Date: 20060330
Docket: IMM-4312-05
Citation: 2006 FC 416
Ottawa, Ontario, March 30,
2006
PRESENT: THE
HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
NAM TCHOUGLI TOLIGARA
NAZAIRE
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision by
Jacqueline Schoepfer, Pre-Removal Risk Assessment Officer (PRRA Officer), dated
June 23, 2005, that Nam Tchougli Toligara Nazaire (the applicant) was not a
Convention refugee or a person in need of protection under sections 96 and 97
of the Act.
RELEVANT FACTS
[2]
The
applicant is a citizen of Togo who is married and the father
of four children. All of his family lives in Togo.
[3]
The applicant alleges
that he worked as a rural community worker in an organization called Jeunesse
agricole rurale et catholique [“Catholic Agricultural and Rural Youth”] (JARC)
in his diocese of Dapaong, north of Togo. In October 1997, he had been elected as
Managing Director of the International Movement of this organization (MIJARC),
whose head office is in Brussels, in Belgium.
[4]
The applicant alleges
that he is a Union of Forces for Change Party (UFC) sympathizer and he says
that he became a member in 1999. On January 13, 2001, the applicant alleges
that he wanted to organize a demonstration with other members of the UFC.
However, the prefect of Dapaong prohibited it. Two days later, police officers
came to search the applicant’s home in his absence. On January 18, they came
back and warned his wife that he had to report to the police station. Fearing for his safety, the
applicant crossed the Benin border. He later learned that
his wife had been detained at the police station for two days. Upon her
release, she left with the children for an unknown destination.
[5]
From Benin, the
applicant took a plane to Belgium and arrived in Canada on February 5, 2001, where he claimed refugee
status. He had his passport as well as a Canadian visa issued on September 15,
2000, valid until March 14, 2001.
[6]
On February 18, 2002,
the Immigration and Refugee Board (the Board) determined that he was not a
Convention refugee. On March 4, 2002, the applicant submitted a risk assessment
application (PDRCC) which had not been analyzed. On December 16, 2004, the
Canada Border Services Agency warned him that his application had been
automatically transferred to the new PRRA program that came into effect with
the new Act on June 28, 2002.
[7]
On April 4, 2005,
there was a negative finding on his PRRA application. His application for an
immigrant visa exception on humanitarian and compassionate grounds was also
denied.
[8]
On May 24, 2005, the
applicant made a second application for protection in Canada, on the basis of his political opinion.
[9]
At the beginning of
the hearing, the Court noted the absence of the applicant, who was representing
himself.
[10]
However, a
verification of the record indicates that the applicant had moved from Montréal
to Toronto and that the proceedings were sent to
him at his new address.
[11]
Given the applicant’s
absence, the Court heard respondent’s counsel and refers to the applicant’s
written arguments.
ISSUES
- Was there a
breach of the principles of natural justice because the Officer
responsible for the first PRRA application was also responsible for the
second?
- Did the
Officer err in finding that the applicant was not credible?
ANALYSIS
1.
Was there a
breach of the principles of natural justice because the Officer responsible for
the first PRRA application was also responsible for the second?
[12]
The applicant raised
the fact that the applicant filed evidence regarding the situation in Togo which was not submitted to the Officer. That evidence is
found on pages 34 to 56 of the applicant’s record.
[13]
The evidence that was
not submitted to the PRRA Officer cannot be considered in the context of this
judicial review (Naredo v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 742; Owusu v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1505). To review a
decision relying on new evidence would transform the judicial review into an
appeal. Accordingly, the Court will not take into account the evidence that is
found in pages 34 to 56 of the applicant’s record.
[14]
The applicant claims
that in this case, the fact that the Officer responsible for the first PRRA
application was also responsible for the second is a breach of the principles
of natural justice because there is a lack of impartiality.
[15]
In Ahani v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J.
