Date:
20060711
Docket:
IMM-6161-05
Citation:
2006 FC 866
Ottawa, Ontario, July 11, 2006
Present: THE HONOURABLE Mr. Justice Beaudry
BETWEEN:
SEWA
AGBODJAN-PRINCE
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial
review, pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 37 (the Act), of a decision of a Pre-Removal
Risk Assessment (PRRA) officer, dated August 16, 2005, finding that the
applicant would not risk persecution, torture, a threat to his life or cruel
and unusual treatment or punishment if he were to return to Togo.
ISSUES
[2] The applicant raises the following
issues:
1. Did the PRRA officer make his decision without
considering evidence offered by the applicant?
2. Did the PRRA officer err in law in expecting that the
applicant would offer some evidence prior to the hearing of his refugee claim?
[3] For the following reasons, the
answer to both these questions is negative and this application for judicial
review is dismissed.
FACTUAL CONTEXT
[4] The applicant is a citizen of Togo.
He was born March 30, 1960. He arrived in Canada on November 1, 2001, and
immediately filed a refugee claim.
[5] In the proceedings before the
tribunal, the applicant alleged that he had a well-founded fear of persecution
because of his political opinion as a result of his membership in the Ligue
Togolaise des droits de l’homme (LTDH). He said he had been receiving death
threats from government agents since 1993 and had been arrested and mistreated
by the Togolese police in 2001.
[6] This claim was dismissed by the
Refugee Protection Division of the Immigration and Refugee Board (the tribunal)
on October 16, 2003. In its reasons, the tribunal stated that it did not find
the applicant to be credible concerning his alleged presence in Togo between
1998 and 2001. The tribunal also found that the applicant’s activism had not “led the authorities to perceive him as a
risk and a threat to those in power”.
[7] The applicant filed a PRRA
application on July 15, 2004.
[8] The applicant stated that he risks
persecution, torture, a threat to his life or cruel and unusual treatment or
punishment if he were to return to Togo, due to his membership in the LTDH.
IMPUGNED DECISION
[9] The applicant’s allegations in his
PRRA application were essentially the same as those in his refugee claim.
[10] In his PRRA application, the
applicant offered the following evidence:
·
a letter from his solicitor;
·
his affidavit;
·
a Togolese identification card;
·
two letters from his cousin François Dewanu,
dated March 2, 2002 and December 4, 2003;
·
a letter dated July 12, 2004 from Ms. Olga
Lambert, president of the Cultural Association of Togolese of Ontario (CATO);
·
a report on Togo by Amnesty International, dated
March 8, 2004;
·
a 2003 report of the U.S. State Department on
human rights in Togo;
·
a 2004 report on Togo by the International
Federation for Human Rights (FILDH);
·
a news release by the Diastode association
(Diaspora Togolaise pour la Démocratie), dated July 9, 2004;
·
a news release by the International Federation
for Human Rights (FIDH), dated June 16, 2004.
[11] The PRRA officer found that there
had been no significant changes in the applicant’s personal situation, or in
conditions in Togo since the dismissal of his refugee claim. Although Togo’s
human rights record continues to be poor, the PRRA officer followed the
tribunal’s finding that the applicant was not personally at risk since he was
not a person of interest to the government.
[12] In his notes in the file, the PRRA
officer referred to the letters from the applicant’s cousin. The first letter,
he wrote, was in the applicant’s possession at the time of the hearing of his
refugee claim. This letter was not accompanied by an envelope, and the sender’s
address and telephone number are not provided. The content of the letter
referred to the applicant’s detention in 2001, and the looting of his bakery.
In its reasons, the tribunal expressed some doubts concerning the credibility
of these two allegations. The PRRA officer noted that the applicant did not
file this letter at his refugee hearing.
[13] The second letter alleged that
soldiers were hanging around the applicant’s residence in Togo.
[14] The PRRA officer noted that the
tribunal had considered this letter a “self-serving” document and had given no
probative value to it. The PRRA officer stated he was of the same opinion
concerning the two letters by the applicant’s cousin.
[15] The PRRA officer also found that the
applicant had not filed any objective evidence establishing his presence in
Togo between 1998 and 2001, or that he had been arrested on July 1, 2001.
[16] The PRRA officer found as well that
the letter by the president of the CATO had little probative value since she
relied on the applicant’s allegations. The letter stated that the members of
the LTDH are [translation] “often the prey of the established authorities”, but the
PRRA officer followed the tribunal’s finding that the level of risk depends on
the activity of the person concerned, and that the applicant’s profile was not
high enough to produce a reasonable fear of persecution.
ANALYSIS
[17] Sections 112 and
113 of the Act read as follows:
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112. (1) A person in Canada, other than a
person referred to in subsection 115(1), may, in accordance with the
regulations, apply to the Minister for protection if they are subject to a
removal order that is in force or are named in a certificate described in
subsection 77(1).
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112. (1) La personne se trouvant au
Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux
règlements, demander la protection au ministre si elle est visée par une
mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe
77(1).
