. Indeed, he states that the Officer did not sufficiently assess the evidence.
[19] The applicant relies on Demesa v Canada (Citizenship and Immigration), 2020 FC 135 at paragraph 15 [Demesa] to support his argument that the Officer had a duty to assess the new evidence and not simply accept the findings of the RPD, because the new evidence could contradict the findings of the RPD regarding his credibility. In Demesa, Justice Norris explains that the purpose of a PRRA is to determine whether on the basis of a change in country conditions or on the basis of new evidence that has come to light since the RPD decision, there has been a change in the nature or degree of risk.
[20] The respondent cites Ali v Canada (Citizenship and Immigration), 2020 FC 50 [Ali] to speak to the role of PRRA officers and the deference that the Court must grant to officers’ factual findings and their analysis of the weight to be given to the evidence. The officer “must analyze the evidence and the applicant’s situation to determine whether removal would subject him to a danger of torture or persecution or to a risk to his life or to a risk of cruel and unusual treatment or punishment”
. It is the officer’s role to determine the weight that needs to be given to the submitted evidence (Ali at para 24). This is a “fact-driven inquiry”
and this determination attracts considerable deference (Nikkhoo v Canada (Citizenship and Immigration), 2022 FC 764 at para 14).
[21] The respondent also cites the Federal Court of Appeal, which states at paragraph 47 of Singh v Canada (Citizenship and Immigration), 2016 FCA 96 that “[i]n the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk.”
[22] The respondent argues that the Decision is reasonable. The Officer analyzed the new evidence provided to her but concluded that this new evidence did not contradict the RPD’s finding.
[23] I agree with the arguments put forth by the respondent. In the Decision under review, the Officer considered the circumstances that had changed between the decision of the RPD and the PRRA application. The Officer’s reasons explain why she attributed little weight to the evidence: there was either a lack of information or a lack of specificity.
[24] The applicant is ultimately asking me to weigh the evidence. It is not the function of the reviewing court to reweigh the evidence or substitute its own preferred finding (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, at paras 59 and 61).
[25] The PRRA Officer also considered the applicant’s profile and risk in his country of origin. The objective evidence in the national package described a general risk. However, the burden is on the applicant to show the connection between this fear and evidence that he would be personally targeted considering his particular situation. In this case, given the evidence in the record, it was open to the Officer to find that the applicant had failed to establish this connection. Consequently, I cannot conclude that the Decision is unreasonable.
[26] Finally, I see no breach of procedural fairness. The PRRA process usually takes place without a hearing. The Officer analyzed the new evidence submitted and considered the factors in section 113 of the IRPA and section 167 of the IRPR. It is clear from reading the Decision that the issue is that the evidence in the PRRA application was insufficient. The issue is not the applicant’s credibility given the rejection of the new evidence, which could have justified consideration of a hearing.
IV. Conclusion
[27] In conclusion, the Decision meets the requirements of justification, intelligibility and transparency according to Vavilov and is justified in relation to the facts and law that constrain the decision maker (Vavilov at para 85). The application for judicial review is therefore dismissed.
[28] The parties raised no question for certification. I agree that none arises in this matter.
Email this Content