No. 1114, the Court of Appeal decided on the ability to be
impartial when a person is called to decide on two occasions:
The impartiality of the Trial
Judge has been challenged in this Court, but I am of the view that there is no
merit in the arguments raised. Merely because the Trial Judge was involved in
an earlier decision involving this appellant did not impair his ability to be
impartial. Justice MacGuigan, of this Court in Arthur v. Canada, [1993]
l F.C.R. 94, at p.102, stated:
Where the double
participation in decision-making has been on the part of a judge, the principle
has not seemed to have any great difficulty.
His Lordship relied on
earlier authority to the same effect in this Court. (Nord-Deutsche
Versicherungs Gesellschaft v. The Queen, [1968] l Ex. C.R. 443, at 457 per
Jackett P.); See also Mullan, Administrative Law, l C.E.D. (3d) §54,
p.3-130). At page 105, MacGuigan J.A. stated:
The most accurate
statement of the law would thus appear to be that the mere fact of a second
hearing before the same adjudicator, without more, does not give rise to
reasonable apprehension of bias, but that the presence of other factors
indicating a predisposition by the adjudicator as to the issue to be decided on
the second hearing may do so. Obviously one consideration of major significance
will be the relationship of the issues of the two hearings, and also the
finality of the second decision. If, for instance, both decisions are of an
interlocutory character, such as two decisions on detention (as in Rosario), it
may be of little significance that the matter in issue is the same, but where
the second decision is a final one as to a claimant's right to remain in the
country, the avoidance of a reasonable apprehension of bias may require greater
distinction in the issues before the tribunal on the two occasions.
[16]
In principle,
the officer responsible for the first PRRA application could be responsible for
the second, but there are rules to follow so that the officer does not fail to
observe the principles of natural justice and impartiality. In Bhallu v. Canada (Solicitor General), 2004 FC 1324, [2004] F.C.J.
No. 1623, Mr. Justice Yvon Pinard stated the requirements for an
allegation of reasonable apprehension of bias to succeed:
In order for an applicant to successfully claim
that there was a reasonable apprehension of bias in the processing of his
claim, he or she must demonstrate that an informed person, viewing the matter
realistically and practically, and having thought the matter through, would
conclude that it is more likely than not that the decision-maker would not
decide fairly (Committee for Justice and Liberty et al. v. National Energy
Board et al., [1978] 1 S.C.R. 369). In the absence of any evidence to the
contrary, it must be presumed that a decision-maker will act impartially. To
rebut this presumption, the applicant must present more than vague allegations
as to bias, which has not been done in this instance. The applicant admits that
the fact that the same officer processed both claims is not sufficient to give
rise to such a claim. However, I do not think that the fact that both decisions
were made on the same day should negate them. The Officer’s reasons leave
nothing wanting. She deals with all the evidence presented and comes to
reasonable conclusions in both instances.
[17]
The respondent claims
that the Officer could not make a fair decision because the Federal Court
sanctioned her first decision. After the negative finding on the first PRRA
application, the applicant tried to raise new facts justifying the granting of
protection. That is contrary to the applicable law and Mr. Justice Simon Noël
had told the applicant that he [TRANSLATION] “must file a new application for
judicial review if there is a negative decision on the second PPRA application”
(see the decision by the Federal Court in docket IMM-2693-05, at page 77 of the
Tribunal Record). The applicant claims that this decision by Noël J. sanctioned
the first decision by the Officer. I do not agree, Noël J. simply wanted to
direct him to the appropriate remedy and did not want to sanction the Officer.
[18]
In this case, the
applicant failed to establish that an informed person, viewing the matter
realistically and practically, and having thought the matter through, would
determine that it was more likely than not that the decision-maker had not
decided fairly. I find that the applicant failed to establish that the
decision-maker showed a lack of objectivity and impartiality.
- 2. Did the
Officer err in finding that the applicant was not credible?