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(2) Despite subsection (1), a person may
not apply for protection if
(a) they are the subject of an
authority to proceed issued under section 15 of the Extradition Act;
(b) they have made a claim to
refugee protection that has been determined under paragraph 101(1)(e)
to be ineligible;
(c) in the case of a person who
has not left Canada since the application for protection was rejected, the
prescribed period has not expired; or
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(2) Elle n’est pas admise à demander la
protection dans les cas suivants :
a) elle
est visée par un arrêté introductif d’instance pris au titre de l’article 15
de la Loi sur l’extradition;
b) sa
demande d’asile a été jugée irrecevable au titre de l’alinéa 101(1)e);
c) si elle
n’a pas quitté le Canada après le rejet de sa demande de protection, le délai
prévu par règlement n’a pas expiré;
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(d) in the case of a person who
has left Canada since the removal order came into force, less than six months
have passed since they left Canada after their claim to refugee protection was
determined to be ineligible, abandoned, withdrawn or rejected, or their
application for protection was rejected.
(3) Refugee protection may not result
from an application for protection if the person
(a) is determined to be
inadmissible on grounds of security, violating human or international rights
or organized criminality;
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d) dans le
cas contraire, six mois ne se sont pas écoulés depuis son départ consécutif
soit au rejet de sa demande d’asile ou de protection, soit à un prononcé
d’irrecevabilité, de désistement ou de retrait de sa demande d’asile.
(3) L’asile ne peut être conféré au
demandeur dans les cas suivants :
a) il est
interdit de territoire pour raison de sécurité ou pour atteinte aux droits
humains ou internationaux ou criminalité organisée;
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(b)
is determined to be inadmissible on grounds of serious criminality with
respect to a conviction in Canada punished by a term of imprisonment of at
least two years or with respect to a conviction outside Canada for an offence
that, if committed in Canada, would constitute an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years;
(c) made a claim to refugee
protection that was rejected on the basis of section F of Article 1 of the
Refugee Convention; or
(d) is named in a certificate
referred to in subsection 77(1).
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b) il est
interdit de territoire pour grande criminalité pour déclaration de
culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour
toute déclaration de culpabilité à l’extérieur du Canada pour une infraction
qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c) il a
été débouté de sa demande d’asile au titre de la section F de l’article
premier de la Convention sur les réfugiés;
d) il est
nommé au certificat visé au paragraphe 77(1).
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113. Consideration of an application for
protection shall be as follows:
(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;
(b)
a hearing may be held if the Minister, on the basis of prescribed factors, is
of the opinion that a hearing is required;
(c) in the case of an applicant
not described in subsection 112(3), consideration shall be on the basis of
sections 96 to 98;
(d) in the case of an applicant
described in subsection 112(3), consideration shall be on the basis of the
factors set out in section 97 and
(i) in the case of an applicant for
protection who is inadmissible on grounds of serious criminality, whether
they are a danger to the public in Canada, or
(ii) in the case of any other applicant,
whether the application should be refused because of the nature and severity
of acts committed by the applicant or because of the danger that the
applicant constitutes to the security of Canada.
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113. Il est disposé de la demande comme
il suit :
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;
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles
96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur
interdit de territoire pour grande criminalité constitue un danger pour le public
au Canada,
(ii) soit, dans le cas de tout autre
demandeur, du fait que la demande devrait être rejetée en raison de la nature
et de la gravité de ses actes passés ou du danger qu’il constitue pour la
sécurité du Canada.
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Standards of review
[18] The first issue involves questions of mixed fact
and law, and the standard of review is that of reasonableness simpliciter
(Figurado v. Canada (Solicitor General), 2005 FC 347, [2005] 4 F.C.R.
387, Nadarajah v. Canada (Solicitor General), 2005 FC 713, [2005] F.C.J.
No. 895 (F.C.T.D.) (QL)).
[19] The second issue
involves elements of pure law and natural justice. The applicable standard of
review on a question of pure law is that of correctness (Kim v. Canada
(Minister of Citizenship and Immigration), 2005 FC 437, [2005] F.C.J. No.
540 (F.C.T.D.) (QL)). Where there was a breach of a principle of natural
justice such as procedural fairness, no standard of review is necessary and the
impugned decision must be set aside (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817).
1. Did the PRRA officer make his decision without considering evidence
offered by the applicant?
[20] The applicant
argues that the PRRA officer made his decision without considering evidence
that had been put before him, including the report on human rights in Togo
prepared by the FILDH and the FIDH news release reporting treatment of LTDH
members by the State of Togo.
[21] The applicant
argues that this evidence was extremely important to his claim and that the officer
had a duty to consider it and refer to it in the reasons for his decision.
[22] Although there
is a presumption that the PRRA officer has considered all of the evidence put
before him, the applicant submits that the importance of this evidence is such
that he should have mentioned it in his reasons (Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(F.C.T.D.) (QL), Mahanandan v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 1228 (F.C.A.) (QL)).