[19]
In Figurado v. Canada (Solicitor General) 2005 FC 347, [2005] F.C.J. No. 458,
Mr. Justice Luc J. Martineau indicated the manner in which the PRRA
process should be qualified:
It is important to underline the fact that the
PRRA process is not an appeal of the Board's decision, but rather is intended
to be an assessment based on new facts or evidence which demonstrates that the
person at issue is now at risk of persecution, risk of torture, risk to life,
or risk of cruel and unusual treatment or punishment. In short, the purpose of
the PRRA application is not to re-argue the facts which were originally before
the Board or to do indirectly what cannot be done directly - i.e. contest the
findings of the Board. The Court notes, in this regard, that pursuant to
subsection 113(a) of the IRPA, “new evidence” is evidence that arose
after the rejection of the refugee claim or was not reasonably available at
that time, or that the applicant could not have reasonably been expected to
have presented in the circumstances.
[21]
The Officer
noted several inconsistencies that cast doubt on the credibility of the
applicant’s story. The applicant had submitted photos of the ransacked home to
support his submissions, however, during the hearing, he contradicted himself
on the location of the ransacking. Further, the conduct of his wife, who moved
to another
neighbourhood but not from
the village and who is still living in the same place, demonstrated rather that
he was not constantly harassed, as the applicant claimed. The applicant’s
brother allegedly died during the events related to the ransacking. However,
the photo of the funeral filed by the applicant does not establish any more
than that the ceremony was held and gives no indication of the deceased’s
identity. The Officer did not have any credible evidence on which she could
rely to find that the applicant was a political activist.
[22]
In Bilquess v. Canada (Minister of Citizenship and
Immigration) 2004
FC 157, [2004] F.C.J. No. 205, at paragraph 7, Pinard J. discusses
the standard of review in relation to questions of credibility:
The PRRA officer found, like
the panel that preceded her, that the applicants were not credible. The
evaluation of credibility is a question of fact and this Court cannot
substitute its decision for that of the PRRA officer unless the applicant can
show that the decision was based on an erroneous finding of fact that she made
in a perverse or capricious manner or without regard for the material before
her (see paragraph 18.1(4)(d) of the Federal Court Act,
R.S.C. 1985, c. F-7). The PRRA officer has specialised knowledge and
the authority to assess the evidence as long as her inferences are not
unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160
N.R. 315 (F.C.A.)) and her reasons are set out in clear and unmistakable
terms (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199
(F.C.A.)).
[23]
The fact that the
Officer had determined that the applicant was not a political activist, a
factor that is at the heart of his refugee claim, is not a patently
unreasonable decision. The applicant failed to establish that the Officer’s
decision was based on an erroneous finding of fact made in a perverse or
capricious manner.
[24]
Even if there is no
objective evidence of a risk of persecution tied to his personal situation, the
applicant contends that the conditions in Togo are so unpleasant that it is reasonable
for him to have a fear of a risk of persecution if he were removed.
[25]
The applicant cannot
rely on the deterioration of the situation in his country unless he can link
the objective evidence to his personal situation. In Al-Shammari v. Canada (Minister of Citizenship and
Immigration) (2002), 23
Imm. L.R. (3d) 66, at paragraph 24,
Mr. Justice Edmond P. Blanchard states:
This Court has repeatedly held that a claimant
must establish a credible link between his claim and the objective situation
prevailing in a country in order to be granted Convention refugee status (Canada
(Secretary of State) v. Jules, (1994), 84 F.T.R. 161). Accordingly, it will
not suffice for an applicant to present evidence showing problems encountered
by some of this fellow-citizens. He must also establish a connection between
his claim and the objective situation in his country.
[26]
Even if the situation
in a country may be particularly difficult, especially in terms of human rights
or safety in general, the applicant’s personal situation must still be such
that he could have an objective fear that he would be in danger of being
persecuted, tortured, or threatened.
[27]
In this matter, the
applicant has failed to persuade me that the impugned decision must be
reversed.
ORDER
THE COURT ORDERS that
- The
application for judicial review be dismissed;
- No
question will be certified.
“Pierre Blais”
Certified true translation
Kelley A. Harvey, BCL, LLB
Email this Content