[23] The respondent
replies that the PRRA officer did consider this evidence, and he relies on the
following passage from the reasons for the decision:
[translation]
Since the dismissal, President Eyadema has died and been replaced by his son,
Faure Gnassingbe. However, the human rights record remains poor. But the
changes in Togo have not affected his personal risk, given the finding that he
is not a person of interest to the government….
[24] The respondent
argues that the PRRA officer did consider the human rights situation in Togo as
described in the documentary evidence offered by the applicant, but that the
latter failed to establish any correlation between the general situation and
his personal case.
[25] Having reviewed
the reasons of the PRRA agent, I find that the officer was under no obligation
to refer explicitly to these two pieces of documentary evidence. The principle
laid down in Cepeda-Gutierrez has no application in this case, since the
officer’s findings concerning human rights in Togo are not in conflict with the
situation described by these documents.
[26] The PRRA officer
did not find that Togo was a country in which human rights were well respected
or that the State of Togo was not attacking some members of the LTDH.
[27] The applicant’s
claim was dismissed because he did not offer credible evidence establishing
that he was actually in Togo between 1998 and 2001, or that he would be
targeted by the Togolese authorities even though his participation in the LTDH
was limited to educating the people about the need not to throw garbage into
the street.
2. Did the PRRA officer err in law in expecting that the applicant
would offer some evidence prior to the hearing of his refugee claim?
[28] The applicant
submits that the PRRA officer failed to follow the procedure provided by
section 113 of the Act when he drew a negative inference from the fact that the
applicant had not filled a gap in the evidence offered at his refugee hearing.
The applicant cites the following passage from the PRRA officer’s reasons:
[translation]
The tribunal thought that if the applicant remained in Togo between 1998 and
2001, he must have some objective documentation showing his presence in that
country at that time. The applicant has had ample time since the date of the
hearing (October 31, 2003) [sic] to secure it. He has not done so.
[29] The applicant
alleges that the object of the PRRA process is to determine whether a claimant
would be in danger if he were returned to his country, and not to “retry the claim”
that was heard by the tribunal.
[30] The applicant
further notes that the PRRA application form does not contain any direction
requiring the claimant to offer evidence prior to the refugee claim.
[31] The applicant
submits that, in ruling as he did, the PRRA officer exceeded his jurisdiction
and breached the principles of natural justice by expecting that he would
adduce some evidence prior to the hearing of the refugee claim.
[32] The respondent
argues that the PRRA officer did no such thing, and notes that he even
commenced his reasons by setting out the principle of paragraph 113(a)
of the Act.
[33] The respondent
states that the PRRA officer simply found a significant gap in the applicant’s
PRRA application that had already existed at the time of the hearing of his
refugee claim: the lack of objective and credible evidence showing his presence
in Togo between 1998 and 2001. The PRRA officer accordingly did not require any
evidence prior to the refugee claim but rather noted that the applicant had
been unable to secure any new evidence establishing his presence in Togo during
the period in question, pursuant to paragraph 113(a) of the Act.
[34] Paragraph 113(a)
of the Act requires that an applicant adduce “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”.
[35] The applicant’s
allegations in his PRRA application were virtually identical to those he made
in support of his refugee claim. One of these allegations involved his presence
in Togo between 1998 and 2001. In the context of the refugee claim, the
tribunal did not find this allegation credible, in the absence of objective
evidence.
[36] In view of the
language of paragraph 113(a), it does not seem to me that the PRRA
officer erred in finding that the applicant had not presented credible evidence
establishing his presence in Togo between 1998 and 2001 which was not available
before the rejection of his refugee claim or that he could not have presented
at the time of the rejection.
[37] The fact that a
PRRA application is not an appeal of the rejected refugee claim does not exempt
the applicant from the need to adduce objective evidence in support of his
allegations.
[38] It is correct,
as the applicant submits, that the object of the PRRA process is to determine
whether the applicant would today be subject to a risk of persecution, torture,
a threat to his life or the risk of cruel and unusual treatment or punishment
if he were returned to his country.
[39] In this specific
case, the applicant alleges he is exposed to such risk because of his
membership in the LTDH and because of incidents that had occurred between 1998
and 2001.
[40] Although the
PRRA process focuses on the future risks that an applicant might face, it is
necessary, in order to assess the seriousness of the risk alleged by the
applicant, to assess the credibility of the alleged facts at the origin of the
risk.
[41] In view of the
language of paragraph 113(a) of the Act, and the statement of the
reasons of the PRRA officer, I find that the latter simply did his work when he
found that the applicant had consistently been unable to offer credible
evidence establishing his presence in Togo between 1998 and 2001, which might
have proved that he would be in danger should he return to Togo.
[42] The parties have
decided not to submit any question for certification. This case does not reveal
any.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review be dismissed. No question
shall be certified.
Judge
Certified true
translation
François Brunet,
LLB, BCL
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